Davis v. Payne

• Decision Date: 12 June 1923
• Citation: 216 P. 195,108 Or. 72
• Parties: DAVIS v. PAYNE, AGENT (SOUTHERN PAC. R. R..
• Court: Oregon Supreme Court

216 P. 195

108 Or. 72

DAVIS v. PAYNE, AGENT (SOUTHERN PAC. R. R..

Supreme Court of Oregon, En Banc.

June 12, 1923

Appeal from Circuit Court, Multnomah County; Geo W. Stapleton Judge.

Action by Walter Davis against John Barton Payne, Agent under Transportation Act 1920, § 206 (41 Stat. 456) operating the Southern Pacific Railroad. Judgment for plaintiff, and defendant appeals. Reversed and judgment for defendant ordered.

Bean J., dissenting. McBride, C.J., dissenting as to reversal. Brown and Harris, JJ., dissenting as to judgment on reversal.

Roscoe C. Nelson, of Portland (Ben C. Day, of Portland, on the brief), for appellant.

Chester A. Sheppard and W. M. Davis, both of Portland (Chas. E. Snook and Davis & Farrell, of Portland, on the brief) for respondent.

RAND J.

The plaintiff brought this action against the Director General of Railroads to recover damages for personal injuries sustained by him on May 31, 1918, while engaged as a locomotive engineer in operating a freight engine over the road of the Southern Pacific Company between the stations of Oswego and Cook.

At the time of the injury the plaintiff was an experienced locomotive engineer, and was in charge of the engine attached to local freight train No. 231, running from the Brooklyn yards at Portland, Or., to Corvallis, Or. He was 38 years of age at the time, and had been employed by the Southern Pacific Company for about 20 years. He was familiar with the line of track over which his engine was passing, with all of its branch connections, as well as with the operation of its trains, with the rules of the carrier, and his duty to observe train orders. His run on that day was over the main line from Portland to Corvallis, via Oswego and Cook. Oswego is 8 miles from the yards at Brooklyn, and Cook is four miles beyond Oswego. At Cook a branch line from Beaverton, 7 miles in length, connects with the main line. Upon leaving the Brooklyn yards, from one to two hours before the injury was sustained, the plaintiff received written train order No 226, reading as follows:

"No. 234, engine 2911, has right over No. 231, Beaverton to Oswego."

In order for No. 234 to reach Oswego from Beaverton, as plaintiff well knew, it was necessary for that train to pass over the branch line to Cook, and from Cook over the main line to Oswego. Between Oswego and Cook the road runs over a single track. Upon reaching Oswego, the plaintiff, without any knowledge or information as to the whereabouts of train No. 234, and without receiving any contrary or additional order, proceeded to move his train from Oswego to Cook over the same track that he knew train No. 234 would be compelled to take. While en route from Oswego to Cook, plaintiff's train No. 231 collided with engine 2911 of train No. 234, coming from Cook to Oswego. That train consisted of about 30 loaded cars, 5 empty cars, and a caboose. This head-on collision caused the wreck of both trains, and the injuries complained of by the plaintiff, instantly killed the engineer of train No. 234, and injured other employees of that train crew.

The negligent acts of the defendant, upon which plaintiff relies, are set forth in his complaint as follows:

