Pooschke v. Union Pac. R. Co.

• Decision Date: 26 April 1967
• Parties: Oscar E. POOSCHKE, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellant.
• Court: Oregon Supreme Court

Page 866

426 P.2d 866

246 Or. 633

Oscar E. POOSCHKE, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 1, 1967.

Decided April 26, 1967.

Walter J. Cosgrave, Portland, argued the cause for appellant. With him on the briefs were Maguire, Shields, Kester & Cosgrave, Randall B. Kester and Austin W. Crowe, Jr., Portland.

Carlton R. Reiter, Portland, argued the cause for respondent. With him on the brief were George M. Joseph and Reiter, Day, Anderson & Wall, Portland.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and LUSK, JJ.

DENECKE, Justice.

This is an action for personal injuries brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Plaintiff recovered a verdict for $125,000 upon which judgment was entered, and defendant appeals.

Plaintiff was the operator of a locomotive crane, i.e., a crane erected upon a railroad car which could move under its own power. He was unloading ballast from a gondola car. Smoke came out of the crane machinery. Plaintiff went from his operator's cab to learn what caused the smoke, the moving clutch caught his pants, his leg was drawn into the moving machinery and injured.

I

The case was submitted to the jury upon an amended complaint the allegations of negligence of which were as follows:

'1) It provided plaintiff with a locomotive crane which was mechanically insufficient and in a state of disrepair and which emitted smoke; and, in addition, said locomotive crane was defective in that its moving parts were exposed and unprotected;

'2) Defendant provided plaintiff with a locomotive crane which was in an improper and unsafe condition in that one of the bands thereof overheated, burned and smoked; a part of the machinery with a large cotter pin rotated with the clutch and moving clutch and cotter pin were uncovered and exposed.' (Emphasis added.)

At the close of the evidence the defendant moved to strike those allegations of negligence charging that the crane was in disrepair and smoked and the crane was unsafe in that one of the bands burned and smoked, all upon the ground that there was no evidence to support such allegations. (The allegations moved against are those in italics.) ¹ The defendant conceded that there was evidence to support the remaining portion of the allegation,--that is, that the moving parts, the clutch and cotter pin, were uncovered and exposed.

The crane was powered with a diesel engine which supplied the power for locomotion and the operation of the boom. The engine and the machinery which operate the boom were to the rear of the cab. At the time of the accident the oiler saw some smoke coming out of the area to the rear of the cab in the vicinity of the machinery. The oiler told plaintiff that one of the bands was smoking. The roadmaster heard someone say there was some smoke coming out of the crane, he saw 'heat waves' or 'fumes' and told plaintiff to go back and check it. Plaintiff went back, inspected it, and could see nothing wrong. He testified, however: 'There was something wrong with it (the crane) at the time of the smoke, yes.' On deposition he stated that he 'imagine(d) that something got under a band or something and he heated up or something * * *.'

This is all the evidence to support the questioned allegations of negligence.

Liability being based upon a federal statute, United States Supreme Court decisions are controlling, and lower federal court decisions are more persuasive than they are if only common-law questions are involved.

The statute makes negligence the basis of recovery. In the case of defective machinery the railroad is liable only if it knows or should have known of the defect. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282, 1297 (1949).

The appearance of unusual smoke and the testimony of plaintiff and the oiler would substantiate a finding by the jury that the crane was defective. Under the decisions of the United States Supreme Court and the lower federal courts, proof of the defect also appears to be sufficient evidence to have the jury pass upon the issue of whether the railroad should have known of the defect. It is immaterial whether this result is phrased in terms of 'liability without fault' or of a workmen's compensation statute, as some charge it really is, ² or in terms of permissible inferences that can be drawn by the jury.

In Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946), the court stated:

'It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. * * *' 327 U.S. at 653, 66 S.Ct. at 744.

Two cases are illustrative of the reasoning in federal employer liability cases. In Fassbinder v. Pennsylvania Railroad Company, 322 F.2d 859 (3d Cir. 1963), the plaintiff conductor was injured when he tried to close a coach door which struck because of a defective mechanism known as a 'dog.' The trial court set aside a verdict for plaintiff because it believed there was no evidence that the railroad should have known of the defect. The Court of Appeals reversed, holding that the doctrine of res ipsa loquitur furnished a basis for submitting the issue to the jury. The court stated:

'Here the defendant had exclusive control of the railroad coach and its appurtenant mechanisms; the accident was such as in the ordinary course of things would not have occurred if the defendant had used proper care with respect to the mechanism which precipitated the plaintiff's injury, and as a consequence it afforded reasonable evidence, in the absence of explanation by the defendant, that the accident arose from the defendant's want of care. * * *.' 322 F.2d at 862.

The Sixth Circuit held likewise in Miller v. Cincinnati, New Orleans and Texas Pacific Ry. Co., 317 F.2d 693 (6th Cir.1963). The Plaintiff in that case was injured when a water hose discharged although the trigger which is meant to activate the discharge was not depressed. These facts permitted an inference that the hose nozzle was defective. The court held the inference of a defect also supplied an inference that the railroad should have known of the defect. The court said:

'It is not questioned here but that plaintiff's proofs were, under res ipsa loquitur, sufficient to establish that the hose and its nozzle were defective at the time of plaintiff's injuries. Having gone this far, does the doctrine permit supplying by inference the other essential to defendant's negligence, viz., actual or constructive notice of such defective appliance. We think it does. As stated in Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815, 819, '* * * (R)es ipsa loquitur means that the facts of the occurrence warrant the inference of Negligence * * *.' (Emphasis supplied.) If application of the doctrine permits an inference of Negligence, such inference must necessarily include all the essential elements of negligence, including here an inference that defendant had actual or constructive knowledge of the defective condition of the nozzle.' 317 F.2d at 696.

We hold that under the decisions interpreting the federal statute there was evidence that the crane, particularly the band, was defective and that the railroad should have known of such defect.

The allegations of negligence set forth earlier herein were the result of amendments to conform to the proof made after plaintiff had rested and defendant contends the trial court's permitting such amendments was error. We find the allowance of the amendment within the permissible scope of the trial court's discretion as that discretion is outlined in Morrill v. Rountree, 242 Or. 320, 408 P.2d 932 (1966).

II

The railroad contends the giving of the following instruction was error:

'Ordinarily an employee is not required to make an inspection of equipment furnished to him by his employer. In the absence of knowledge or notice to the contrary, or of circumstances that would cause a reasonably prudent person in like position to the contrary, an employee may assume that ordinary care has been exercised in furnishing reasonably safe appliances.'

Defendant's exception is primarily grounded upon the proposition that the plaintiff, as the person in charge of the crane, was, according to the railroad's rules, under a duty to make an inspection.

The federal act does not have a vice-principal provision as does the Oregon Employers' Liability Act. Galer v. Weyerhaeuser Timber Co., 218 Or. 152, 344 P.2d 544 (1959). A rule under the federal act somewhat akin to this court's interpretation of the vice-principal rule of the Oregon act, was discarded in Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943):

'* * * Aside from the difficulty of distinguishing between contributory negligence and assumption of risk many other problems arose. One of these was the application of the 'primary duty rule' in which...