Christie v. Great Northern Ry. Co.

• Court: Oregon Supreme Court
• Writing for the Court: BEAN, Justice.
• Citation: Christie v. Great Northern Ry. Co., 20 P.2d 377, 142 Or. 321 (Or. 1933)
• Decision Date: 28 March 1933
• Parties: CHRISTIE v. GREAT NORTHERN RY. CO.

20 P.2d 377

142 Or. 321

CHRISTIE v. GREAT NORTHERN RY. CO.

Supreme Court of Oregon

March 28, 1933

Department No. 2.

Appeal from Circuit Court, Multnomah County; W. A. Ekwall, Judge.

Action by J. A. Christie against the Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

This is an appeal from a judgment in favor of plaintiff, based upon the verdict of the jury for $1,000. Plaintiff was a brakeman on one of defendant's trains and was injured while unloading a pair of engine wheels from a box car. The case arises under the Federal Employers' Liability Act (45 USCA §§ 51-59).

On June 12, 1929, at Chinook, Mont., the plaintiff was acting as a brakeman on a local freight train of defendant. He was 33 years of age and an experienced, strong man. At the time he was injured he was assisting the conductor in unloading a pair of engine wheels from a box car. The wheels were mounted rigidly on an axle and weighed from 400 to 500 pounds. Plaintiff and the conductor worked inside the car and two others, a second brakeman and the station warehouseman, were on the platform receiving the freight as it was unloaded.

Fletcher Rockwood, of Portland (Carey, Hart, Spencer & McCulloch, of Portland, on the brief), for appellant.

Paul R Harris, of Portland (Davis & Harris, of Portland, on the brief), for respondent.

BEAN Justice.

The testimony tended to show that the railroad track at Chinook extends approximately east and west. The box car was standing still at the station platform which was on the south side of the track. When the plaintiff and conductor began to unload the wheels, they were against the north wall of the car in the west end, with the axle parallel to the length of the car. The two men inside the car first rolled the wheels away from the north wall; the conductor then held the east end with the plaintiff at the west end; plaintiff swung the west end in a 90~ arc placing the axle at right angles to the length of the car. The wheels were then rolled east to the center of the car opposite the south door and the plaintiff brakeman went to what was then the north end to lift what had been the conductor's end at first, and the conductor undertook to hold what was then the south end preparatory to swinging the north end to place the axle parallel with the length of the car so that the wheels would be in a position to roll straight out of the south door. In this second turning plaintiff testified he was injured. He testified, as a witness, in regard to the injury as follows:

"Q. Would you mind explaining to the jury just how that came about? A. There was steel wheels on an axle; they were either small car wheels or pony engine trucks, I don't know which. They were sitting in the car, in the west end on the north side, with both wheels against the wall; so to unload them, we had to roll them out a little ways, then swing the west wheel around, roll them east to the door. At the door they had to be lifted a little in the air, just a few inches, up on some plates, one wheel, and then the north wheel had to be swung east so we could roll them south out of the door. We rolled them out from the wall. I lifted the west wheel around until it was then the south wheel. We rolled them forward to the door, even with the door. I lifted the south wheel up on these plates and the conductor then at the north wheel-the conductor did not lift his wheel around, as I had lifted my wheel around. I don't know whether he was not able to or not, but he ordered me to lift it around.

"Q. That is, his end? A. His end. That he would hold my end while I lifted his end around. I went around to lift his end around, and while we was lifting, whether he slipped or whether he didn't watch what he was doing and let the wheel slip a little ways, a few inches, while I was lifting hard, then taking a step on my left foot, it throwed me off balance and against the wall, hurt my back and wrenched my hip around.

"Q. What caused you to take this misstep? A. Well, as I was lifting on this journal which extends out from the wheel on each end several inches, I was holding this journal to lift the wheel off the ground and swing it around and had swung it quite a ways around when he let his wheel move forward just a few inches; enough that with the intense weight of lifting that just enough, and when I was on one foot, it threw me off balance. ***

"A. I don't know whether he let entirely go or whether it just slipped on him."

