Cheffings v. Hines

Decision Date27 April 1922
Citation206 P. 726,104 Or. 81
PartiesCHEFFINGS v. HINES, DIRECTOR GENERAL OF RAILROADS.
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by Estella Cheffings, administratrix of the estate of Charles Cheffings, deceased, against Walker D. Hines, Director General of Railroads. From a judgment for plaintiff defendant appeals. Reversed and remanded.

The defendant is director of a railway corporation engaged in interstate commerce. The plaintiff is prosecuting this action as administratrix of the estate of Charles Cheffings deceased, to recover damages for the death of the decedent while in the employment of defendant. The action is brought under the federal Employers' Liability Act (U. S. Comp St. §§ 8657-8665). Cheffings died on March 26, 1918, from the effects of injuries received on that date by the collision of motortrucks engaged in conveying employees of the defendant to their work on its tracks. He was 56 years of age, the husband of plaintiff, and the father of Floyd Cheffings and Wesley Cheffings, 24 and 29 years of age.

Cheffings was one of what was known as, and commonly called, an extra gang, which had for its duties the fixing and repairing of the track, roadbed, and lines of defendant company. The complaint alleges:

"That upon the morning of the 26th day of March, 1918, Cheffings reported for duty at Aumsville, Oregon, and was instructed to go with said extra gang to work upon the said defendant's tracks and roadbeds at a point called and known as Kipheart Bluffs;" that the defendant furnished two motortrucks for transporting the crew, and that these motortrucks were being used by the extra gang at the time of the fatal accident.

The complaint then avers:

"That on the morning of the said 26th day of March, 1918, and for a long time prior thereto, the said motorcar upon which the said Charles Cheffings was transported, as well as the other motorcar used in conveying and transporting the said extra gang to and from its work, was out of repair and in an unsafe condition, as follows: The spark plugs used in connection with the said gasoline engine upon said motorcars were dirty, filthy, covered with carbon, and otherwise out of order, and that the wiring upon said gasoline engine was faulty, old, broken, and out of repair and that the carburetors upon said motorcars were dirty and so out of order that the particular car upon which the said Charles Cheffings was being transported would run and then stop, being unsteady in its operation and uncertain as to whether it would go or not, and that the brakes upon the said motorcar upon which the said Charles Cheffings was being transported were out of repair and inadequate for stopping said motortruck, and in order to keep said motorcar upon which the said Charles Cheffings was being transported, going, at all, it was necessary for said employees to work with said engine and said carburetor and said wiring while the same was in operation and going upon defendant's tracks or the same would soon stop, and in order to work with said carburetor and gasoline engine it was necessary for the employees riding upon said motorcar to get upon their hands and knees so as to reach said gasoline engine as aforesaid. * * * While the said Charles Cheffings and the other employee of defendant company were upon their hands and knees working with the said engine and carburetor, * * * the first motorcar became out of order and suddenly stopped, and that the employees, being transported thereupon gave no warning or signal of its sudden stopping upon the tracks of the defendant company and allowed and permitted said motorcar to remain upon the tracks of said defendant company, and while the said Charles Cheffings was so operating the second motorcar as aforesaid, upon his hands and knees, the said second motorcar, operated as aforesaid, suddenly approached the first motorcar standing upon the tracks, and on account of the inadequacy of the brakes upon the said second motorcar the employees riding thereon were unable to stop said motorcar and the same ran into the first motorcar, throwing the said Charles Cheffings forward against the iron gas pipe upon said motorcar, as aforesaid, striking him in the neck and causing great injuries to the neck, head and body, * * * from which said injuries he died. * * *"

Plaintiff avers that the death of Cheffings resulted from the--

"carelessness and negligence of the defendant company, in the following particulars:

"First. The said defendant company was careless and negligent in not furnishing safe means of transportation for the said Charles Cheffings, and in furnishing to the said extra gang for the transportation thereof motorcars which were worn out, inadequate, out of order and repair and in the condition the said motorcars were in as above described.

