Nordlund v. Lewis & C.R. Co.

• Decision Date: 15 November 1932
• Citation: 141 Or. 83,15 P.2d 980
• Parties: NORDLUND et al. v. LEWIS & CLARK R. CO.
• Court: Oregon Supreme Court

15 P.2d 980

141 Or. 83

NORDLUND et al. v. LEWIS & CLARK R. CO.

Supreme Court of Oregon

November 15, 1932

Department No. 1.

Appeal from Circuit Court, Clatsop County; H. K. Zimmerman, Judge.

Action by Anna Nordlund and others against the Lewis & Clark Railroad Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

This is an action instituted pursuant to the provisions of the Employers' Liability Act, §§ 49-1701 to 49-1707, Oregon Code 1930, by the widow and two minor daughters of one John Nordlund who was killed May 7, 1930, upon the premises of the defendant while in its employ as a brakeman. From a judgment based upon a verdict in favor of the plaintiffs for $25,000 the defendant has appealed.

Frank C. Hesse, of Astoria (Hesse & Franciscovich, Wilbur, Beckett Howell & Oppenheimer, and Veazie & Veazie, all of Portland on the brief), for appellant.

Arthur I. Moulton, of Portland (Lord & Moulton, of Portland, on the brief), for respondents.

ROSSMAN J.

Evidence favorable to the plaintiffs indicates that the defendant operates a stretch of logging railroad in Clatsop county, approximately 14 miles long. Its equipment is a locomotive and 31 sets of logging trucks. Each set consists of two trucks having four wheels each. The defendant hauls nothing except the logs cut by the La Dee Logging Company. At a curve on this railroad, 150 feet from the place identified by the witnesses as the rock crusher bridge, Nordlund was killed when the front wheels of the truck upon which he was performing his duties as a brakeman jumped from the rails and threw him and its load of logs into a ditch alongside of the tracks. The evidence described the ties at this particular place as "rotten" and "in pretty bad shape." It also indicated that "the rails had cut in on top of the ties and the spikes had worked loose and some of them was an inch or so from the flange of the rail." A witness, in referring to the spikes, testified: "I pulled some out with my fingers." Another swore that, due to the decayed condition of the ties and the looseness of the spikes, the rails were not held sufficiently tight to carry the logging train which was being operated over it. After the accident it was observed that the rail under the truck had partly turned over. As previously stated, Nordlund was riding upon one of the aforementioned trucks loaded with logs when its forward wheels left the rails thereby throwing the load of logs, together with Nordlund, into the adjacent ditch. One of the witnesses described the condition of this truck thus: "Truck No. 4 had a broken bunk and two sharp wheels, sharp-flanged wheels." He added that the bunk was in such condition that "the weight of the load would bring it down," and swore that, when it was in that condition, "it doesn't let the truck swing under the bunk on the curve" thus causing the truck to "jump the track." He also testified that the flanges of the wheels which had been worn sharp by long- continued use would cause them to "go over the rail much quicker than if the wheels were not sharp." A few days prior to this accident the employee in charge of the defendant's equipment had sent this particular truck to the repair plant so that new wheels would be installed upon it, but the truck was again placed in operation before all of the defective wheels had been replaced with proper ones.

