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

• Decision Date: 15 December 1914
• Citation: 144 P. 762,74 Or. 307
• Parties: PFEIFFER v. OREGON-WASHINGTON R. & NAV. CO.
• Court: Oregon Supreme Court

144 P. 762

74 Or. 307

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

Supreme Court of Oregon

December 15, 1914

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by H. M. Pfeiffer against the Oregon-Washington Railroad &amp Navigation Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for negligence under the federal Employers' Liability Act. A verdict was rendered in favor of the plaintiff, and, from a judgment entered thereon, the defendant appeals.

The gist of the alleged negligence of the defendant is that one J. W. Hampson, an engineer of the defendant, recklessly carelessly, and negligently moved engine No. 533, in his charge, from its position on a passing track, without any headlights, without blowing the engine whistle, without ringing any bell, and in defiance of a stop signal given him by lantern light by an employé of the defendant; that he ran said engine in and upon the main line of the defendant against the engine of which the plaintiff had charge, and upon which he was working, with such force and violence that plaintiff's engine No. 544 was driven forward, the cylinder thereof striking the plaintiff in the back and throwing him with great force upon the track in front of the wheels of the engine, which ran over the left arm and hand of the plaintiff, thereby injuring him. Issues were raised by the answer. The defendant alleges that the injury was caused by the negligence of the plaintiff, and that he assumed the risk of the injury as an incident to his employment. A reply was filed putting in issue the new matter of the answer.

It appears from the record that the evidence tended to show substantially the following circumstances: On May 22, 1913 the defendant was operating a train called "Extra 533 West," which was in charge of Engineer Hampson and Conductor King. This train had orders to run from Pendleton to Umatilla. Upon arriving at Pilot Rock Junction, four or five miles west of Pendleton, a defect appeared in the engine, by reason of which sufficient steam pressure could not be secured to complete the run, and the crew were compelled to go on a passing track. They phoned the dispatcher at La Grande for help. Another train, known as "Extra 544 West," was operated by the defendant in the same direction and was in charge of Engineer Pfeiffer plaintiff, and Conductor Carney. This latter train was running to Umatilla under orders received at La Grande. At Pendleton, between 9 and 10 o'clock p. m. of May 22d Conductor Carney received a message from the defendant's dispatcher directing that their train receive engine 533 and tow it to Umatilla. The train in charge of Hampson and King consisted of an engine and caboose. After receiving this order, Pfeiffer's train proceeded west to Pilot Rock Junction and stopped at a point opposite and about 50 or 75 feet from the Hampson engine. Fulton, the brakeman, who was riding on the engine from Pendleton, got out of the cab, and by direction of Pfeiffer went back and cut off the latter's engine from his train, signaling him forward. When his train was cut off, plaintiff discovered that the box of the engine truck was hot and blazing. He ran his engine about 275 or 300 feet west of the switch of the passing track where the ground was suitable, stopped the engine, set the brakes, and stepped down to give the hot box necessary attention. Fulton dropped off at the switch and lined the same for the passing track. Pfeiffer applied a stream of cold water through a hose fastened by a wire to the oil box to cool the same in order that he could make his run. In doing this, it was necessary for him to get down on the ground on one knee in front of the engine cylinders and drive wheels to make the fastenings; his position being immediately above the rail and in the rear of the pilot. A lighted torch which he carried was placed on a step of the pilot. The plaintiff asserts that engine No. 533 was on the side track east of where he was doing this work and in plain view of his engine and torch. Brakeman Fulton, who threw the switch, walked up the passing track to engine 533 and ascertained that it had some steam and could come out onto the main line. Seeing the engine of plaintiff standing on the main line west of the switch and the torch burning, Fulton signaled Hampson to move engine 533 onto the main line through the switch. The plaintiff had no knowledge of this signal to move No. 533 from the side track. As soon as Hampson had cleared the switch on the main line, and when he was about 200 feet from where plaintiff was at work, Fulton signaled him to stop. Hampson failed to obey this signal and conducted his engine forward past the block or danger signal and against the engine of plaintiff with such force that he broke the coupling knuckle and pin and drove plaintiff's engine forward several feet, forcing the cylinder against the plaintiff's back and the wheel over his left arm, throwing him to the ground and injuring him.

