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

• Citation: 142 P. 554,71 Or. 177
• Parties: OBERLIN v. OREGON-WASHINGTON R. & NAVIGATION CO.
• Decision Date: 16 June 1914
• Court: Oregon Supreme Court

142 P. 554

71 Or. 177

OBERLIN v. OREGON-WASHINGTON R. & NAVIGATION CO.

Supreme Court of Oregon

June 16, 1914

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by Frank R. Oberlin against the Oregon-Washington Railroad &amp Navigation Company. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action brought under the act of Congress of April 22 1908, 35 U.S. Stat. 65, c. 149, commonly known as the federal Employers' Liability Act. The substance of the complaint is that the defendant at all the times mentioned was a railway common carrier engaged in interstate commerce between the states of Oregon and Washington and other states, and that the plaintiff was in its employ in the prosecution of that business. He charges that the defendant used, in its switching service connected with its general transaction of interstate commerce, a steam locomotive which was defective because the throttle thereof was too short, by reason of which the engineer could not, at the same time, control it and look out for signals; further, that the coupling appliance connected with the engine, and its tender was so short that there was not sufficient clear space between the tender and a car to be coupled; that the tender had a square tank instead of a sloping one, and that, taken all together the locomotive and its equipments were so insufficient for the purpose for which they were designed, all of which was known to the defendant, the mere use of them was negligence on its part. As a further element of his grievance, the plaintiff alleges, in substance, that the defendant and its employés in charge of the locomotive so negligently and violently operated it as to run down upon the plaintiff while he was engaged in coupling the engine to a car that they crushed him between the tender and the car, although he signaled to them to stop, which failure to stop was the direct result of the engineer not being able to at once control the engine and observe the signal. The answer traverses the complaint in material particulars, especially upon the matter of the accident happening in the prosecution of interstate commerce. It alleges, in substance, that the plaintiff willfully violated certain rules established by the defendant, and of which he had knowledge, forbidding its employés from going between cars in motion to couple or uncouple them, and from riding on the front or rear end of an engine or of a car during the process of coupling, and that the plaintiff's injuries happened because of his disobedience of those regulations. It also urged that the plaintiff was an experienced railroad man with knowledge of the requirements and dangers of the vocation, so that he assumed the risk of his employment, with the consequence that the defendant was not to blame for the happening of the accident; the same being one of the ordinary results of the service in which he was engaged. The new matter of the answer was denied by the reply. A jury trial resulted in a verdict for the plaintiff, and from the consequent judgment the defendant appeals.

Charles E. Cochran, of Portland (Arthur C. Spencer, of Portland, on the brief), for appellant. Loring K. Adams, of Portland (Sinnott & Adams, of Portland, on the brief), for respondent.

BURNETT J. (after stating the facts as above).

The principal question to be determined is whether or not the case is one to be controlled by the federal Employers' Liability Act. That statute provides:

"That every common carrier by railroad while engaging in commerce between any of the several states * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

As a matter of pleading the complaint is sufficient to show character and relationship of both the plaintiff and the defendant to which the act in question applies. As a matter of fact it appears that the plaintiff was a brakeman in a switching crew in the Portland yards of the defendant. There is testimony tending to show that the general duties of the crew were to use the locomotive in question in moving indiscriminately not only cars used in local traffic, but also those used by the defendant in carrying goods destined to and received from other states of the Union. The accident under consideration, it is true, occurred at the particular moment the plaintiff was engaged in coupling the locomotive to a private car used by the superintendent of a division wholly within the state of Oregon, and as the plaintiff began his night's work, that being the first car which the crew was directed to move. It happened, however, on the tracks constantly used by the defendant in handling interstate as well as intrastate commerce, and it was in connection with a locomotive used in both those kinds of traffic. Hence there was testimony which the jury was authorized to consider in arriving at the conclusion that there was a natural connection between the employment of the plaintiff and the interstate commerce feature of the defendant's business. As stated by Mr. Justice Bean in Montgomery v. S. P. Co., 64 Or. 597, 131 P. 507, 47 L. R. A. (N. S.) 137:

"It would be practically impossible to name any servant of an interstate road who is employed exclusively in the furtherance of purely interstate traffic. All employés who participate in the maintenance or operation of the instrumentalities for the general use of the road, thereby enhancing the utility of such commerce, are necessarily engaged in the work of interstate commerce, within the meaning of the act. The fact that a portion of plaintiff's work pertained to local traffic would not change the character of his labor in the performance of acts reasonably proximate and essential to the moving of interstate freight and in assistance thereof."

In Mondou v. N. Y., N.H. & H. R. R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L. R. A. (N. S.) 44, the Supreme Court of the United States said:

"But, of course, it [the act in question] does not extend to any matter or thing which does not have a real or substantial relation to some part of such commerce. * * * 'Therefore Congress may legislate about the agents and instruments of interstate commerce, and about the conditions under which those agents and instruments perform the work of interstate commerce, whenever such legislation bears, or in the exercise of a fair legislative discretion can be deemed to bear, upon the reliability or promptness or economy or security or utility of the Interstate Commerce Act.' * * * It is not a valid objection that the act embraces instances where the causal negligence is that of an employé engaged in intrastate commerce; for such negligence, when operating injuriously upon an employé engaged in interstate commerce, has the same effect upon that commerce as if the negligent employé were also engaged therein."

The test indicated by this utterance of the United States Supreme Court in determining whether the act in question is subject to the federal legislation upon the subject is whether or not the operation of interstate commerce by the defendant is affected by the injury to the employé. Bearing in mind that the crew of which the plaintiff was a member was engaged habitually with the locomotive in question in handling cars of all kinds coming into the yard of the defendant, whether interstate or intrastate, without distinction, it must be apparent that the efficiency of the defendant's force of employés engaged in interstate commerce was appreciably impaired by the injury happening to the plaintiff. Under the circumstances the two kinds of trade were so intimately and inseparably commingled that it is impracticable to say that at one moment the plaintiff is engaged in one kind of traffic and at the next in the other. The statute is remedial in its nature and is to be construed liberally.

In Pedersen v. Delaware, Lackawanna & W. R. R. Co., 229 U.S. 146, 33 S.Ct. 648, 57 L.Ed. 1125, an employé of an interstate railway carrier was killed while carrying a sack of rivets to be used on the morrow in repairing a bridge over which regularly passed both kinds of commerce; and, although he was killed by a train operating wholly within the state where the accident happened, yet it was held by the United States Supreme Court that the case came within the federal act already mentioned, because the bridge to be repaired was habitually used in interstate commerce, as well as the other...