Campbell v. Southern P. Co.

• Decision Date: 03 November 1926
• Citation: 250 P. 622,120 Or. 122
• Parties: CAMPBELL v. SOUTHERN PAC. CO. [a1]
• Court: Oregon Supreme Court

250 P. 622

120 Or. 122

CAMPBELL v. SOUTHERN PAC. CO. ^[a1]

Supreme Court of Oregon

November 3, 1926

Department 1.

Appeal from Circuit Court, Multnomah County; J. U. Campbell, Judge.

Action by Curtis W. Campbell against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

This action was brought by the plaintiff to recover damages from the defendant for personal injuries received in the course of his employment. He was a switchman and engaged in switching cars in the yards at Eugene. Desiring to look into an ordinary freight car for the purpose of ascertaining whether or not it was empty, he placed his feet on the truss rod underneath the car and took hold of the handle of the door to raise himself so as to look into the car. The handle of the door gave way and the plaintiff fell, resulting in the injury for which he seeks to recover damages. This action was instituted under the federal Employers' Liability Act (U S. Comp. St. §§ 8657-8665). At the close of the testimony the defendant moved for a directed verdict. The motion was denied, and a verdict for plaintiff was returned by the jury. A judgment was duly entered in accordance with the verdict. Defendant appeals, assigning a number of errors, including the ruling of the court on the motion for a directed verdict. That motion is based upon the ground that the complaint does not state facts sufficient, and there is no evidence of negligence on the part of the defendant. Other alleged errors were assigned in support of the motion, but it is not deemed necessary to consider them in this opinion.

Roscoe C. Nelson, of Portland (Ben C. Dey and Roscoe Nelson, both of Portland, on the brief), for appellant.

Wm. P Lord, of Portland (Lord & Moulton, of Portland, on the brief), for respondent.

COSHOW. J. (after stating the facts as above).

It is settled law that, in an action under the federal Employers' Liability Act, it is necessary for the plaintiff to allege and prove negligence in order to recover. A door handle on a box car is not one of the safety appliances mentioned in the Safety Appliance Act (U. S. Comp. St. § 8605 et seq.). The same rule of evidence therefore obtains in this case as would control in a common-law action for negligence. Mondou v New York R. R. Co., 223 U.S. 49, 32 S.Ct. 169, 56 L.Ed 346, 38 L. R. A. (N. S.) 44; New Orleans & N.E. R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167; Looney v. Metropolitan R. Co., 200 U.S. 480, 486, 26 S.Ct. 303, 50 L.Ed. 564; Finn v. Oregon W. P. & Ry. Co., 51 Or. 66, 93 P. 690; Duntley v. Inman, 42 Or. 334, 70 P. 529, 59 L. R. A. 785. These authorities and many others announce the doctrine that a railroad company is not the insurer of the safety of the appliances and tools, but it is charged with the exercise of reasonable care to furnish its employees with reasonably safe tools adapted to the purpose for which they are to be used and a reasonably safe place in which to work. Rush v. Oregon Power Co., 51 Or. 519, 525, 95 P. 193.

The evidence relied upon by the plaintiff to establish negligence on the part of defendant is as follows: Plaintiff testified that the foreman of a switching crew has a switching list containing the number of cars to be moved; that--

"the switch lists, supposed to be correct, but they are not; sometimes they are and sometimes they are not.

"Q. What does the man following the engine do? A. To go in on that track he couples the engine on, and, when they pull out over the switch, he makes the cut of cars, how many of them they want to let loose, if they want to kick them.

"Q. What, if anything, does he do, usually, ordinarily, with respect to observing the condition and contents of the cars that are in the train? A. Well, if he looks in, he saves himself that extra walking. He knows where the cuts are going to be.

"Q. How can you tell where your cuts are going to be by looking into the cars? A. Well, you know you are taking the empties and leaving the loads, or part loads.