The trial judge's instructions to the jury, after informing them that the plaintiffs predicated their claim to recovery upon charges of negligence, defined common-law negligence, and then stated: "However, in this particular case, the law holds the defendant to a little bit different rule of conduct than this term of ordinary care because the law particularly specifies certain duties which an employer must perform for the care and protection of his employee, and a failure to comply with those statutory provisions which I will explain to you a little later on constitute negligence whether you think that a person of ordinary prudence would do the things specified in the statute or not. In other words, a failure to comply with the statute if there was such a failure on the part of the defendant, the employer would be negligent; *** the statutes of this State make it the duty of employers having charge of or responsible for any work involving risk or danger, to use every device, care and/or precaution which is practicable to use for the protection of the life and limb of its employees, limited only by the necessity of preserving the efficiency of the work in which it is engaged and the equipment used in it and without regard to additional cost of safety devices or precautions; that is the duty which the Employers' Liability Act imposes upon employers for the protection of their employees. Your first inquiry therefore will be whether the work in which the defendant employed plaintiff involves a risk or danger, and if you find that it did, you will then proceed further and inquire whether in carrying on its work the defendant, in respect of the particular allegations mentioned in Plaintiffs' Complaint, used the care and precaution required of it by law, that is, whether it used every device, care and precaution practicable to be used with the limitation already given you; if it failed to do so in some of the particulars mentioned in Plaintiffs' Complaint and as a direct and proximate result of such failure, John Nordlund met his death, then plaintiffs in this case are entitled to recover such damages as were caused to them by reason of his death, to be assessed by you under the rule respecting the measure of damages I shall give you later."

It will be recalled that the plaintiffs are the widow and children of the deceased. Section 49-1704 grants to the surviving widow and children of an employee killed through the employer's violation of the provisions of the act, a right of action. It grants one to the executor or administrator of such deceased person's estate only in the event that there is left no surviving widow, husband, children, lineal heirs, mother or father, residing within the state. Section 5-703 grants a cause of action in amount not exceeding $10,000 to the personal representative of one whose death has been caused by a wrongful act. The above being the law which confers a cause of action for a life wrongfully taken, it is evident that the plaintiffs were required to bring their cause within the provisions of the Employers' Liability Act. If they were unable to do so their cause was bound to fail because they would be improper parties to an action under section 5-703.

In criticism of the above instructions, the defendant urges that they instructed the jury that this case fell within the provisions of the Employers' Liability Act. We do not believe that these instructions are subject to that criticism. It is true that a portion of them, if read alone, could convey the idea that the court had decided, as a matter of law, that the operation of the railroad subjected the employees to risk and danger, but if these instructions, in view of the manner in which the railroad was operated, constituted error, it was invited error because the defendant requested the court to instruct the jury as follows: "There was a duty resting upon the defendant in this action, in the operation of its railroad in all work involving risk and danger, to use every device, care and precaution practical to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the machinery or apparatus or device employed at the time and place of this accident, and in this instruction and in other instructions I will describe to you the degree of care to be used by the defendant."

This requested instruction was an admission that the act was applicable to the defendant's railroad, and that whenever the operations subjected the employees to risk and danger, the defendant owed a duty to use every practical safety device. Surely no one believes that a brakeman whose duties demand that he ride upon logging trucks is engaged in an employment free from risk and danger. Section 49-1815, Oregon Code 1930, being a paragraph of our Workmen's Compensation Law, provides: "The hazardous occupations to which this act is applicable are as follows: *** (d) Logging, lumbering and ship-building operations; (e) Logging, street and interurban railroads not engaged in interstate commerce. *** If the duties performed by a brakeman and which demand that he ride upon logging trucks do not subject him to risk and danger, then it would be difficult to conceive of any that do. Very likely a case would have to be a rare one which would justify a court in withdrawing from the jury the issue whether the work involved sufficient danger to render applicable the act, but, if an affirmance or reversal of this judgment were dependent upon a determination whether the facts could justify a court in holding as a matter of law that the deceased's work subjected him to a sufficient danger to bring him within the protection of the act, we would not hesitate to affirm the judgment; but we do not believe that the circuit court withdrew that issue from the jury. For it will be observed that the court, having defined the issues and having used the challenged words, continued: "Your first inquiry, therefore, will be whether the work in which the defendant employed plaintiff involves a risk or danger, and if you find that it did, you will then proceed further and inquire whether in carrying on its work the defendant *** used the care and precaution required of it by law. ***" Apparently the trial judge used the portions of the instructions criticized by the defendant only as a prelude or a means of approach to the provisions of...