Brunell v. Southern P. Co.
| Decision Date | 13 February 1899 |
| Citation | 34 Or. 256,56 P. 129 |
| Parties | BRUNELL v. SOUTHERN PAC. CO. |
| Court | Oregon Supreme Court |
Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.
Action by Victor Brunell against the Southern Pacific Company. From a judgment for plaintiff, defendant appeals. Reversed.
This is an action to recover damages for an injury alleged to have been caused by defendant's negligence. The plaintiff, an experienced section hand, about 22 years old, was at the time of the accident employed with other laborers in surfacing the track on a spur of defendant's railroad leading from Sheridan easterly to Sheridan Junction, and while so engaged a hand car coming from Sheridan, propelled by bridge carpenters, suddenly came up behind plaintiff, who, with his fellow laborers, jumped from the track; but one of them, in his hurry to escape danger, dropped his tamping bar, which being struck by the car, was thrown against plaintiff breaking his leg. It appears that a train left Sheridan each morning at 6 o'clock, and that no other train or engine could pass over the line during the day, unless it came from Sheridan Junction, in view of which the overseer in charge of the men with whom plaintiff worked placed a flag beside the track to the east of them, but none to the west. The injury occurred about three-fourths of a mile east of Sheridan, from which place the railroad is built in a straight line over an open, level prairie, and it was possible for plaintiff to have seen a moving hand car on the track anywhere between him and the station. True, plaintiff had been in defendant's employ only four days, but he knew that the men engaged in repairing bridges passed over the track on a hand car leaving Sheridan each morning at about 7 o'clock, and returning in the evening. The negligence alleged as constituting the cause of action consists in defendant's failure to place a signal beside the track west of the place where plaintiff was working, or to set a person to watch the approach of hand cars coming from that direction. The answer having denied the material allegations of the complaint, averred that the injury was caused by plaintiff's negligence and the carelessness of his fellow servants. The cause, being at issue, was tried, resulting in a judgment for plaintiff for the sum of $700, and defendant appeals.
W.D. Fenton, for appellant.
Dell Stuart, for respondent.
MOORE J. (after stating the facts).
It is contended by defendant's counsel that the evidence introduced at the trial, the substance of which is hereinbefore stated, fails to show any breach of his client's duty, and hence the court erred in denying his motion for a judgment of nonsuit; while plaintiff's counsel maintains that defendant was in duty bound to exercise reasonable care to select a safe place in which plaintiff should perform the service demanded of him, but, having failed to set a signal, or to place a person to watch the approach of hand cars coming from the west, the place was rendered dangerous, in consequence of which the defendant is liable for the injury which resulted from its negligence in this respect.
One of the rules of the common law is that the master must exercise reasonable care to provide a suitable place in which the servant can perform the labor demanded of him, without being exposed to dangers which do not of necessity attend the exercise of the employment, and that the master cannot delegate the performance of this duty to a subordinate, and thus escape the effect of the latter's negligence, but that the person so selected to provide a suitable place, though he may be a fellow servant of the person injured by his negligence, is pro hac vice a representative of the master. Busw.Pers.Inj. § 192; McKinney, Fell.Serv. § 29; Anderson v. Bennett, 16 Or. 527, 19 P. 765; Knahtla v. Railway Co., 21 Or. 136, 27 P. 91; Mast v. Kern (Or.) 54 P. 950; Smith v. Car Works, 60 Mich. 501, 27 N.W. 662; Coombs v. Cordage Co., 102 Mass. 572; Sweat v. Railroad Co., 156 Mass. 284, 31 N.E. 296; Ryan v. Fowler, 24 N.Y. 410; Filbert v. Canal Co., 121 N.Y. 207, 23 N.E. 1104; Kaspari v. Marsh, 74 Wis. 562, 43 N.W. 368.