"Q. Now, in the ordinary practice of railroading, under such circumstances as that, just explain to the jury how the brakeman or the man following the engine observes the inside of a car. A. Well, as tall as I am, if the car is standing still, I can look in by standing on the ground. If the car is moving a little, you can't look in by standing on the ground because you can't see where you are walking when looking into the car. You would have to put your feet on the truss rod and put your hands on the handle of the door and look in. The handle of the door--

"Q. In the experience railroading you have had, how often is it that a man following the engine puts his foot on the truss rod and takes hold of the door handle and swings up and looks in? A. I have seen it happen several times a day.

"Q. Is there any other way of looking in when the car is in motion? A. No way whatever."

Witnesses for plaintiff, C. C. Hibbard and Warren Wilson, testified to the same effect. Hibbard testified as follows:

"Q. Do you know what is the usual and customary method followed by switchmen and brakemen getting into the ordinary box cars that are used by the Southern Pacific Company? A. Well, about the only way you can get in is to catch hold of the handle of the door, and put your foot on the truss rod, and catch hold of the side of the door with your other hand, and put your knee up in their, or your other foot, and pull yourself up.

"Q. And how are those handles on the other side constructed? A. Why, they are either put on by lag screws or bolted through the door.

"Q. What is the fact as to whether they are commonly strong enough to sustain the strain that is put on them by pulling up that way? A. Yes, I have never had one to give way with me. They seem to be plenty strong enough to hold.

"Q. How frequently do trainmen use them for that purpose? A. Very often. Whenever they have need to get into a car when they are using the car for local freight or have to get in for any reason."

Cross-examination:

"Q. And you say it was customary for you, when a train was moving, to grab hold of the handle of a door and swing your feet on the truss rods to look inside of the car? A. That is about the only way you could do it, if the train was moving."

Wilson testified:

"Q. What is the usual and customary method of a brakeman looking into a moving car to see what is in it? A. Why, the only method is to grab hold of the handhold of the door with one hand and the edge of the door with the other, and use the truss rods as a stirrup to look in.

"Q. Does that occur very often in yard service? A. Every day.

"Q. Are those handholds on the doors of sufficient weight to sustain a man's weight, ordinarily? A. Why, yes."

Plaintiff also relies upon the testimony of two witnesses for the defendant. F. E. Cavender, master car repairer of the defendant, testified to the effect that all of the cars of the defendant or under its control are inspected before any switching is done in the yards at Eugene; that, in case a handle on the door of a car is found out of order, it is either repaired there on the track or is taken off and later properly attached to the car. Mr. Harrington, the yardmaster at Eugene, who had full charge of the movement of the cars in the yards at Eugene, testified that the door handles were seldom ever used for sliding the doors and further:

"It is very handy to take hold of the handle when the door opens easily.

"Q. Well, what is the fact as to whether or not it is the practice for brakemen, switchmen and yardmen to ride the trains by grabbing this handle on the door and throwing their feet on the truss rod underneath? A. Well, that has been done a great many times." But this witness also testified to the effect that, when he had seen brakemen or switchmen so using the door handle and the truss rod, he had invariably ordered them to stop it and that the practice was dangerous. Meyers, another witness for the defendant, also testified that there were lots of men using the door handle as plaintiff did when he received the injury. The witness Cavender also testified that the door handle was not designed to stand the strain of a pull such as it received when the plaintiff received his injury; that the fact that a handle on the door was loose was not considered a defect, but it was generally removed so it would not be lost or become a hazard at any time. A great many cars were used without handles on the door. There is no evidence that we have been able to find, and none has been pointed out to us in the brief, which brings home to the company the knowledge that the door handles and truss rods were being used as plaintiff was using them at the time of his injury. The only connection between the alleged custom of the switchmen so using the door handle is the testimony of Meyers who was a member of the switching crew at the time plaintiff was injured. Both Cavender and Harrington testified that it was a dangerous practice and absolutely forbidden by the officials of the company when their attention was directed to it. There is an entire absence of any conduct on the part of the company indicating acquiescence in such use of the door handle. There is no evidence to indicate that the company had any reason

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