Miller v. Southern P. R. Co.

• Decision Date: 06 January 1891
• Citation: 20 Or. 285,26 P. 70
• Parties: MILLER et al. v. SOUTHERN PAC. R. CO.
• Court: Oregon Supreme Court

26 P. 70

20 Or. 285

MILLER et al. v. SOUTHERN PAC. R. CO.

Supreme Court of Oregon

January 6, 1891

Appeal from circuit court, Marion county; R.P. BOISE, Judge.

(Syllabus by the Court.)

Any duty which the master is required to perform for the safety and protection of his servants cannot be delegated to any servant of any grade, so as to exempt the master from liability to a servant who has been injured by its non-performance.

It is the duty of a railroad company to keep its road-bed and track, rolling stock, machinery, and appliances in good and safe condition, to cause frequent and thorough inspection of these as can be done consistently with the conduct of its business, for the purpose of discovering any defects that may occur from accidental causes, or the effects of wear and tear or the progress of decay, to exercise care in the selection of its servants and in their retention in its service, and to adopt such rules and regulations as are calculated to guard against accidents, and to make the servants in its employ reasonably safe.

It is the duty of a switchman to operate the switch, and see that it properly adjusts the rails, so that the trains may pass with safety. The act he performs involves no duty of construction or repair, or other duty in regard to the switches of the road, if out of repair, or unfit for use whether by wear or tear, or by the criminal interference of strangers, than to promptly notify the company of its condition, so that it may be repaired, or its place supplied.

It is the law, in the absence of express contract, that establishes the relation of the parties, creating him agent or representative of the master who performs duties which the law itself makes it incumbent on the master to perform, and not the rules or regulations of the company designed for the guidance of its servants, and to secure reasonable safety in the conduct of its business.

The co-operation of the switchman is necessary to the successful management of the trains, and employes upon the train in the common service assume the risk of the negligent discharge of his duty.

Where the trial court refused to admit as evidence the indictment and judgment of the conviction of one W. A. Hill for the killing of the plaintiff's intestate by disarranging a switch on the defendant's railroad, and certain confessions he had made to one Dr. Davis, upon the ground that such conduct was res inter alios acta.

Bronaugh Northrup & McArthur, for appellant.

R. & E.B. Williams and Chas. H. Carey, for respondents.

LORD, J.

This is an action to recover damages, brought by the plaintiff, as administratrix of the estate of her husband, J.W. Miller deceased, under section 371, Hill's Code, for the death of the intestate, who was killed on the night of the 28th of July, 1889, by the derailing of an engine, of which he was engineer, in the employ of the defendant. His death is alleged to have been caused by the negligence of the defendant and its agents in suffering a certain switch at Lebanon Junction, on the line of the road, to be out of order, so that in operating it the rails did not form a continuous line, whereby the engine was thrown from the track, and he was so badly injured that he died the next day. After denying these facts, the defendant alleges as a separate defense (1) that the derailing of the engine was caused by one W.A. Hill, who, immediately before the engine was thrown from the track, criminally, and without the knowledge of the defendant, broke and disarranged said switch, whereby the rail was thrown out of line, so that the engine in passing at that place was derailed, and the intestate mortally injured; (2) that if any agent or servant of the defendant was guilty of negligence which caused the injury of the plaintiff's intestate, he was a fellow-servant of such intestate of Miller; and (3) that the injury was caused by the criminal act of one W.A. Hill, a stranger to defendant, combined with the negligence of said Miller and his fellow-servants. Issue being joined on this, a trial was had, which resulted in a verdict and judgment for the plaintiff, and from which this appeal is brought. At the close of the evidence for the plaintiff, the defendant interposed a motion for a judgment of nonsuit which, the trial court refusing, is assigned as error.