C. E. Cochran, of Portland, and T. H. Crawford, of La Grande (A. C. Spencer and W. W. Cotton, both of Portland, and Crawford & Eakin, of La Grande, on the brief), for appellant. R. J. Green and F. S. Ivanhoe, both of La Grande, for respondent.

BEAN, J. (after stating the facts as above).

It is first assigned that the trial court erred in permitting the plaintiff to testify to the contents of a work order sent to him from La Grande, directing that engine 533 be taken from Pilot Rock Junction to Umatilla. The defendant claims that no proper foundation was laid as a basis for secondary evidence. In regard to this, plaintiff asserted that while at Pendelton he received an order concerning what he should do at Pilot Rock Junction; that after he got hurt he left his orders in the engine; and that he had not seen that order since. It was disclosed that a demand was served upon the defendant to produce the orders issued to the plaintiff and his conductor on the date of the accident. All the train orders were furnished by defendant, and plaintiff examined the same. The order in question, being a "work order" and not a "train order," was not contained in the package. A request made to defendant's counsel for a copy of the order elicited the information that the defendant did not have such copy. Whereupon, over the objection and exception of defendant's counsel, plaintiff was permitted to state from memory the contents of the order as follows:

"C. and E. Extra 544 West, Pendleton, Oregon: Engine 533 and crew is dead at Pilot Rock Junction. Pick them up and take to Umatilla. L. D. I."

The controversy in regard to the contents of the order appears to be concerning the information therein that engine 533 was "dead." Section 782, L. O. L., requires the original writing to be produced and proved, except as provided in section 712. We think the evidence shows the question to be embraced within that part of the provisions of section 712, L. O. L., which is as follows:

"There shall be no evidence of the contents of a writing, other than the writing itself, except in the following cases: * * * (2) When the original cannot be produced by the party by whom the evidence is offered, in a reasonable time, with proper diligence, and its absence is not owing to his neglect or default. * * *"

It fairly appeared that the original document could not be procured by the plaintiff with proper diligence, and that the absence thereof was not due to his negligence or default. There was no error in overruling the objection.

It is next contended that the plaintiff violated rule No. 882 of the defendant company, which reads:

"While switching, the engineman and fireman must remain on the engine. Exercise great care in handling engine while yardmen and others are making couplings, and give close attention to signals."

Rule No. 26 of the company directs as follows:

"A blue flag by day and a blue light by night, displayed at one or both ends of an engine, car or train, indicates that workmen are under or about it. When thus protected, it must not be coupled to or moved. Workmen will display the blue signals, and the same workmen are alone authorized to remove them."

Among the rules of the company introduced in evidence are the following:

"Rule 899. Engines must not be left without man in charge, except at designated places, and must not be left standing in such position as to block movements on adjoining tracks. Never allow engine to stand on main track unless properly protected under the rules."

"Rule 901. Exercise caution and good judgment in starting and stopping trains to avoid violent or sudden movements which might cause discomfort or injury to passengers, or damage to property."

The defendant contends that, on account of the violation of Rule 882, the plaintiff was guilty of negligence, as a matter of law, and that the court erred in not so charging the jury.

The evidence of the plaintiff tends to show the following circumstances in addition to those above related: When opposite engine 533 on the passing track, plaintiff was told by Engineer Hampson that his engine was "deader than hell." Plaintiff told Hampson he would "come in and get him." Pfeiffer then directed his brakeman to cut off his engine from the train on the main line, and passed west about 275 or 300 feet beyond the switch of the passing track. While Pfeiffer was working on his engine, as heretofore described, his torch was placed on a step of the pilot on the right side looking west, and the block signal between his engine and the switch displayed a red light. Fulton, the brakeman, went up the passing track to engine 533, and, upon being informed by Hampson that his engine had steam enough to move out upon the main track, signaled him to move out...