Harper v. Oregon Electric Ry. Co.

• Citation: 111 Or. 71,224 P. 1096
• Parties: HARPER v. OREGON ELECTRIC RY. CO.
• Decision Date: 22 April 1924
• Court: Oregon Supreme Court

224 P. 1096

111 Or. 71

HARPER v. OREGON ELECTRIC RY. CO.

Supreme Court of Oregon

April 22, 1924

In Bank.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by J. H. Harper against the Oregon Electric Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action at law for personal injuries received by the plaintiff when struck by a car being operated by the employés of the defendant. The accident occurred on a spur track of the defendant extending from its track on Front street through blocks 25 and 26 to the foot of Shipping street, in the city of Salem. The spur is known as the Oregon Gravel Company spur. Adjoining the land and plant of the Oregon Gravel Company is a paving plant owned and operated by Marion county. The spur was built at the request of the Oregon Gravel Company, for its accommodation and the accommodation of the paving plant. The defendant was a night watchman at the paving plant. The county was using asphalt in its paving operations. The asphalt was delivered to the county by the defendant in tank cars. It was necessary to heat the asphalt in order to reduce it to liquid, and the heating was done by means of steam. Steam pipes are installed in the tanks and are connected by suitable hose or pipes with the boiler at the paving plant. The accident occurred about 2 o'clock in the morning of July 1, 1922. The plaintiff at that time had been employed by the county as a night watchman at the paving plant for 30 days. During this time practically every night, except Sunday night, the defendant company did switching from its main line to the spur track and from the spur track to its main line. On the night the accident occurred the employés of the defendant company were required to move from the northern end of the spur track four empty cars which they were to take to Portland. The duties of the night watchman were to keep the fires burning under the boiler in order to provide the steam necessary to melt the asphalt, which required about 12 hours. Owing to the limited space the wood used for fuel under the boiler was piled across the track and directly opposite the boiler. The night watchman was required to carry the wood from where it was piled across the track, not only for the purpose of keeping the fires going during the night, but also, to provide about half of the supply for the following day. He was engaged in throwing wood across the track when he received the injury complained of.

A few minutes before he received the injury the electric engine used by the defendant company in moving its freight cars moved from the Front street track along the spur within 10 feet of the asphalt tank car, which was then connected with the steam pipes of the boiler. One of the trainmen informed the plaintiff that the tank car would have to be moved in order to get the four empty cars which were north of the tank car. The plaintiff then secured a wrench and one or two of the trainmen assisted him in disconnecting the connection between the pipe from the boiler and the pipes in the asphalt tank car. The engine then connected with the tank car and took it and the other cars attached thereto, including the four empty cars wanted, and returned to the Front street line, where the four empty cars were placed upon the latter track; and the engine then returned with the tank car and the other cars attached thereto, excepting the four empty cars down the spur, when the accident occurred. The plaintiff charged negligence to the defendant company, alleging that the defendant failed to give warnings, either by a proper light on the front end of the car as it moved north on the spur track, or by sounding a whistle or ringing a bell. The errors relied upon will be stated in the opinion.

W. C Winslow, of Salem, for appellant.

John H McNary, of Salem, and Carey & Kerr, of Portland, for respondent.

COSHOW J. (after stating the facts as above).

The plaintiff complains of the court's ruling denying his motion to strike out certain parts of the affirmative answer of the defendant. We have carefully examined the motion and the parts moved against so far as we can by the indefinite description of those parts in the record. It may be helpful to remind the litigants that in actions at law the pleadings in their original form are not brought to this court. The...