This rule, as applied to a railroad company, requires it, in providing a safe place in which to perform the labor demanded of a servant, to exercise ordinary and reasonable care,--having regard to the hazard of the service,--to put its roadbed and tracks in a reasonably safe condition, and to exercise like care to keep them in repair and free from obstruction. Railroad Co. v. Ogden, 3 Colo. 499; Railroad Co. v. Myers, 11 C.C.A. 439, 63 F. 793; Railroad Co. v. Johnson, 27 C.C.A. 367, 81 F. 679; Bowen v. Railway Co., 95 Mo. 268, 8 S.W. 230; O'Donnell v. Railroad Co., 59 Pa.St. 239; Calvo v. Railroad Co., 23 S.C. 526; Torian's Adm'r v. Railroad Co., 84 Va. 192, 4 S.E. 339; Bessex v. Railway Co., 45 Wis. 477. To entitle a servant, however, to recover damages for an injury caused by the alleged negligence of the master in failing to exercise ordinary and reasonable care in putting or keeping in good condition the place in which the service is to be performed, the evidence must show that the master knew, or ought to have known, of the defect which rendered the place dangerous, and that the servant, notwithstanding he exercised ordinary and reasonable care to protect himself, was ignorant of the peril to which he was exposed. Griffiths v. Docks Co., 13 Q.B.Div. 259; Thomas v. Quartermaine, 18 Q.B.Div. 685; Railroad Co. v. Campbell, 97 Ala. 147, 12 So. 574; Erskine v. Beet-Sugar Co., 71 F. 270; Richardson v. Cooper, 88 Ill. 270; Railway Co. v. Corps, 124 Ind. 427, 24 N.E. 1046; Matchett v. Railway Co., 132 Ind. 334, 31 N.E. 792; Coal Co. v. Albani, 12 Ind.App. 497, 40 N.E. 702; Buzzell v. Manufacturing Co., 48 Me. 113; Laning v. Railroad Co., 49 N.Y. 521; Mixter v. Coal Co., 152 Pa.St. 395, 25 A. 587.
The following cases, cited and relied upon by plaintiff's counsel to sustain the judgment, illustrate the legal principle that the defect which rendered the place dangerous was open, and the master could have discovered it by the exercise of reasonable diligence, but the servant, relying upon the presumption that this duty had been fully discharged, was injured without knowledge of the peril to which he was negligently endangered: Anderson v. Bennett supra; Lewis v. Railroad Co., 59 Mo. 495; Hall v. Railway Co., 74 Mo. 298; Vautrain v. Railway Co., 8 Mo.App. 538; Snow v. Railroad Co., 8 Allen, 441; Moon's Adm'r v. Railroad Co., 78 Va. 745; Hulehan v. Railroad Co., 68 Wis. 520, 32 N.W. 529; Davis v. Railroad Co., 55 Vt. 84. In the case at bar, however, the injury upon which the action is based was not caused by any defect in the place where the service was to be performed; but it primarily resulted from the negligence of the men who operated the hand car, combined with the carelessness of the man who dropped his tamping bar. This presents the question whether, in view of the fact that plaintiff and his fellow workmen were seen by the bridge carpenters in sufficient time to have avoided the injury, and considering that plaintiff knew that these employés would pass over the line that morning, it was a breach of the master's duty, in failing to place a signal, or to adopt some other means to protect the men at work on the track against accidents which might be caused by the negligence of those who operated hand cars. Signal flags are used by the company to notify the persons in charge of its locomotives that the roadbed or track is in a dangerous condition, requiring them to stop their engines, or admonishing them to proceed with care; and, to accomplish the object for which these tokens are designed, prudence dictates that they should be placed at such a reasonable distance from the point of peril as to enable the engineer and those associated with him to get such control of its train as to be able to stop it or slacken its speed before reaching the defect which renders further progress dangerous. The chief purpose which these danger signals serve must necessarily be to protect the lives of those who operate, or are passengers on, the train, which, by reason of its great weight and rapid movement, creates such momentum...
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