Hval v. Southern Pac. Transp. Co.

• Decision Date: 02 April 1979
• Docket Number: No. A,A
• Citation: 39 Or.App. 479,592 P.2d 1046
• Parties: Edroy R. HVAL, Respondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a corporation, Appellant. 7702 02141; CA 10689.
• Court: Oregon Court of Appeals

Page 1046

592 P.2d 1046

39 Or.App. 479

Edroy R. HVAL, Respondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a corporation, Appellant.

No. A 7702 02141; CA 10689.

Court of Appeals of Oregon.

Argued and Submitted Dec. 20, 1978.

Decided April 2, 1979.

James H. Clarke, Portland, argued the cause for appellant. With him on the brief were Robert E. Maloney, Jr., and Dezendorf, Spears, Lubersky & Campbell, Portland.

Jeffrey M. Batchelor, Portland, argued the cause for respondent. With him on the brief were Zig I. Zakovics and Reiter, Bricker, Zakovics & Querin, P. C., Portland.

Before SCHWAB, C. J., RICHARDSON, J., and TONGUE, J. Pro Tem.

RICHARDSON, Judge.

Plaintiff sought to recover under the Federal Employers' Liability Act (FELA) for injuries he sustained while working as a car inspector, or carman, on one of defendant's trains. Plaintiff was injured when a car released by one of defendant's switchmen from the main track in defendant's trainyard passed onto a side track, Track No. 3, and collided with a string of cars that plaintiff was inspecting. The accident occurred because the switch controlling Track No. 3 was open, or lined toward Track No. 3, rather than closed.

The task of properly lining up switches is assigned to switchmen. Company rules do not require a carman to check or properly line the switches. Nevertheless, it was a customary practice for carmen, including plaintiff, to do so for their own safety before they began to inspect, test, and repair the cars.

At the trial before a jury, plaintiff testified that he checked to see that the switch for Track No. 3 was closed before walking a short distance up the track to place the blue flag and light which signals that work is being performed on the track. Although there was no dispute at trial concerning whether plaintiff "blue-flagged" Track No. 3 as required by defendant's Operating Rule 26, ¹ the assistant trainmaster testified that after the accident, plaintiff stated that he had not checked or lined the switch because that was not part of his job. During trial, the court denied defendant's switchman the opportunity to testify that he assumed plaintiff would check and line the switch on the night in question. The court also denied defendant's motion for an order excluding evidence of the company's investigation of the accident and the disciplinary action which followed. Witnesses testified that two switchmen received disciplinary sanctions for violating Rule 26, while plaintiff received none. Upon plaintiff's motion at the conclusion of the presentation of evidence, the court entered a directed verdict for plaintiff, withdrew the issue of plaintiff's contributory negligence from the jury and limited the jury's deliberations to the extent of damages suffered by plaintiff. The jury awarded plaintiff $65,000 and defendant appeals.

Defendant first contends that the trial court erred in refusing to submit the question of plaintiff's contributory negligence to the jury. Under 45 U.S.C. § 53 (1970), contributory negligence does not bar an injured worker's recovery but may diminish the award in proportion to the fault attributable to the plaintiff. See Tiller v. Atlantic Coast Line R. Co.,318 U.S. 54, 65, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967 (1943); Page v. St. Louis Southwestern Railway Co., 349 F.2d 820, 824 (5th Cir. 1965), Cited with approval in Caplinger v. N. P. Terminal of Oregon, 244 Or. 289, 292-93, 418 P.2d 34 (1966). An employe is contributorily negligent whenever he fails to act with ordinary prudence to protect his own safety. Schlemmer v. Buffalo, etc., Ry. Co., 220 U.S. 590, 596, 31 S.Ct. 561, 55 L.Ed. 596 (1911); Murray v. New York, New Haven & Hartford R. Co., 255 F.2d 42, 44 (2nd Cir. 1958); White v. St. Louis-San Francisco Ry. Co., 539 S.W.2d 565, 570 (Mo.App.1976). We do not agree that plaintiff's compliance with the railroad's operating rules establishes as a matter of law that he was free from negligence. Atchison, T. & S. F. Ry. Co. v. Ballard, 108 F.2d 768, 771 (5th Cir.), Cert. den., 310 U.S. 646, 60 S.Ct. 1096, 84 L.Ed. 1413 (1940); Frabutt v. New York, C. & St. L. R. Co., 88 F.Supp. 821, 827 (W.D.Pa.1950). Company regulations formulated to promote employe safety are considered competent evidence of the employer's belief as to the proper standard of care to be exercised by workers. 2 J. Wigmore, Evidence 132, § 282 (3rd ed. 1940). It was proper for the jury to consider whether plaintiff failed to observe the company's safety rules in deciding whether he was negligent. Atchison, T. & S. F. Ry. Co. v. Ballard, supra, 108 F.2d at 771; Frabutt v. New York, C. & St. L. R. Co., supra, 88 F.Supp. at 827; Powell v. Pacific Electric Railway Co., 35 Cal.2d 40, 46-47, 216 P.2d 448 (1950).

In this case, several witnesses, including plaintiff, testified that it was a common practice for carmen to check and line the switches before they began working. Such evidence, although not dispositive of the issue, Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 47 L.Ed. 905 (1903), was relevant to establish plaintiff's duty of due care toward himself. Robbins v. Steve Wilson Co., 255 Or. 4, 7, 463 P.2d 585 (1970); W. Prosser, Torts 166-67, § 33 (4th ed. 1971); 2 J. Wigmore, Supra, 488, § 461. Based on the testimony by the assistant trainmaster, it would have been proper for the jury to find that plaintiff had not exercised due care because he failed to check the switch on Track No. 3 on the evening he was injured. "And where, as here, the case turns on controverted facts and the credibility of witnesses, the case is peculiarly one for the jury." Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600, 91 L.Ed. 572 (1947). Since the jury could have found the plaintiff was negligent in some degree in failing to check the switch pursuant to the ordinary practice of carmen, it was error to take the issue of contributory negligence from the jury. The other questions raised on appeal may reoccur upon retrial and therefore need to be decided.

Defendant also cites as error the trial court's refusal to allow a switchman to testify that he assumed plaintiff, like other carmen, would himself check and line the switch on the track he was working on if it needed to be lined. In light of the customary practice of carmen to perform switching operations themselves, this was not an altogether unwarranted assumption. It bears on the reasonableness of the switchman's conduct under the circumstances, See Page v. St. Louis Southwestern Railway Co., supra, at 824, and, despite the fact that reliance upon that assumption constituted a violation of the railroad's operating rules, it was admissible for the purpose of assessing the respective fault of the two parties. See 2 J. Wigmore, Supra, § 282; Frabutt v. New York, C. & St. L. Co., supra, 88 F.Supp. at 827; Powell v. Pacific Electric Railway Co., supra, 35 Cal.2d at 46-47, 216 P.2d 448; Edmonds v. Southern Pacific Co., 142 Cal.App.2d 519, 522-23, 299 P.2d 8 (1956).

Defendant finally argues that the trial court erred in denying defendant's pretrial motion to exclude evidence of the railroad's investigations of the accident and the disciplinary action which followed.

Plaintiff argues that defendant's decision to discipline the switchmen and to not discipline plaintiff was inconsistent with its position at trial that the accident was caused by the combined...