Oregon Short Line & U.N. Ry. Co. v. Tracy

• Decision Date: 25 February 1895
• Parties: OREGON SHORT LINE & U. N. RY. CO. v. TRACY.
• Court: U.S. Court of Appeals — Ninth Circuit

66 F. 931

OREGON SHORT LINE & U. N. RY. CO. v. TRACY.

United States Court of Appeals, Ninth Circuit.

February 25, 1895

Cox Cotton, Teal & Minor, for plaintiff in error.

A. S Bennett, for defendant in error.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District judge/

GILBERT Circuit Judge.

The defendant in error was the plaintiff in the court below in an action against the railway company to recover damages for personal injuries received by him on the 16th day of August 1891. The plaintiff was a brakeman in the employment of the railway company. At the time of his injury he was a member of the crew of east-bound freight train No. 28. At Clarnie station, about seven miles from Portland, there is a spur or side track about one mile in length, extending to a stone quarry. In the regular course of the railway company's business, the train was required to take 'blind siding reports'; that is, they were to ascertain at all sidings or spur tracks, such as that at Clarnie, the number of cars upon such tracks, and the condition of the same.

On the morning that the plaintiff was injured his train arrived at the Clarnie about 10:30. The conductor of the train remained with the cars upon the main track. The plaintiff, together with two brakemen and a train hand, took the engine to go down the spur track to obtain the required information concerning cars that might be found there. They found four or five empty coal cars at the head of the spur, near the main track. They coupled the engine to these cars, and pushed them on down the spur, to look for others. The plaintiff stood upon the foremost car, and furthest from the engine, and was keeping a lookout for obstructions upon the track. The train was running at a speed of four or five miles per hour, possibly faster, when the plaintiff gave to the engineer a signal to go slower. Almost immediately thereafter he gave a signal to stop, having discovered a car upon the track. These signals were answered by the engineer, but the train struck the standing car. The force with which the cars came together is variously stated by the witnesses; some of the witnesses testifying that the force was not greater than in an ordinary coupling; the plaintiff testifying that it was many times greater. The plaintiff charges in his complaint, and stated in his evidence, that by reason of the force with which the cars came together he was thrown from the center of the car upon which he stood, over the end of the car, and upon the track, where he received the injury. The defendant's evidence tended to show that the plaintiff undertook to step from his car into the car that stood upon the track, and that in so doing he fell between the cars. The plaintiff charged the defendant with negligence on account of the condition of the track on the spur, alleging that, on account of the curves of said track, and the amount of brush and timber that was allowed to grow thereon, it was possible to see but a short distance ahead of the train, and that the defendant had negligently failed and neglected to remove the brush and timber along the track; that thereby the view was obscured so that it was impossible for any one in charge of the train, or riding upon the same, to discover any obstruction which might be ahead of him upon the track. The trial resulted in a judgment of for the plaintiff for the sum of $4,000.

The principal question for consideration upon the writ of error concerns the instruction of the court to the jury in regard to the condition of the defendant's track, and the obstruction to the same by reason of the brush. It is said that the court erred in refusing the instruction asked for by the defendant, and in charging the jury as follows:

'It is the duty of a railroad company to be careful and prudent in providing a safe roadbed for its employes, and in keeping the same free from obstructions; and if it fails in this respect, and its employes are injured thereby, without fault on their part, the company is liable. There is no arbitrary rule as to how near the track brush or timber may be left standing. This is a matter that depends upon circumstances, the character of the road, the use to which it is put, the difficulty or expense of clearing, and the danger, if any, to which those engaged on the road are subject in consequence of such nearness. It is a question that addresses itself to your judgment as practical men, whether the conduct of the company in this respect was reasonable under all these circumstances.' The instruction requested by the defendant is as follows:

'The question of overhanging brush, which the plaintiff claims was of such a character as that it obstructed the view of himself and trainmen while passing over the side track in question, is material in this case, and you cannot consider these claims of the plaintiff in determining the question of whether or not there was nay negligence of the defendant upon which the plaintiff can recover.'

It is contended by the plaintiff in error that the presence of the brush overhanging the track on the spur was one of the conditions of that track, visible to the plaintiff, and that he assumed all the risks incident thereto. In support of that contention reference is made to Kohn v. McNulta, 147 U.S. 238, 13 Sup.Ct. 298; Southern Pac. Co. v. Seley, 152 U.S. 145, 14 Sup.Ct. 530; and Tuttle v. Railway Co., 122 U.S. 189, 7 Sup.Ct. 1166. In the first of these cases the plaintiff was injured while coupling freight cars. The injury was said to have been occasioned by the fact that the cars were fitted out with double deadwoods or bumpers of unusual length; but it appeared that cars constructed in that manner were not unusual upon that track, and that the risk of coupling them was an obvious one, and required no special skill or knowledge for its detection. It was therefore held that the risk of coupling such cars was one of the ordinary risks incurred by the plaintiff, and that he could not recover. In the case of Southern Pac. Co. v. Seley an employed of the railroad company was injured, while coupling cars of the company, by putting his foot into an unblocked frog at the switch, whereby his food was caught and held, and he was thrown down and killed. In an action by his administratrix for the damages it was held that Seley must be assumed to have entered into and continued in the employment of the railroad company with full knowledge of any danger which might arise from the use of unblocked frogs. In Tuttle v. Railway Co., the accident would not have happened to the employe but for the sharpness of a curve of the company's track, and it was contended that the construction and maintenance of a track with such sharp curves was itself negligence. But the court held that the perils from a sharp curve were seen and known, and that they were not like the defects of unsafe machinery, which the employer has neglected to repair, and which his employes have reason to suppose is in proper working condition. The court said:

'The danger existed only on the inside of the curve. This must have been known to him. It would be presumed that, as an experienced brakeman, he did know it, for it was one of those things which happened in the course of his employment under such conditions as existed here.'

But it is not apparent in the case before the court that the dangerous condition of the track, owing to the overhanging brush, was one of the conditions of its construction, or that such danger was necessarily apparent to an employe of the road, however skilled or experienced. The condition of the brush by the side of the track is not a fixed one. It is not like the curves, or the embankments, or the...