Caplinger v. Northern Pac. Terminal

• Decision Date: 09 September 1966
• Citation: 244 Or. 289,418 P.2d 34
• Parties: Joseph CAPLINGER, Appellant, v. NORTHERN PACIFIC TERMINAL of Oregon, a corporation, Respondent.
• Court: Oregon Supreme Court

Page 34

418 P.2d 34

244 Or. 289

Joseph CAPLINGER, Appellant, v. NORTHERN PACIFIC TERMINAL of Oregon, a corporation, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted June 6, 1966.

Decided Sept. 9, 1966.

Carlton R. Reiter, Portland, argued the cause for appellant. With him on the briefs were James G. Breathouwer, and Reiter, Day, Anderson & Wall, Portland.

Douglas G. Houser, Portland, argued the cause for respondent. With him on the brief were Pendergrass, Spackman, Bullivant & Wright, R. R. Bullivant and Darrel L. Johnson, Portland.

Before McALLISTER, C.J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and LUSK, JJ.

SLOAN, Justice.

This is a Federal Employers' Liability Act case. Plaintiff was injured when he was working as a member of a crew engaged in a switching operation in defendant's yard in Portland. The injury occurred when he partially fell from the top of a box car to which he had gone to set the brake. As he attempted to climb down the ladder from the top of the car, his feet slipped and in the process of catching a rung of the ladder to avoid falling, he was injured. His claim of negligence was that defendant had permitted water and grease to accumulate in the area where plaintiff had been obliged to walk before he climbed onto the car and that he slipped because his shoes were, therefor, greasy and slick. Defendant plead contributory negligence. The jury found for defendant. Plaintiff appeals.

The first assignment of error is directed at the court's instruction on the burden of proof. The instruction given was the commonplace one. The exception to the instruction, in part, was that the court was requested to change the instructions to '* * * tell the jury that it is for them to choose from the number of probabilities that they find in the evidence which is the more probable.' The meaning of the exception taken is not clear. Whatever it was intended to mean no authority is cited to sustain the abstract exception except some of the language of the Supreme Court in Rogers v. Missouri Pacific Railroad Co., 1957, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493. We can find nothing in the Rogers' opinion, or any other, that indicates that the instruction given was wrong.

The second assignment claims that the court should have withdrawn the plea of contributory negligence. The evidence would have warranted the jury in finding that the cause of plaintiff's fall was the manner in which he chose to get off the top of the car and not because of muddy shoes. This was a jury question.

The last assignment is more difficult. It relates to the instruction given on causation. The court first instructed that if the defendant was negligent and the negligence contributed in any way, no matter how slight, towards plaintiff's injury, then it should consider that plaintiff's injury was caused by defendant's negligence. The court then added: 'In considering contributory negligence, this same rule would apply'. The court thus allowed both parties the benefit of a 'simple cause' instruction. See 18 Stanford L.Rev. 929 (1966), Legal Cause, Proximate Cause, and Comparative Negligence in the FELA. This is in contrast to the more traditional and more complicated instruction on proximate cause. In other words, plaintiff wanted defendant held liable if there was a simple causal connection between defendant's negligence and his injury, but not in respect to plaintiff's alleged contributory negligence. The same argument was advanced in Page v. St. Louis Southwestern Railway Co., (CCA 5th, 1965) 349 F.2d 820, 822. In...