Newkirk v. Oregon-Washington R. & Nav. Co.

• Decision Date: 15 January 1929
• Citation: 273 P. 707,128 Or. 28
• Parties: NEWKIRK v. OREGON-WASHINGTON R. & NAV. CO.
• Court: Oregon Supreme Court

273 P. 707

128 Or. 28

NEWKIRK v. OREGON-WASHINGTON R. & NAV. CO.

Supreme Court of Oregon

January 15, 1929

In Bank.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Harry C. Newkirk against the Oregon-Washington Railroad &amp Navigation Company. From a judgment for plaintiff, defendant appeals. Affirmed.

October 3, 1924, plaintiff and a traveling companion boarded a flat car in a freight train eastward bound at Troutdale. Plaintiff and his traveling companion were on their way to Hood River to work in the apple orchards. The car was loaded with sawed timber. Some of the timber was of large size. The timber was of unequal length. Plaintiff seated himself near the front end of the car in a niche formed by the timber. His companion found a similar place at the same end of the car some 4 or 5 feet from plaintiff. The train did not stop until it had passed Oneonta, where it passed another freight train westward bound. At Oneonta plaintiff was thrown from the car by a brakeman on the train on which he was riding. That train did not stop at Oneonta. Plaintiff was run over by the other train, which was standing on the siding as the east-bound train passed through. The west-bound train passed over plaintiff so as to sever both of his hands from his arms, one of which was found on either side of the passing track, one against one rail, the other against the other rail. One of the arms was also severed above the elbow. We say the plaintiff was thrown from the car because we feel bound by the jury's verdict. Plaintiff brought this action to recover damages he suffered in the sum of $100,000. A verdict was returned in his favor for the sum of $12,500.

The answer contains denial of the material allegations of the complaint and the affirmative allegation that the defendant is engaged in intrastate, interstate, and foreign commerce. No reply was filed; hence the affirmative allegation in the answer is admitted.

The only question on the appeal is the motion for a directed verdict. Defendant in presenting that motion relies on two legal propositions, namely: First, that there is no evidence that the defendant's brakeman, who assaulted plaintiff and threw him off the train, was authorized to eject trespassers from a moving train; second, the evidence relied upon by plaintiff to that effect is an inference upon an inference, and therefore not competent. Taking the two propositions together, defendant confidently urges to this court that there is no evidence on the essential allegation that said brakeman was acting within the scope of his duties or for defendant when he caused the injuries.

Rand and Rossman, JJ., dissenting.

Roy F. Shields, of Portland (Arthur C. Spencer, A. A Murphy, and Roy F. Shields, all of Portland, on the briefs) for appellant.

Arthur I. Moulton, of Portland (Lord & Moulton, of Portland, on the briefs), for respondent.

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

We must accept the jury's verdict as to the facts. The evidence was very contradictory. Defendant testified that he was brutally and without warning assaulted by being struck on the side of the head with a lantern, or some other object which rendered him at least partially unconscious, and then partially shoved and partially kicked from the train or thrown therefrom. The conductor on the train and his three brakemen, the engineer, and fireman, all testified in direct contradiction to the testimony of plaintiff and his traveling companion, Mr. Stotlar. If we were sitting as a trier of facts, we would probably reach a different conclusion from the jury's verdict; but we are not permitted to weigh the evidence nor to pass upon the credibility of the witnesses.

Defendant insists, however, that there is no evidence that a brakeman was authorized to eject trespassers from a moving train. We can safely concede that no such authority is claimed to be vested in a brakeman. Defendant in stating the legal proposition in that language does not correctly represent the position taken by plaintiff. We might safely say that we think no railroad company through its employés or officers would authorize any person to hurl a trespasser from a moving train. The real controversy centers around whether or not a brakeman by virtue of his employment is authorized to eject in a proper manner a trespasser from a freight train. If a brakeman is so authorized, the question is then narrowed down to whether or not a brakeman who exceeds that authority and rashly ejects a trespasser from a moving train thereby renders a railroad company liable for the consequences.

