Chadwick v. Oregon-Washington R. & Nav. Co.

• Decision Date: 22 December 1914
• Citation: 144 P. 1165,74 Or. 19
• Parties: CHADWICK v. OREGON-WASHINGTON R. & NAVIGATION CO.
• Court: Oregon Supreme Court

144 P. 1165

74 Or. 19

CHADWICK v. OREGON-WASHINGTON R. & NAVIGATION CO.

Supreme Court of Oregon

December 22, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Action by Charles A. Chadwick against the Oregon-Washington Railroad & Navigation Company. From a judgment for plaintiff defendant appeals. Reversed, and remanded for further proceedings.

The defendant is a railway corporation engaged in interstate commerce. The plaintiff was a switch engineer in its employ stationed at La Grande, that being a division point. Some miles west of La Grande on the defendant's railway is the town of Perry. At that point a switch led from the main track to the mills of the Grande Ronde Lumber Company, and it was part of defendant's business to send switch engines from La Grande to Perry to take to the mill empty cars and bring away loaded ones for transportation into other states. On August 20, 1912, the plaintiff received an order from the defendant's train dispatcher requiring him to take his engine and run as an extra train from La Grande to Perry with right over all trains running east between those two points after meeting an extra freight train traveling east at La Grande, the order to be annulled at 6:30 o'clock p. m of that day. Under this order the plaintiff ran to Perry after having met the freight train in question at La Grande and went in upon the side track leading to the mill whereupon one of the train crew replaced the switch, so as to make the main track clear for the passage of other trains. Hillgard is a place still farther west from La Grande than Perry, and, after the order was given to the plaintiff under which he went to Perry, the defendant issued another order to another engineer by the name of Buffington to take his engine and run as an extra from La Grande to Hillgard with right over all trains running east between La Grande and Hillgard after having met the freight train above named at La Grande. Buffington started on his mission as directed. Meanwhile, the plaintiff, after having spotted the empty cars he took to Perry, attached his locomotive to some loaded cars by direction of the foreman of the crew and, in obedience to a hand signal given by the foreman, started to back out towards the main track. According to his statement he continued this movement without receiving any contrary signal until he was near the switch target controlling the switch by which he had come from the main track upon the branch to the mill, when observing that it was closed against him, he made every effort to stop the train, but without success until it had moved far enough to make the tender to his engine overhang the main track. At this juncture he claims that Buffington was approaching the spot at a recklessly rapid rate of speed and that, although plaintiff signaled Buffington by a blast of the whistle indicating the plaintiff's dangerous situation, Buffington, on account of his reckless speed, negligently failed to stop his engine, so that the same crashed into the tender of Chadwick's engine, whereby the latter was injured. He charges negligence upon the defendant in this, that, although the switch target was so situated that it was not visible to him in coming around the curve to the main track until he was within about 30 feet of the same, the defendant, by its foreman, negligently failed to notify him that the switch was closed against him. A further ground of negligence is alleged to the effect that if the switch had been left open it would have so operated the block signal still farther east towards La Grande as to indicate to Buffington that the main track was not clear for him, and in addition to this he relies upon the reckless rate of speed charged upon Buffington as above stated.

The substance of the defendant's affirmative answer is that, according to the rules of the company, with which the plaintiff was thoroughly familiar, no engineman, or other employé of the company in charge of any of its rolling stock, is permitted to use the main track of the defendant's railroad except in pursuance of written orders directing the same; that the order under which the plaintiff went from La Grande to Perry required him, and was understood by him to direct him, to go to the latter place with rights as against all trains moving to the east only; that when he reached Perry, although in advance of the time limit of 6:30 o'clock p. m., the order was fulfilled and gave him no further authority to use the main track; that other rules of the company, with which the plaintiff was familiar, required that all switches must be set to leave the main track clear after they had been used to take cars upon a branch or side track, and that "enginemen must know that switches are properly set before they pull in or out of sidings or other tracks. When a train backs in on a siding to be met or passed by another train the engineman, when his engine is clear, must see that the switch is properly set for the main track." It charges that if the plaintiff had attended to the personal duty enjoined upon him by these rules he would have seen, not only that the switch was closed against him, but that the block signal affected by the switch showed clear for the main track and consequently indicated danger to one approaching on the side track as the plaintiff was at the time. It is further alleged, in substance, that it is required by the rules of the company, of which the plaintiff had knowledge, that, under all circumstances, before he attempts to go upon the main track, in the absence of explicit written orders, it is his duty to send forward a member of his crew with a flag a sufficient distance to signal and stop any oncoming train that would meet the plaintiff in his excursion upon the main track, and that the plaintiff utterly failed to obey this rule. As to the movements of Buffington, the defendant alleges, in substance, that the duty enjoined upon the plaintiff, as a member of the switching crew attached to his engine, required him to set the switch for the main track after having gone upon the track leading to the mill, the effect of which would be, not only to make the main track clear, but also to set the block signals in such a manner as to notify Buffington that the main track was clear for him; that this duty was performed by the switching crew with the plaintiff so that the block signals invited Buffington to proceed; that he did so, and was moving at a moderate and reasonable rate of speed when the plaintiff negligently ran so near to the main track as to foul the same with his tender so suddenly that Buffington, although he used every effort to stop his train, was unable to do so until the collision ensued of which the plaintiff complains. In brief, the effect of the defendant's answer, after traversing the complaint in material particulars, is to charge that plaintiff's disobedience of the rules of the company, prescribed for the movement of its trains, with which the plaintiff was familiar, constituted the sole cause of the injury which he suffered. The reply, after denying material parts of the answer, reiterates what is stated in the complaint to the effect that it was customary in switching operations at Perry to leave the switch open to the side track, so that its operation upon the block signals would indicate to the train moving west that the main track was not clear, with the result that the block signals themselves would act as protection to the plaintiff without the use of a flag while moving upon the main track. After a jury trial the plaintiff had a verdict and judgment, from which the defendant appeals.

C. E. Cochran, of Portland (W. W. Cotton and A. C. Spencer, both of Portland, on the brief), for appellant. Arthur I. Moulton, of Portland, for respondent.

BURNETT, J. (after stating the facts as above).

This action is brought under the act of Congress of April 22, 1908, as amended by that body in 1910. U.S. Compiled Stat. 1913, §§ 8657-8665. It is there said:

"That every common carrier by railroad while engaging in commerce between any of the several states or territories * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier. * * * In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employé, or where such injuries have resulted in his death, the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé.

* * *"

It will be observed that by this statute contributory negligence is not an entire defense against an injured employé where any negligence of the defendant or any of its other employés is shown which caused the injury of the plaintiff either in whole or in part. The utmost that can be claimed for the contributory negligence of the plaintiff is mitigation of damages. In short, the contributory negligence of the plaintiff, alone, will not operate to defeat his cause of action, but may be shown to reduce the damages which he might otherwise claim in the proportion which his own negligence bears to the sum total of all negligence affecting the transaction from every source. Louisville, etc., Ry Co. v. Wene, 202 F. 887, 121 C. C. A. 245; Norfolk, etc., Ry. Co. v. Earnest,...