Makino v. Spokane, P. & S. Ry. Co.

• Decision Date: 12 January 1937
• Citation: 63 P.2d 1082,155 Or. 317
• Parties: MAKINO v. SPOKANE, P. & S. RY. CO.
• Court: Oregon Supreme Court

63 P.2d 1082

155 Or. 317

MAKINO v. SPOKANE, P. & S. RY. CO.

Supreme Court of Oregon

January 12, 1937

En Banc

Appeal from Circuit Court, Multnomah County; J. P. Winter, Judge.

Action by A. Makino against the Spokane, Portland & Seattle Railway Company to recover damages for personal injury suffered by plaintiff while in defendant's employ. From a judgment for plaintiff in the sum of $5,000 on a jury's verdict defendant appeals.

Affirmed.

Fletcher Rockwood, of Portland (Carey, Hart, Spencer & McCulloch, of Portland, on the brief), for appellant.

Arthur M. Dibble and Dan J. Malarkey, both of Portland (Malarkey Sabin & Herbring, of Portland, on the brief), for respondent.

ROSSMAN Justice.

This appeal brings before us only two assignments of error, one challenges a ruling of the circuit court which denied the defendant's motion for a directed verdict, and the other is predicated upon an order which overruled the defendant's objection to a portion of the argument of plaintiff's counsel to the jury.

The defendant's motion for a directed verdict was based upon a contention that the injuries which the plaintiff sustained resulted from a risk of his employment which he had assumed. The plaintiff was a section laborer in the defendant's employ, engaged in maintaining defendant's interstate railroad. His action to recover damages is controlled by the provisions of the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59) which preserve intact the defense of assumption of risk ( Northwestern Pacific Railroad Co. v Bobo, 290 U.S. 499, 54 S.Ct. 263, 78 L.Ed. 462; Toledo, St. L. & W. R. Co. v. Allen, 276 U.S. 165 48 S.Ct. 215, 216, 72 L.Ed. 513; Cheffings v. Hines, 104 Or. 81, 206 P. 726; 39 C.J., Master and Servant, p. 689 § 892), except in instances which do not include the case before us. We shall now set forth briefly the facts which determine whether the plaintiff had assumed the risk which caused his injury.

The plaintiff was born in Japan June 1, 1901, and therefore on April 20, 1933, that being the date of his injury, was 32 years and 10 months old. He remained in Japan until he was 18 years old. Some time after coming to the United States, he entered the defendant's employ, and at the time of his injury had worked for it for 2 1/2 years as a section and extra gang laborer. He had not had the benefit of training, and hence was compelled to resort to common manual labor. He described his work as "fixing the track." His wages were 41 cents per hour, less what he described as "a cut of 10%" and less 75 cents per month hospital dues. His foreman described him as "a good workman." Most of his testimony was given through the medium of an interpreter. April 20, 1933, pursuant to directions, the gang of five laborers and one foreman, of which the plaintiff was a member, went to the outlying place where the plaintiff sustained his injury for the purpose of obtaining a rail. The plaintiff had never been at this place before. The trip was made on a gasoline motorcar to which was attached a push car. The rail was supported on two posts of the kind commonly used by railroads for retaining spare rails alongside of the track. The posts were 12 feet from the ends of the ties of the railroad track and were 18 feet apart. The foreman planned that the crew should carry the rail from the posts to the push car, the deck of which was 2 1/2 or 3 feet above the roadbed. The rail was 33 feet long and had been used. A new rail of that type weighed 935 pounds, and this one weighed approximately that amount. The ground between the roadbed and the rail was rough and was covered with tall vegetation. In this growth, especially near the roadbed, were large rocks partly concealed, according to the plaintiff, by "some brush sprouting and the grass growing." The plaintiff testified that he had no opportunity upon his arrival at this place to take careful note of the surroundings "because I was hurried." The evidence indicates that the east posts were on ground about a foot higher than that supporting the west posts, there being a slope from the one to the other. Likewise, as is usual, the roadbed was built up so that it was higher than the adjacent ground; hence, one walking from the posts to the roadbed was compelled to ascend the slope created by the crushed rock roadbed.