The authorities are in conflict. Defendant relies on the following authorities, most of which seem to squarely hold to the principle that a railroad brakeman on a freight train is not impliedly authorized by virtue of his employment to eject a trespasser from a moving or standing freight train: 20 Am. & Eng. Ency. of Law (2d Ed.) 172, 173; 2 Wood's, Railway Law, 1202, 1203; 6 Thompson, Commentaries on the Law of Negligence, 667, § 7718; Farber v. Missouri P. Ry. Co., 116 Mo. 81, 22 S.W. 631, 20 L. R. A. 350; International & G. N. R. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039, 1040, 1041, 27 Am. St. Rep. 902; Harrington v. Boston & M. R. R., 213 Mass. 338, 100 N.E. 606, 45 L. R. A. (N. S.) 813, Ann. Cas. 1914A, 597; Lake Shore & M. S. Ry. Co. v. Peterson, 144 Ind. 214, 42 N.E. 480, 482, 43 N.E. 1; Corcoran v. Concord & M. R. Co. (C. C. A.) 56 F. 1014; Bess v. Chesapeake & O. Ry. Co., 35 W.Va. 492, 14 S.E. 234, 29 Am. St. Rep. 820; Marion v. Chicago, R.I. & P. R. Co., 59 Iowa, 428, 13 N.W. 415, 416, 44 Am. Rep. 687; Randall v. Chicago & G. T. Ry. Co., 113 Mich. 115, 71 N.W. 450, 38 L. R. A. 666; Chicago & W. I. R. R. Co. v. Ketchem, 99 Ill.App. 660, 663, 664.

The following are cases where a brakeman or other trainman threw stones or coal at the trespasser in order to drive him off the train: Patenaude v. Boston & M. R. R., 77 N.H. 74, 87 A. 249, 250; Chesapeake & O. R. Co. v. Anderson, 93 Va. 650, 25 S.E. 947, 949, Col. 2; Georgia Railroad & Banking Co. v. Wood et al., 94 Ga. 124, 21 S.E. 288, 47 Am. St. Rep. 146; Whistler v. Cowan et al., 26 Ohio Cir. Ct. R. 511. Most of these cases would be more impressive as authorities if it were not for the manner in which they put the proposition. It seems to the writer that in every instance, with possibly one or two exceptions, the statement is made that a brakeman has not implied authority to drive a trespasser from a moving train by viciously assaulting him in some way. This is not the problem presented. The problem is: Has a brakeman implied authority by reason of his employment to eject trespassers from a freight train? If he has, and in the course of his employment the trespasser is ejected, the railroad company is liable if the ejection is committed in an improper or vicious manner to the injury of a trespasser. The authorities relied upon by plaintiff seem to the writer to more logically state their reasons for the conclusion they reach. It cannot be denied that a freight train is primarily in charge of a conductor. It is equally true that the brakemen are his assistants. Most of the authorities cited by defendant either assume or decide that a conductor in charge of a freight train has authority to eject trespassers. Some authorities go so far as to say that it is his duty to eject trespassers at a proper time and in a proper way. That the conductor may call upon the brakemen to assist him in the performance of that duty seems not to be disputed.

But it is insisted on the part of defendant that in order to make the railroad company liable for a brakeman's act the brakeman must be specially ordered to eject the particular trespasser at the time, or must have specific general orders to that effect. We do not believe that to be correct. It seems to us just as reasonable to require the brakeman to get specific orders for any other of his duties as to exact particular instructions for the protection of his train against the invasion of trespassers.

The conductor in the instant case testified:

"Q. It is the practice of brakemen on trains to look after persons who are trespassers and see they don't trespass on the train? A. No, not compulsory."

We take it from that answer that, while that is one of the duties of a brakeman, the company does not arbitrarily exact the strict performance of that duty. It is strenuously argued by defendant that it would cost much more to see that every trespasser is put off the train than it would to carry them. But, even so, we think that some discretion is left to the conductor and brakeman. The presence of trespassers, especially such vicious trespassers as the learned counsel for defendant have described in their brief, might do a great deal of harm, not only to the railroad company's property, but the property of its patrons intrusted to the railroad company for transportation. There must be some power lodged somewhere along the train for the lawful protection of the property committed to the railroad company for transportation. The conductor further testified:

"Q. You don't expel persons from the train? A. No, sir; I might tell them to get off the train while the train is stopped, but I would not walk over a train to put trespassers off, because that is not our business.

"Q. It isn't your business? A. No."

The authorities seem to be practically unanimous in holding that the person in charge of the train has authority to eject trespassers therefrom. The question presented here then narrows itself down simply to the extent or limit of the authority of brakemen on freight trains. We believe it to be a part of the duty of brakemen on freight trains to assist the conductor in...