Plaintiff further stated in answer to a question by a juror, while the witness was being cross-examined, in regard to his injury: "It was sustained by the-letting the wheel go and wrenching my back and hip as it threw me." He further testified, in substance, that when the wheels slipped it twisted his back; it twisted him and wrenched his back and threw him sideways against the side of the car and hurt his side and hip. The witness further stated: "I think both caused it, the twist and the injury, by hitting the side of the car, too."

The conductor Hillsabeck, as a witness for defendant, testified that he did not see the defendant lose his balance; that he did not let go of his end; that his end did not slip or slide; and that after the second turning was completed the wheels were rolled through the south door of the car and were dropped to the gravel platform. At the time two other employees, rear brakeman McCrorie and the station helper, were on the platform to move freight as it was unloaded from the car.

The defendant assigns that the trial court erred in denying defendant's motion for a directed verdict in its favor. The grounds upon which defendant relies are: First, that there was no evidence of negligence on the part of defendant; second, that any injury that plaintiff received arose out of the risk which he assumed as a matter of law. The case arises under the Federal Employers' Liability Act (45 USCA §§ 51-59) and the rulings of the federal court in applying the provisions of the act are controlling.

The complaint charges the defendant with negligence in three particulars: (1) "That while plaintiff was so engaged in said operation, and in particular in shifting said wheels and axles, the said conductor carelessly and negligently let go of his hold upon the opposite end of said axle, ***"; (2) that defendant negligently employed an incompetent fellow servant; (3) that defendant failed to direct a sufficient number of men to assist in shifting the wheels. The second allegation of negligence was withdrawn at the time of the trial and need not be further considered.

Plaintiff contends that under the testimony in the case the question, as to whether the defendant or supervising officer, the conductor, was negligent in ordering the work in question to be done by two men instead of by more than two, was one of fact for the jury; that plaintiff in the instant case did not assume the risk as a matter of law; and that the question of assumption of risk was properly submitted to the jury.

Defendant argues that there is no testimony that the conductor "let go" of the wheel, and the plaintiff testified, in effect, that he did not know whether he let go entirely or whether he loosened his grip so that it slipped.

As we view the testimony, this is merely a manner of expression. We fail to see the difference, whether the action of the conductor was described as "letting go" or whether he let go partially so that the wheels slipped.

The two allegations of negligence are so intimately connected that we think they can be considered together. It will be noticed from the testimony, and the jury would be warranted in concluding, that the plaintiff at the time he was injured was moving one end of a heavy pair of wheels rigidly attached to an axle. He was at work with the conductor of the train upon which he was a brakeman. The conductor was his superior and vice principal.

It is urged by defendant that if the plaintiff believed it was necessary to have more assistance he should have called to the two men who were outside of the car. Evidently the jury had reason to believe that plaintiff was at work under the direction of his superior, whom it was his duty to obey, and that it was not the duty of a brakeman to direct the conductor how the work should be done. We know of no rule, of law, or of a railroad, or any practice upon a railroad requiring a brakeman to direct the conductor how he should proceed to unload a car. The jury might reasonably believe that if the additional help was required, it was the duty of the conductor or vice principal to call to the other men, which could easily have been done, and that the conductor neglected to do that. It was pictured to the jury that the plaintiff was called upon to move a pair of wheels, weighing nearly 500 pounds, with the help of the conductor. The description of the manner in which the work was done was not that the conductor was able to keep up his end of the work. When the wheels were first moved, the plaintiff lifted the end around in an arc, the conductor merely holding the other end stationary. After the wheels were moved near the door of the car and it was necessary to swing one end of the wheels around parallel with the length of the car, the conductor did not stay at his end and lift it, but changed to the other end and plaintiff went to the conductor's end to lift the wheel around. It was different from the first moving of the pair of wheels for this reason: They had to be lifted up a few inches onto a plate. The jury evidently thought that the difficulty in moving the article did not so much depend upon its weight as upon the shape, and that it was awkward or bungling. They no doubt knew what it was to handle a pair of wheels with no tongue...