Carlson v. Oregon Short Line & U.N. Ry. Co.

• Decision Date: 04 January 1892
• Citation: 28 P. 497,21 Or. 450
• Parties: CARLSON v. OREGON SHORT-LINE & U.N. RY. CO. [1]
• Court: Oregon Supreme Court

28 P. 497

21 Or. 450

CARLSON v. OREGON SHORT-LINE & U.N. RY. CO. ^[1]

Supreme Court of Oregon

January 4, 1892

Appeal from circuit court, Wasco county; Z.R. WEBSTER, Judge.

Action by John Carlson, administrator, against the Oregon Short-Line & Utah Northern Railway Company for the death of plaintiff's decedent. Plaintiff had judgment for $3,066.66, and defendant appeals. Reversed.

Zera Snow, for appellant.

A.S Bennett, for respondent.

BEAN J.

This is an action to recover damages for the death of plaintiff's intestate, caused by a wreck on defendant's road, from the giving way of a bridge and the falling through of a work-train on which deceased was being carried. At the time of the accident the road of defendant was obstructed by slides and washouts, caused by unusual storms, and the deceased was engaged, with other employes of defendant, in removing the obstructions, and repairing the road, and placing it in a condition for use. The accident occurred at the time and place and under the circumstances as detailed in Knahtla v. This Defendant, reported in 21 Or. 136, 27 P. 91 and any further statement of the facts is unnecessary here.

The court instructed the jury that it is a personal duty the master owes the servant to provide a reasonably safe place for him to work, and to use due and reasonable diligence to make and keep its road-bed and bridges safe for the carriage of persons over the same, and this duty cannot be delegated to an employe so as to relieve it from liability; and if the master undertakes to carry the servant over its railroad from one place to another, for the performance of the duties of such servant, it is the duty of the master to furnish a reasonably safe road-bed upon which to carry the servant to his work, and for any neglect of this duty the master is liable to an injured servant. As an abstract proposition of law, this rule is probably correct, and in a proper case would be unobjectionable. ( Anderson v. Bennett, 16 Or. 515, 19 P. 765; Miller v. Pacific Co., 20 Or 285, 26 P. 70;) but it can have no application to the facts in this case. Here the road of defendant was known to the deceased to be out of repair, and in a dilapidated condition, so much so that the traffic thereon was entirely suspended, and the deceased was employed to assist in putting it in a reasonably safe condition for the passage of trains. In accepting such employment, and undertaking to perform the services required of him, he voluntarily and necessarily assumed, as part of his contract of employment, the risks incident thereto, among which was the dilapidated condition of the track The rule that the master is bound to use reasonable care and skill to furnish his servants safe and suitable instruments and appliances to perform the services in which they are engaged, only applies when such instrumentalities are placed in their hands for use. McKin.Fel.Serv. § 26; Murphy v. Railroad Co., 88 N.Y. 146. It has no application to the safety and condition of the thing which the servant is employed to repair. Where a servant is employed to put a thing in a safe and suitable condition for use, it would be unreasonable and inconsistent to require the master to have it in safe condition and good repair for the purpose of such employment. The effect of such a rule would be to render the master liable as an insurer of the safety of his servant, and entirely abrogate the well-settled doctrine that the servant assumes the risks and perils incident to his employment. Where a servant is employed to assist in repairing or opening a railroad, which is in a dilapidated condition and out of repair, the master does not owe to him the same duty to furnish a safe road-bed as to that portion of the road out of repair as it does to a servant engaged in the operation of trains upon the road in the ordinary course of business, or in riding upon the road in the course of his employment. In the former case, the servant, in performing the services in which he is engaged, understands that he is not working or riding upon a road which is in good condition, but upon one which is out of repair, and he is therefore subjected to greater risks and perils than he would be under ordinary circumstances. In entering the service he assumes the hazards incident to the same and for which he is presumed to stipulate in fixing his compensation. One of these hazards is the condition of the road he is engaged to repair,-- McKin.Fel.Serv. § 30; Bryant v. Railroad Co., (Iowa,) 23 N.W. 678; Howland v. Railway Co., 54 Wis. 226, 11 N.W. 529; Brick v. Railroad Co., 98 N.Y. 211,--while, in the case of a servant or train hand engaged in the operation of the road or riding on the road, in the ordinary course of business, it is implied, as a part of the contract of employment, that the master shall observe all the care which the exigencies of the situation reasonably require in furnishing and maintaining a track and road-bed adequately safe for use. By the instruction as given in this case, the jury was told, in effect, that, although the deceased knew that the track of defendant, obstructed by slides and damaged by storms, was not in a safe and proper condition for use, and, with knowledge of that fact, went upon a train with the express purpose of repairing such damages and removing the slides, or assisting others to do so, yet, nevertheless, the defendant was bound to furnish him exactly the same reasonably safe track and road-bed which the law would have required it to furnish had he been engaged in the operation of a train thereon in the ordinary course of business, or had he been riding over a road presumably in good condition in the course of his work. This was not the correct measure of the defendant's duty towards the deceased, under the facts of this case. "While the rule is generally applicable," says McKinley, "that when it is the duty of the employe of a railroad corporation, in the course of his work, to ride over the road of the corporation, it is its duty to provide a track suitable and sufficient for the purpose, and to maintain it in good order, it must be considered with some qualification when the road has become dilapidated and out of repair, and is in the process of reconstruction, in which work the employe is engaged." McKin.Fel.Serv. p. 82. In this case the track of defendant's road was placed in the hands of deceased, with other employes, to be repaired and put in a condition so it could be used, and not for actual use, as in Meloy v. Railroad Co., 77 Iowa, 743, 42 N.W. 563; Bowen v. Railroad Co., 95 Mo. 268, 8 S.W.Rep. 230; Rosenbaum v. Railroad Co., 38 Minn. 173, 36 N.W. 447; and Madden v. Railroad Co., 32 Minn. 303, 20 N.W. 317; and this is the distinguishing feature between the case at bar and the cases cited. In the case of Madden v. Railroad Co., supra, it is said that the duty of the master in respect to the instruments and means furnished his servant to perform his service is the same, whatever the nature of the service may be, whether it be to repair or to do any other thing; and that there is no difference as to the duty of the master and the assumption of risk by the servant between an employment to make repairs and any other employment. As far as we have been able to discover, there is no other case in the books holding a similar doctrine, where the employe was injured while on a construction or repairing train, and himself engaged in the work of repair; and the learned editor of the American and English Railroad Cases, in a note to this case, in volume 18, p. 67, of that work, expresses considerable doubt as to the soundness of this decision.

