Gibson v. Oregon Short Line & U.N. Ry. Co.
| Decision Date | 20 February 1893 |
| Citation | 32 P. 295,23 Or. 493 |
| Court | Oregon Supreme Court |
| Parties | GIBSON v. OREGON SHORT LINE & U.N. RY. CO. |
Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.
Action by S.B. Gibson against the Oregon Short Line & Utah Northern Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.
W.W. Cotton, Zera Snow, and Wallace McCamant, for appellant.
Alfred S. Bennett, for respondent.
This is an action to recover damages for negligence of the defendant causing an injury to the plaintiff while at work in the employment of the defendant. The negligence complained of is predicated upon two grounds: First, that the defendant neglected to provide suitable rules or regulations for the protection of its track walkers, and especially for the protection of the plaintiff; and, second, that the defendant failed to instruct the plaintiff of the dangers known to it but unknown to the plaintiff, incident to the employment in which he was about to engage. The principal contention for the appellant is that the trial court erred in denying the defendant's motion for a nonsuit, and in refusing to instruct the jury to find for the defendant. Briefly and substantially, the evidence shows that the rules and regulations adopted by the defendant required the engineers of its trains to whistle at whistling posts in passing over the road; that the plaintiff was employed by a section foreman of the defendant as a track walker on a section of the defendant's road lying between the stations of Viento and Hood River; that previous to such employment the plaintiff was a rancher, residing near Hood River, and in the vicinity of the defendant's road, and had rode over this section of it some two or three times; that there were several high bridges and trestles of considerable length, and some of them curved, on the section over which the plaintiff had engaged to walk as a track walker; and that at frequent intervals the bent caps projected beyond the ties, to which a track walker could repair as a place of safety or means of escape from a passing or unexpected train, when caught on any one of such bridges or trestles. The plaintiff testifies that before starting out to walk the track he told the section foreman that he was inexperienced, and wished to be fully instructed as to his duties, but that the section foreman failed to give him any instructions about getting on the caps when caught on the bridges or trestles by an approaching train; that while he was passing over the road, and when on one of these bridges or trestles, he saw an approaching train, some half mile distant, and, thinking he saw the end of the bridge but a short distance ahead, he started to run towards it to avoid the train, and that, while so running, he stumped his foot against a spike in the bridge, and fell down, and as the train in the mean time was getting nearer to him he gathered himself up, and hastily got down on a cap, where he remained until the train passed; that his leg was somewhat bruised, but that no bones were broken, or other serious injury suffered by the fall; that after the train passed he got up and retraced his footsteps to Viento, and continued in the service of the defendant two or three days thereafter when he quit its employment. As to the insufficiency of the rules to protect track walkers from the dangers of an approaching train while in the discharge of their duties, the contention is that they were defective in not providing that the engines should whistle at frequent intervals before approaching bridges or trestles on which trackmen might be walking. But the facts as disclosed by this record do not sustain this contention. The evidence shows that the injury was not caused by a defective system of rules, or the failure to observe them. It was not occasioned, either because the engine did not whistle, as required by the rules, or because the rules were defective in not requiring the engine to whistle at more frequent intervals, for the plaintiff saw the approaching train a half a mile ahead, and had ample time to retreat or step from the bridge to the caps, and there remain in safety until the train passed.
As the argument indicated, it is the other ground of complaint upon which the plaintiff chiefly relies to sustain his action. This is that the foreman of the defendant failed to instruct the plaintiff, who was inexperienced, how to avoid the danger incident to his work in the event he was caught on a bridge or trestle by an approaching train. The solution of this question...
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