"That on May 31, 1918, the Director General of Railroads, through his officers and agents, directed the plaintiff herein to proceed with engine No. 2512 from Portland, Or., to Oswego, Or., by way of Cook, to Corvallis Or., and to haul with the said engine over said line two loaded cars, one empty car and a caboose, which cars were cars used in carrying freight from points outside the state of Oregon, from other states, to points within the state of Oregon and within the state of California. That said cars at said time were hauling freight from points in states outside of the state of Oregon to points within said state of Oregon; that said train was what was known at said time as westbound local freight No. 231. That plaintiff's said train was directed to leave Brooklyn yards, Portland, Or., at 9:45 a. m. on May 31, 1918, and did in conformity with said directions leave said yards at said time. That before leaving, the Director General of Railroads, through his agents, servants, and employees, caused to be delivered to Engineman Davis, plaintiff herein, and to Conductor Frederickson, conductor of said train, order No. 226, which order read as follows: 'No. 234, engine 2911, has right of way over 231, Beaverton to Oswego.' That before leaving the railroad yards at Brooklyn, Portland, Or., and at the time order No. 226 was given to plaintiff herein, plaintiff showed said order to his fireman, who read the same. That Conductor Frederickson was at the said time given a copy of said order. That under said conditions plaintiff proceeded with said train over the lines of the Southern Pacific Company to Oswego, Or., where plaintiff, in company with the conductor of said train, checked the register and returned to his place in the engine cab. That at Oswego at said time another train, known as an electric train, was being run by the Director General of Railroads over the same line on which plaintiff was operating his said train. That by reason of the fact that said electric train left Oswego before train No. 231, under the rules and regulations then in force, it was necessary for plaintiff to remain at Oswego for the period of 10 minutes. That at the expiration of the said 10 minutes Conductor Frederickson negligently and carelessly gave the order for plaintiff to proceed with said train on the way toward Corvallis over the line of railroad as hereinbefore described. That in compliance with the said order and direction plaintiff herein started on the way toward Corvallis over the said line of railroad. That said train was then and there equipped with an air-brake system, consisting of compressed air pumps, chambers, cylinders, reservoirs, pipe lines and valves, rods, hangers, and brake shoes, which system extended from the engine at the front end of said train to the caboose at the rear end thereof, and was then and there in working condition and operative, and so arranged and equipped that by the simple and easy movement by a man's hand of a valve (commonly called the conductor's valve) in said caboose, the compressed air contained in said brake system would be discharged into the atmosphere and the brake shoes in said system would thereby be automatically applied to, and held against, the wheels of the engine cars, and caboose in said train, and thereby instantly stop said train. That either Conductor Frederickson or any one of the three brakemen, who were then and there in said caboose, could at any moment have instantly stopped said train by moving said valve, and thereby automatically applying said brake shoe to said wheels, and they and each of them should have instantly stopped said train when it then and there started to leave Oswego, and, if they had then and there so stopped said train, the collision hereinafter referred to would not have occurred. That Conductor Frederickson and each of said three brakemen negligently and carelessly omitted then and there to move said valve and thereby stop said train. That as plaintiff, in operating said train, approached a cut about 1,200 feet long, the walls of said cut being 10 to 30 feet high, plaintiff herein, without any warning whatever from his fireman, or the conductor, or any of the brakemen, or any one else, came upon freight train No. 234, approaching at a rate of about 20 miles per hour, said train consisting of about 30 loaded cars, 5 empty cars, and a caboose, hauled by locomotive No. 2911. That the said track at said point was a single-line track, and the trains were so nearly upon each other that it was impossible for plaintiff to do anything to avert a collision, and the said trains Nos. 231 and 234 came together in a head-on collision with great force at a point about 2.2 miles east of Cook, which is the junction point between the Newberg and Tigard branches of said railroad. That in said collision the plaintiff herein was severely and permanently injured, as more particularly hereinafter set forth. That the force of said collision broke the left cylinder and the frame of locomotive 2512 back to the front drivers, the cab was demolished, the tank frame was broken in two, and the trucks bunched near the rear end of the locomotive. The first car in train 231 came to rest upon the top of the tender and was practically destroyed, and locomotive 2911 was greatly damaged and jammed.

"That the carrier, the Director General of Railroads, his agents, servants, and employees, on the 31st day of May, 1918, were reckless, negligent, and careless in giving to the plaintiff at Brooklyn, Or., order 226. That said Director General of Railroads, his servants, agents, and employees were further negligent, reckless, and careless in not making said order read, 'Cook to Oswego,' instead of 'Beaverton to Oswego,' and in not giving said order to the plaintiff at Oswego, instead of at Brooklyn. That said order did not comply with the rules of the carrier, in that the said order named towns off the line over which plaintiff's train ran, and in that said order did not apprise plaintiff of the position of said train No. 234. That said Director General of Railroads, his agents, servants, and employees were further reckless, negligent, and careless in not giving a meet order requiring plaintiff's train No. 231 to be held at Oswego until train No. 234 arrived there. That under said circumstances it was customary to give a meet order where trains were being operated over a single line of track. That it is, and was at said time, customary under such circumstances to name only towns on the line over which plaintiff's train ran, and not to name any towns or

...