The fact that the particular bridge at which the accident occurred was not known to be out of repair, or that deceased was not employed to assist in repairing this bridge, cannot change the rule, or take this case out of the exception to the rule, requiring the master to furnish a reasonably safe track and road-bed for its employes. It was known that the track of defendant's road from the Cascade Locks west for several miles, was obstructed by land-slides and washouts caused by the unusual, if not extraordinary, storms then prevailing; and deceased was employed to go out upon the road, and assist in putting it in condition for use, making such repairs as might be necessary, and wherever needed. The particular labor in which he was engaged at the time of the casualty involved the use of the very track which he was employed to assist in repairing. The train upon which he was riding was, with the workmen aboard, patroling the road, under the direction of the road-master, for the purpose of opening and repairing the same, and was the means of transportation from one place to another, as the necessities of the work might require. He therefore took upon himself the risks necessarily incident to the employment, from the damaged condition of the track, unless, perhaps, they were latent, and known to the master, but not known to nor by the use of proper diligence discoverable by him; but he did not take on himself risks, if any, which arose by reason of the negligence of the master, unless they were known to him, or by the use of proper diligence were discoverable by him. So far as the danger of making the repairs was increased by the damaged condition of the track, from natural causes, he assumed the risks of such enhanced danger; but if it was increased by the neglect of the master to use proper care, before the storm, to keep the bridge in repair, or to ascertain the condition of the track or bridge after the storm, or to take such due and proper precautionary measures to prevent accidents to its employes as the exigencies of the situation might...