When the crew arrived at the place just described, the foreman, according to the plaintiff's testimony, said: "Load this rail on the car and take it away as soon as possible." Thereupon the foreman and two of the laborers took positions at the east end of the rail, that is, the end that was a foot or more higher than the west end, and directed the plaintiff and the two other men to take hold of the west end of the rail. Pursuant to the foreman's directions, one of the laborers, named Ono, placed himself at the west end of the rail, the plaintiff took a position alongside of Ono, and a third laborer, named Oshita, took hold of the rail to the plaintiff's right. Obedient to the foreman, each of the five men grasped the rail with his right hand over, and his left hand under, the rail. The foreman did likewise. Then the foreman called out, "Ready, pick it up." Whereupon the six lifted the rail from the rail blocks and started for the push car. When the rail had been carried to a point near the ends of the ties, the load became too heavy for the plaintiff, with the result that, although he and his colaborers exerted all of their strength, and the foreman repeatedly shouted, "Hold up rail, hold up rail," the west end of the rail gradually dropped to the ground. The plaintiff's right foot and ankle were caught under the weight of the rail, thereby producing the injuries for which damages are sought in this action. Appellant's brief, referring to the plaintiff and his testimony, describes the accident thus: "After taking hold of the rail, the work proceeded as follows: 'Then we take it by the arms and started to walk, proceeded a few steps towards the end of the railroad ties. Then, holding the rail up this way (illustrating), I became weakened. When we reached near the push car, we have to hold it up, and somehow when we got the rail up to my breast and gradually we came pushing sideways, this way (illustrating), and there was a little bank, a stepping up to the bank, then the rail was pressing back with this heavy weight.' The rail pressed back 'towards myself.' The west end was then lower than the east end. The ground at the west end was rocky and 'more rougher' than at the east end. 'After lifting the rail, and in walking forward towards the rails on which was the push car, it was feeling very heavy and it seemed as if I was exhausting,-my strength was exhausting; still holding the rail, and I tried to raise up in order to place the rail on the push car. Then after we raised it a little to the breast, the ground was pretty steep, and then gradually it pressed backwards against my body. I could hardly hold the rail and it was pressing against me. Then the new rail began to slide down against me and I couldn't hold it, but to the last minute I still hung onto the rail, and it dropped down.' 'When the rail dropped down on the foot, I still holding the rail. *** It dropped down gradually.' The rail came to rest on his ankle when the west end lowered to the ground. After the accident the other five members of the crew loaded the rail by moving one end at a time." No one had stumbled after the crew undertook to carry the rail.

The only other occasion upon which the plaintiff had assisted in the carrying of a rail occurred four or five days prior to his accident. Upon that occasion he, together with the five men above mentioned, carried a rail of the same size and kind about six feet, but, according to the evidence, the ground over which that rail was carried was flat and free from obstructions. Defendant's foreman, as its witness, described the ground at that place as "easy to walk" upon and said that the place was an "exactly different place" from the one where the accident occurred. The plaintiff swore that prior to his injury he was ignorant of the weight of a rail.

The complaint is predicated upon two charges of negligence: (a) Insufficiency in size of the crew, it being alleged that the work undertaken required at least eight able-bodied men; (b) failure by the defendant, through its foreman, to choose a safe manner of moving the rail, it being alleged that only one end at a time should have been moved until the rail had been advanced to the push car.

It is clear that in this action, which has its origin in a federal statute, we are controlled by the law of negligence as formulated and announced by the federal courts. Upon this appeal the defendant makes no contention that proof of its negligence is absent. As has already been indicated, the defense of assumption of risk is pleadable in actions of this character. Under the first of the two assignments of error, the question now confronts us whether the evidence conclusively indicates that the plaintiff, before his injury, had agreed expressly or impliedly that he would assume the risk of being injured while assisting in carrying this rail. The defendant does not contend that any express agreement had been effected, but insists that an implied agreement should be drawn from the above circumstances.

Vast changes have taken place in the employer-employee relationship since Priestley v. Fowler, 3 Mees. & W. 1 Murph. & H. 305, 1 Jur. 987, 19 Eng.Rul.Cas. 102, decided in the year 1837, introduced the doctrine of assumption of risk into the law of master and servant. Lord Abinger, in promulgating the rule in the decision just cited, stated: "The servant is not bound to risk his safety in the service of his master, and may, if he...