The evidence tended to show that the overland train, on which the plaintiff's intestate was acting as engineer of the locomotive drawing such train, was derailed at a switch about one and a half miles south of Albany, a little after 9 o'clock on the evening of Sunday, July 28, 1889; that the locomotive was overturned, and Miller was caught in or under it, whereby he was so badly bruised and scalded by the escaping steam that he died the next day. That the train reached Albany about 8:40 o'clock P.M., and stopped there 20 minutes for supper; that shortly after its arrival the Lebanon locomotive, in charge of Conductor Huston, left Albany on the main track to the Lebanon switch. On reaching the switch, Huston's locomotive was halted until a brakeman aboard of it could throw the switch, and let his locomotive pass from the main track to the Lebanon branch track; that it was after dark, necessitating the use of a lantern, and that when he attempted to move the switch, so as to throw the rails in position for the passage of the locomotive, something interfered with the shoving over of the switch-rails, whereupon, taking his lantern to discover the cause of it, he found clamped between the rails a stone, and that to remove it he had to return to the switch-lever, and throw it back into the same position it had occupied before he touched it, but that, in doing so, he observed the rails came properly back into place for the main line; that he went and threw the stone from the track, and then returned the switch-lever, without further difficulty, into position for the passage of the locomotive from the main track to the Lebanon branch track; that the locomotive passed through, and he then threw the switch back into proper position, for the passage of trains on the main track, but that he did not observe at the time, whether or not the rails obeyed the switch, and came back into line with the rails of the main track, but supposed that they did. Huston however, who was on the locomotive at the time, and about 20 feet distant from the switch, testified that he did not notice and observe that the rails at that time came into line with the rails of the main track; that he was able to observe the movements of the rails by the brakeman's lantern, which shone on the bright surface of the rails; that the switch was then locked by the brakeman, who remounted the locomotive, and it moved on towards Lebanon. In a few minutes after this, Miller came on the main track with his engine and train from Albany, and when within about 50 feet of the switch observed that the switch-rail was not in line with the main-track rail adjoining to and next beyond it on the south, but it was then too late to stop the train, and the locomotive was derailed, whereby Miller was so badly injured that he died the next day. The cause of the accident was due to the fact that a draw-bar of the switch was out of place, the linchpin being out, so that the rails had not come back to place when the brakeman had adjusted the switch after the engine going to Lebanon passed it. The construction of the switch was such that two iron rods attached to it passed from it through the switch-rail, one of the rods pushed the T-rail over into line with the rails on the branch line when desired, and the other rod pulled the rail back, when it was necessary, into line with the rails on the main track. Each rod had an iron eye or ring on the end next to the switch, which fitted into a shank, and was held into it by an iron pin or split key, passing through a hole in the outer end of the shank. An iron washer worked between the eye of the rod and the split key, so that the eye of the rod could not be slipped off of the shank without first drawing the split key out of its hole, and removing the washer from off the shank. When the switch was examined soon after the accident it was found that the switch indicated, or at least appeared to have been tampered with prior to the accident, either before or after the Lebanon locomotive passed through the switch. The rod which should have pulled the switch-rail back into line with the rails on the main track had been taken off of its shank, and dropped to the ground. The split pin which had held that rod in place on its shank was not found, but the washer which worked between the split pin and the rod's eye had been put back on the shank after the rod was removed off it. There is no other testimony than this tending to show how long the switch had been so disarranged before the accident occurred, or that the defendant company knew, or by the exercise of reasonable diligence ought to have discovered, that the switch had been tampered with, or was not in proper working order, before the time when the accident occurred.

Numerous exceptions were taken to instructions asked and refused and to instructions given by the trial court, and to the refusal to admit certain testimony relative to the confession and conviction of one W.A. Hill for tampering with and disarranging the switch which caused the accident, but all the questions involved may be reduced to two, namely: (1) Whether Conductor Huston or the brakeman who operated the switch occupied the position of vice-principal to the plaintiff's intestate Miller, so that his negligence in failing to discover that the switch was disarranged was the negligence of the company, and rendered it liable for the injury he sustained; and (2) whether the trial court...