Kinkead v. Oregon Short Line & U. N. Ry. Co.

• Decision Date: 22 February 1892
• Parties: KINKEAD v. OREGON S.L. & U.N.R. CO.
• Court: Oregon Supreme Court

29 P. 3

22 Or. 35

KINKEAD v. OREGON S.L. & U.N.R. CO.

Supreme Court of Oregon

February 22, 1892

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action by Wilbert K. Kinkead against the Oregon Short-Line & Utah Northern Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

W.W Cotton and Zera Snow, for appellant.

Thos O'Day, for respondent.

LORD J.

This is an action by an employe against his employer to recover damages for an injury received, by reason of an alleged omission to have one of the draw-bars of one of the cars comprising the train safely keyed, while engaged in the work for which he was employed. The particular facts alleged upon which a recovery is sought are "that on said date the defendant failed to have the draw-bars which connected said cars comprising said train properly inspected but, on the contrary, allowed the said train to be made up without having one of the draw-bars in one of the cars comprising same safely keyed, and without having the key to said draw-bar fastened with the usual split ring in general use for that purpose; that by reason of said draw-bar being in said unsafe and dangerous condition, and said train being run at a high rate of speed over said rough track from La Grande to Haines, a distance of 40 miles, the key which held said draw-bar in place jumped out, causing said train to part in two sections, so that when the front section thereof was stopped on the main line of said road, in order for plaintiff to uncouple the same, the rear section of said train, comprising nine cars, came up to and collided with the forward section, which collision was so violent that said entire train of twenty-one cars and engine was nearly completely wrecked and demolished; the said collision causing the injury to the plaintiff herein complained of." These allegations the defendant denied, and set up two defenses which the plaintiff in his turn controverted; but, as neither of them is material to the questions presented by this appeal, we may dismiss them without further consideration. The judgment went for the plaintiff, and the defendant now seeks to reverse it for error in overruling its motion for nonsuit, and upon certain exceptions reserved to instructions given and to instructions asked and refused.

The bill of exceptions discloses that there were but two witnesses, the plaintiff testifying in his own behalf, and the car inspector on behalf of the defendant. Our first inquiry is whether the plaintiff's testimony affords any proof of negligence. Upon this subject his testimony is to the effect that at the time alleged he was a brakeman in the employ of the defendant upon its railroad between La Grande and Huntington; that the train in question was made up by a separate crew, upon whom devolved such duties, and was turned over to the train crew, composed of himself and others, who took charge of and started with it to La Grande; that it was a part of his duty as such brakeman to uncouple cars at the various stations, for the purpose of setting out such cars upon the side tracks, and that he had received orders to set out a car at Haines station; that there was a steep grade a short distance from that station, and that the track at some places, owing to alternate freezing and thawing, was in a rough and uneven condition, but that flags were posted along such places to notify and caution the engineer to run the train slowly over them; that just before the train reached Haines station it had parted, but immediately upon its arrival there he got off, and went between the cars to uncouple them, when the detached portion of the train came up, and collided with the portion standing still, causing the cars between which he was standing to catch his arm and to injure it so badly that its amputation afterwards became necessary; that such was the force of the collision that the heads of the draw-bars were driven out of sight, and much damage done to the cars and their connections; that upon examination immediately after the accident it was found that one of the draw-bars where the train was parted was pulled out, and that the key was gone. His testimony also shows how a draw-bar is constructed and attached to the cars to connect them; and in explanation of the purpose of the key and the split ring it shows that in the rear end of the spindle of the draw-bar there is a hole, through which passes a wrought iron or steel key, and that through the hole in this key there is usually placed a split ring, or piece of wire, to hold the key in the spindle; that this key will not stay in its place unless it is securely fastened in that wise; that "it will jump out with the least jar, and the train will separate just as easy as if it was not coupled at all;" that it is not an unfrequent occurrence for trains to break apart on account of a draw-bar pulling out; that "sometimes they run for a month and do not break apart and sometimes they break apart two or three or four times on a trip;" that sometimes this occurs in starting out from a station in consequence of a too sudden movement or jerking of the train by the engineer, which breaks off the key-ring, but that "these key-rings, if properly in when the train starts, and the train is properly handled, will not jump out;" that sometimes the breaking apart of the train "is caused by steady pulling. If the link treads upon the key, the key will bend; it will be on a kind of slant, and will work up and down until it comes out." He also testifies that they were eight hours late, were running quite rapidly, and had gone nearly forty miles when the accident happened. The refusal of the trial court to grant the motion for nonsuit substantially upon this state of facts constitutes the first assignment of error. The contention is that the evidence fails to show that the defendant was guilty of negligence or failure of duty towards the plaintiff. In cases of this sort the burden of proof is upon the plaintiff to establish the particular negligence alleged. It cannot be found without evidence. Nor can it be presumed; but, on the other hand, in the absence of anything to the contrary, it will be presumed that the defendant has performed its duty; and this presumption of a proper performance of duty applies alike to both parties, and is a rule of universal application, which must prevail until overcome by proof. Mr. Wood says: "The servant, seeking to recover for an injury, takes the burden on himself of establishing negligence on the part of the master and due care on his own part; and he is met by two presumptions, both of which he must overcome in order to entitle him to a recovery: First. That the master has discharged his duty to him by providing suitable instrumentalities for the business, and in keeping them in condition; and this involved something more than the mere fact that the injury resulted from a defect in the machinery. It imposes upon him the burden of showing that the master had notice of the defect, or, in the...