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

• Decision Date: 03 June 1930
• Citation: Donaghy v. Oregon-Washington R. & Nav. Co., 133 Or. 663, 288 P. 1003 (Or. 1930)
• Parties: DONAGHY v. OREGON-WASHINGTON R. & NAV. CO.
• Court: Oregon Supreme Court

288 P. 1003

133 Or. 663

DONAGHY v. OREGON-WASHINGTON R. & NAV. CO.

Supreme Court of Oregon

June 3, 1930

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Action by Gordon Donaghy against the Oregon-Washington Railroad &amp Navigation Company. Judgment for plaintiff, and defendant appeals.

Judgment set aside and rendered.

This is an action to recover damages for personal injuries received by the plaintiff, Gordon Donaghy, while in the employ of the defendant Oregon-Washington Railroad & Navigation Company. As the case is of considerable importance, the damages large and the legal points involved are difficult, we give a more extended statement of the pleadings than might otherwise appear necessary.

The complaint, after stating that defendant is a railway corporation organized and existing under the laws of Oregon continues substantially as follows:

"That heretofore and on December 7, 1927, this plaintiff was employed by the defendant as a machinist helper and was steadily employed and earning the sum of $4.20 per day that the said defendant company operates in the State of Oregon certain railroad shops for the repair and maintenance of railroad equipment used by said defendant company and in the operation of said shops has constructed what is termed 'a locomotive pit,' which is a trench dug about three feet six inches below the surface of the ground, the same being about four feet two inches in width, or being a few inches less in width than a standard gauge railroad track.

"That on the 7th day of December, 1927, the defendant had caused to be placed on said pit for repair work a locomotive crane, which crane had been on said pit for said repair work for a period of approximately thirty days and the same was undergoing heavy repairs, in that the boiler had been removed and various and sundry repairs were being done thereon and in particular the bushing carrying the main drive shaft in said locomotive crane had been removed, and at about the hour of 2:45 P. M. on said December 7, 1927 this plaintiff was assisting in the replacement of said bushing in said crane; that said bushing was of the weight of approximately two hundred seventy-five (275) pounds and in order to replace said bushing in said crane, it was necessary that the bushing be taken alone in the bottom of said pit, until it was directly underneath the portion of the crane, in which it was to be placed. That said work of replacement of said bushing was being done under the supervision of a machinist, and this plaintiff was at all times subject to the directions and orders of said machinist, and said machinist was plaintiff's foreman on said work. That said pit is inside of one of the buildings and upon this date and at this time it was cloudy and murky, and said building was insufficiently lighted and in particular in said pit it was impossible for this plaintiff to know what acts were being done by the said machinist; that said pit was also in close proximity to a great many locomotives, which were making a tremendous amount of noise, so it was impossible for this plaintiff to distinguish and determine what orders were being given by his foreman. That in order to replace said bushing, plaintiff was stationed on the outside of said pit, said bushing was placed in an upright position and the end thereof had been inserted in the casting, in which it fitted, and the bushing was being lifted into final place by means of the machinist in the pit putting one end of a plank about 2X10X16 inches in size under the end of said bushing, permitting said plank to rest across the rail on one side of said pit for leverage and said plaintiff would bear his weight upon the end of the plank, with which he was in contact, to lift said bushing, and when said bushing had been lifted as far as plaintiff could lift it by such manner and means, said machinist in said pit by means of a screw jack would hold said bushing in place until said plaintiff could readjust said board to obtain what is termed 'an additional bite' or greater leverage. That said jack in said pit was of insufficient length and it was necessary that the same be put on blocks, and these blocks were of small dimensions upon which said jack was resting, and there was also placed against said bushing to hold the same in place until plaintiff could secure new leverage, a wooden plank 3X3X22 inches. That while said plaintiff was adjusting said board for a new leverage, said 3X3X22 inch plank gave way and said blocking under said jack buckled, that is, it fell down, and said bushing thereupon fell striking the end of the board, which plaintiff was using, said bushing falling a distance of about thirty (30) inches, which blow of said bushing on said board caused the end of said board near the plaintiff to fly up suddenly, striking the plaintiff in the chin to his damage, as hereinafter set forth.