"Second. In permitting said first motorcar to suddenly stop and remain upon the tracks of defendant company without placing some signal or method of warning the approaching second motorcar to the rear of the said first motorcar, and thereby warn said second motorcar that the first car was standing upon the track of the defendant company.

"Third. In furnishing a motorcar for the transportation of the said Charles Cheffings with a gas pipe in the position in which said gas pipe was placed upon said motorcar, as aforesaid."

The defendant denies all negligence and damages charged to it, and for a first further and separate affirmative answer alleges:

"That said accident was caused solely and alone by the negligence and carelessness of said Charles Cheffings in failing to keep any lookout for the gasoline motorcar which had preceded the car he was operating."

For a second further, separate, and affirmative answer and defense to plaintiff's amended complaint, the defendant alleges:

"That the said Charles Cheffings was, at the time of said accident, an old and experienced section laborer, and acting foreman, and familiar with the manner and method of operating gasoline motorcars; that he knew, understood, and appreciated that it was his duty to inspect and maintain both of said gasoline motorcars in good order and condition, and knew and appreciated the risk which he incurred in not inspecting and maintaining said cars in good condition and order, and well knew, understood, and appreciated that if he attempted to operate said gasoline motorcar without looking ahead for obstructions, and negligently and carelessly paid no attention to the track ahead of said moving car, that said procedure was dangerous and unsafe, and that he knew that he had instructed the other gasoline car to go ahead of the car which he was operating, and knew and understood that it was not at all unusual for said motorcars to stop and obstruct the track, and that he knew, understood, and appreciated the danger and likelihood of a collision, with resulting damage in case the first motorcar stopped on the track, and knew, understood, and appreciated the danger of operating said second gasoline motorcar at a high rate of speed without keeping a lookout ahead for obstructions upon the track, and the liability and danger of collision with the first gasoline motorcar in question was open, apparent, and obvious to the said Charles Cheffings, and occurred on a straight piece of track, where there was nothing obstructing his view, and he well knew, understood, and appreciated, or by the exercise of any care or caution should have known, understood, and appreciated, the danger of colliding with the preceding motorcar under such circumstances, and he knew, understood, and appreciated that it was his duty, as acting foreman, to inspect and maintain both of said gasoline motorcars in good condition and repair, and knew, understood, and appreciated that, if the car. which he was operating did collide with the preceding gasoline car which had stopped upon the tracks near Shelburn Station, there was great danger and likelihood of the occupants of said cars being injured; that by reason thereof Charles Cheffings assumed any and all risk and danger of injury which might happen or occur to him by reason of said accident; that the accident herein referred to is the same accident described in plaintiff's amended complaint."

Upon trial, a general verdict and a special verdict were found and returned by the jury, in language following:

"General Verdict.

"[Title.]

"We, the jury in the above-entitled civil action, find for the plaintiff in the sum of $8,000.00, and in the further sum of $______ for pain and suffering of Charles Cheffings after his injury and before his death. This verdict is unanimous."

"Special Verdict.

"[Title.]

"We, the jury in the above-entitled civil action, return the following special verdict, in answer to the following question:

"Question: If you find that the defendant was negligent in failing to use reasonable care to furnish Charles Cheffings with a reasonably safe means of transportation, as alleged in the complaint, do you further find that such defects were obvious and known to Charles Cheffings?

"Answer: We find affirmatively to both parts of the above question, also unanimously."

Thereupon the defendant filed a motion for judgment on special verdict, which was denied by the court, from which order the defendant appeals.

Defendant also asserts error of the court in denying its motion for a directed verdict, and in refusing certain instructions and giving certain others objected to by defendant.

Roscoe C. Nelson, of Portland (Smith & Shields, of Salem, on the brief), for appellant.

W. C. Winslow, of Salem, for respondent.

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

In the case of Atchison, etc., Ry. Co. v. Calhoun, ...

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