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

• Decision Date: 08 January 1924
• Citation: 221 P. 1062,110 Or. 665
• Parties: EBELL v. OREGON-WASHINGTON R. & NAV. CO.
• Court: Oregon Supreme Court

221 P. 1062

110 Or. 665

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

Supreme Court of Oregon, En Banc.

January 8, 1924

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by Zula Ebell, as administratrix of the estate of Gerald Ebell, deceased, against Oregon-Washington Railroad &amp Navigation Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This action for damages under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) was brought by plaintiff as administratrix of the estate of Gerald Ebell, her deceased husband, a brakeman, employed by the defendant company, who was run over by a locomotive, and sustained injuries which resulted, a few hours later, in his death. The accident occurred in the daytime on November 20, 1921, near Durkee, a station on defendant's line between Baker and Huntington Or. Plaintiff's intestate was an experienced brakeman and, at the time of the accident, was employed on a freight train designated as extra 2107 west, Upon the arrival of that train at the east switch at Durkee, in order to couple two helper engines in front of the caboose, the caboose was cut off and left east of the switch, and the remainder of the train was pulled up and stopped on the main line a short distance west of the switch. After cutting off the caboose from the train, the two helpers, coupled together, were moved from the passing track onto the main line through the east switch, where they were coupled onto the caboose by another brakeman. While being so coupled, plaintiff's intestate threw the switch from the passing track to the main line. He then proceeded to walk by the side of the track to the rear car, to which he was to couple the helpers. While he was walking alongside of the track, and the helpers were being moved towards the train, he was seen by the engineer of the front helper to stop and talk with members of another train crew, at which point the helpers passed him. So far as the testimony discloses, he was not again seen by any member of his own train crew or by the enginemen on the helpers until he was removed from under the cab of the front helper. He was run over by the front helper while in the center of the track and about 80 feet from the rear end of the train. No one saw him go upon the track, and there is no explanation of how he came to be there. The cars and helpers were equipped with automatic couplers, and in order to make the coupling it was not necessary for him to go upon the track or between the front helper and the rear car of the train. The evidence shows that it was 39 feet from the front of the pilot to the cab of the front helper under which plaintiff's intestate was found when the helpers were stopped. The testimony discloses that for a distance of 10 feet back from the front of the pilot the clearance between the ties and the attachments of the engine was from 10 to 12 inches, while from that point to the cab the clearance is less. Another freight train, extra 2136 east, had pulled into Durkee, and at the time of the accident was standing on the passing track by the side of extra 2107. The passing track was on the fireman's side of the helpers, and was an adjoining parallel track close to the main line.

At the time of the accident William C. Neff, who was called as a witness by the plaintiff, was a brakeman on extra 2136 east. He testified that while engaged in inspecting his own train he was standing at a point between the two trains about 2 1/2 car lengths, or 100 feet, in front of the rear end of the rear car of extra 2107 west, which point was on the fireman's side of the helpers, and about 180 feet from the place where plaintiff's intestate was run over. He was the only witness who saw the accident or ever knew that plaintiff's intestate was in danger. He testified that he saw plaintiff's intestate between the rails near the center of the track; that he was facing to the southwest which would be at about right angles to the track, and was leaning over and staggering, about 4 feet in front of the helpers which were moving about 4 or 5 miles per hour; that he saw him fall in the center of the track with his feet towards the engine and the front part of the engine pass over him, and that, upon seeing plaintiff's intestate in that situation he immediately hollowed, saying, "Hey," or something to that effect, and gave what, in railroad parlance, is known as a "violent stop" or "washout" signal, which is the ordinary stop signal given violently, and calls for the immediate stoppage of any train or engine movement. He then started to run between the trains to the place where plaintiff's intestate was repeating the signal as he ran. Neff testified that immediately following his giving of the signal the helpers were stopped "right now," but all of the testimony, including his own, shows that the engine, for a distance of about 39 feet, passed over plaintiff's intestate, and this establishes the fact that the engine moved at least approximately 43 feet after Neff discovered plaintiff's intestate upon the track.