"That said defendant was reckless, careless and negligent in the following particulars, to-wit:

"1. In causing said work to be done with an insufficient number of workmen, in that only one workman was in the said pit to adjust said blocks under said jack and to keep said 3X3X22 inch board in place and at the same time to give orders and directions to the said plaintiff.

"2. In causing said plaintiff to work in a place of danger with an insufficient number of men, as in said subparagraph 1 above set forth and also wherein said place where plaintiff was working was surrounded by noise making machines, so that plaintiff could not hear the orders and instructions of his foreman.

"3. In causing plaintiff to work in a place poorly lighted, in that said plaintiff could not see or determine what was being done in said pit and those in said pit could not see what plaintiff was doing.

"4. In attempting to hold said bushing in place by means of a blocked up jack, when defendant knew, or could have known by use of reasonable diligence, that said blocks would buckle.

"5. In attempting to hold said bushing in place by means of an insecure plank.

"6. In failing to warn said plaintiff of the dangers attendant upon his work.

"7. In failing to use every device, care and precaution for the safety of said plaintiff.

"8. In failing to use a chain jack for the lifting of said bushing into place, which could have been done without impairing the efficiency of the work.

"9. In failing to maintain and keep across said locomotive pit, a pit-plank, upon which said jack or said block could have rested, and which pit-plank would have prevented the steel bushing from falling a sufficient distance to cause injury to the plaintiff, and which could have been done without impairing the efficiency of said work.

"That said work could have been carried on safely and without impairing the efficiency of said work by the use of (a) a longer jack, or (b) by blocks under said jack of heavy material, and (c) by having more workmen in said pit to assist in said operation."

Thereafter follows a statement of plaintiff's injuries, which both the complaint and the evidence shows were severe, and, in some respects, of a permanent nature.

The defendant answered, admitting its corporate character; that it operated in the state of Oregon certain railroad shops for the repair and maintenance of railroad equipment maintained by it; that plaintiff was employed in said shops as alleged; that while engaged on the alleged repairs, plaintiff bore down on the end of a plank used as a pry in lifting a heavy metal piece to be fitted into the crane, and that while so engaged the end of the plank was caused to fly up suddenly and strike plaintiff causing him some injury, and, with the exception of these admissions, denied every allegation of the complaint.

For a further answer to the complaint, the defendant alleged as follows:

"During all the times mentioned in the complaint, defendant owned and operated railroad lines in the state of Oregon, which railroad lines extended into the states of Washington and Idaho and were used by the defendant in carrying on intrastate and interstate commerce. The railroad shops mentioned in the complaint were during all said times maintained by the defendant for the purpose of housing and repairing rolling stock and equipment used by the defendant in carrying on such intrastate and interstate commerce. The locomotive crane mentioned in the complaint was one used by the defendant out on its said line of railroad for the purpose of aiding in the maintenance, repairing and clearing of its tracks, and was a necessary instrumentality in maintaining said lines of railroad for use in intrastate and interstate commerce. At the time of the accident mentioned in the complaint, said crane had been in said shops for repairs for a period of two days, and as soon as said repairs were completed it was again put in active use out on defendant's said railroad lines.

"Immediately prior to the happening of the accident mentioned in the complaint, plaintiff had been using a plank about eight feet long as a lever or pry for the purpose of lifting a steel sleeve weighing about two hundred pounds so that it could be fitted into said locomotive crane. To obtain leverage, said plank was pivoted upon a block about 6 inches square resting upon the floor of said shop. Another block was placed on the end of said plank opposite plaintiff upon the upper end of which block said steel sleeve rested. Immediately before the accident occurred plaintiff had pressed down the end of said plank upon which he was bearing his weight a sufficient distance so that it was necessary for him to take a new hold and to allow the said blocks referred to be re-arranged. Before said blocks had been properly readjusted plaintiff carelessly, recklessly and negligently...