Harry Last, a brakeman on plaintiff's intestate's train, was called as a witness by plaintiff. He testified that after coupling the caboose to the helpers he rode on the front helper and got off on the engineer's side, and that as he stepped off the engine he observed Neff giving the violent stop signal, and that, as the front helper had then passed him, he immediately turned to the engineer of the rear helper and repeated the signal.

The only other witness who testified concerning the accident was C. L. Larcom, the engineer on the front helper. He was a witness for the defendant, and testified that he saw plaintiff's intestate stop alongside of the track and talk to the members of the other train crew; that he did not see him again until he was found under the cab; that he saw Neff, who, at the time, was on the engineer's side of the helpers, and about opposite the cylinders of the front helper, give an emergency signal, and that, upon receiving it, he immediately shut off the steam and applied the emergency brake, and stopped the helpers within a distance of about 15 feet, and when stopped his helper was about 40 feet away from the rear end of the car to which it was to be coupled. The testimony shows that the tracks at that point have an ascending grade of 1 per cent. to the west. The helpers were at the time moving west. There is no other testimony in the record in explanation of the accident. Nor is there any testimony in the record to explain what, if anything, caused the plaintiff to stagger or fall in front of the helpers, or what, if anything, prevented him from stepping off the track before the helpers, going but a little faster than he could walk, reached him.

Plaintiff offered expert testimony to the effect that the two helpers and caboose could have been stopped at a distance of from 4 to 8 feet after the emergency brake was applied. This was contradicted by the testimony of other experts called by the defendant, who testified that, if going at the rate of 4 or 5 miles per hour, they could not have been stopped in less than from 18 to 35 feet, depending upon whether going at 4 or 5 miles per hour.

The rules of the company provide that signals must be given where they can be plainly seen, and when practicable all signals by hand must be given on the engineer's side, but signals received from the other side must be respected; that employees must not ride on the pilot of an engine, nor get on the front or rear of an engine as it approaches them, nor go between moving cars to uncouple, close, or arrange knuckles of couplers, and, while switching, the engineer and fireman must both remain on the engine and give close attention to signals. The above is all of the testimony offered by either side in explanation of the accident.

The cause was tried to a jury and resulted in a judgment in favor of the plaintiff, from which the defendant has appealed.

W. A. Robbins, of Portland, and T. H. Crawford, of La Grande (A. C. Spencer, of Portland, and Crawford & Eakin, of La Grande, on the brief), for appellant.

F. S. Ivanhoe and Eugene Ashwill, both of La Grande (Green & Hess, of La Grande, on the brief), for respondent.

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

The plaintiff alleges and the defendant admits that at the time of the accident plaintiff's intestate and defendant were both engaged in interstate commerce. The case, therefore, is governed exclusively by the provisions of the federal Employers' Liability Act and the "applicable principles of common law as interpreted and applied in federal courts." So. Ry. Co. v. Gray, 241 U.S. 333, 36 S.Ct. 558, 60 L.Ed. 1030.

The whole evidence of the plaintiff discloses that the injury sustained by plaintiff's intestate was not caused by any violation by the defendant company of any federal statute enacted for the safety of its employees, nor by reason of any defect or insufficiency in its property or equipment. And there is no evidence in the record in explanation of how plaintiff's intestate, an experienced brakeman, whose duties did not require him to cross the track or to go upon it at all, came to be on the track and immediately in front of the helpers, 80 feet away from the point where he himself was to make the coupling, nor why, being there, he did not step off the track in time to avoid injury, nor what, if anything, caused him to stagger and fall. From the time he was seen by Larcom talking to members of another train crew, to the time he was observed, by Neff, in front of the two helpers, his whereabouts are wholly unaccounted for.

There is no contention that plaintiff's intestate, while in the center of the track and only 4 feet away from the front...