Prink v. Longview, P. & N. Ry. Co.

• Decision Date: 08 August 1929
• Docket Number: 21706.
• Citation: 279 P. 1115,153 Wash. 300
• Court: Washington Supreme Court
• Parties: PRINK v. LONGVIEW, P. & N. RY. CO.

279 P. 1115

153 Wash. 300

PRINK v. LONGVIEW, P. & N. RY. CO.

No. 21706.

Supreme Court of Washington

August 8, 1929

Department 2.

Appeal from Superior Court, Cowlitz County; Homer Kirby, Judge.

Action by W. H. Prink against the Longview, Portland & Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. H. Paul, of Longview, and Ellis & Evans, of Tacoma, for appellant.

Gus L Thacker, of Chehalis, and Mallery & Hallin, of Kelso, for respondent.

PARKER J.

The plaintiff, Prink, seeks recovery of damages for personal injuries suffered by him, alleged as the result of the negligence of his employer, the defendant railway company, while obeying a command of its foreman under whom he was working. Trial upon the merits in the superior court for Cowlitz county sitting with a jury, resulted in a verdict and judgment in favor of Prink, from which the railway company has appealed to this court. The two main questions with reference to which it is necessary to state the facts of the case in some detail are: First, as to whether Prink's employment was so intimately related to interstate commerce as to make his claim for damages determinable by a civil action in the superior court against the railway company or by resort to rights given to employees under our Workmen's Compensation Act; and, second, as to whether or not he assumed the risk of his act culminating in his injury.

The jury were warranted in believing, and manifestly did believe from the evidence, the main controlling facts to be, in substance, as follows: The railway company, at the time Prink was injured and for some three years prior thereto, was engaged in interstate commerce; that is, it had completed and was during that period operating trains carrying interstate as well as intrastate shipments over its main line track in the immediate neighborhood of where Prink was employed at the time he was injured. The company's main line track, running northerly near the town of Castle Rock, in Cowlitz county, was located and constructed across a bend of the Cowlitz river, twice crossing the main channel of the river over trestles, within a distance of one mile; the river there flowing westerly, southerly, and easterly. A very short distance east of the main line track there was, at the time of its construction, a channel through which a small portion of the river flowed, especially when the water was high, creating what was regarded and referred to in the neighborhood as an island in the bend of the main channel though this so-called island was seemingly not always surrounded by water. The original plan of the company, in connection with the construction of its main line track, was to convert this easterly minor channel of the river into the main channel, to the end that ultimately the two trestles supporting the main line crossings would be entirely freed from the hazard incident to such crossings. To that end the company commenced the deepening and widening of the easterly channel, carrying on that work, we shall assume, practically continuously for some three years up to the time Prink was injured. The material so excavated from that channel was used in building and strengthening a dike along its western bank and east of the main line track. The material was also used in extending the dike across the main channel of the river looking to the diverting of all the water through the easterly channel. The evidence does not, however, render it plain as to just how far in this latter respect the work had progressed. The material so excavated was also used, to some extent, as ballast along the already constructed main line track. It was being so used, at least to a considerable extent, very near the time that Prink was injured, though probably not on that very day.

The excavation of the easterly channel was carried on by a steam shovel and a so-called drag line; oil being used for steam power fuel. A switch track was constructed east of the main track, running northerly along the dike for a distance of nearly a half a mile from a point just north of the southerly main channel crossing of the main line track. The steam shovel, and also a work train for hauling the material away, such as was used elsewhere, ran upon this switch. The fuel oil was brought there in an oil tank railway car and placed upon a short spur off the main switch a short distance north of where it left the main line track. It was not practical to place this oil tank car accessible to the steam shovel so that oil could be transferred directly from it to the steam shovel, so Prink was employed as a teamster to haul the oil with a team of horses and a wagon oil tank from the oil tank car to the steam shovel, wherever it might be at work along the dike and switch. The road conditions for such hauling were changing from time to time by reason of the deposit of material from the channel excavation along the dike and switch, though some effort was made in the operation of the steam shovel to keep the surface as smooth as possible. Aside from this effort, Prink was required, in his employment, to further make his own road for reaching the steam shovel. This it was practical for him to do only along and very close to the end of the ties of the switch; that is, so close that he could not drive past any railway engine or cars while standing on the switch. He had his road so located in suitable and safe condition for hauling oil to the steam shovel, and, up until the time he was injured, he always freely drove along his road in safety, near the end of the ties of the switch to the steam shovel, for delivering oil there when no engine or cars were on the switch. He was given to understand by the foreman that he would have the right of way there over work trains coming onto the switch; it being very necessary that the oil fuel supply be not interfered with.

Toward the close of the working hours of the day he was injured, Prink had filled his wagon tank from the oil tank car and delivered his load to the steam shovel. While there, a work train, consisting of an engine, tender and a few cars, backed in upon the switch so that it was not possible for him to drive out along his prepared road while the work train was upon the switch. The surface immediately outside his road opposite the train was very rough and hazardous to drive over, though apparently not impossible to drive over. It was not only very rough, but somewhat higher than the road. He asked the trainmen to move the train out while he could drive out. This would have taken but a few minutes. They refused to move the train. He then appealed to the foreman directly in charge of the work. As to what was then said and done, he testified in part as follows:

'I had orders to follow up the steam shovel and refill my wagon with surplus to have on hand and let them take the oil car to Longview and get it filled up before Monday morning, and I had to fill up the steam shovel and drive back, and there was no train in there at all. They had pulled out. I drove in when they were out and before I got unloaded they backed in and stopped right on my roadway, and I wanted them to pull up and the brakeman said he was not going to pull up. I turned to the foreman and said, 'Have them pull the train off.' He said to 'get it all in, unload the car [meaning the tank car] so they can get that car to Longview tonight.' He said, 'There is lots of room in there,' and to 'go on.' I thought he knew more about it than I did.'

While Prink and the foreman possessed the same degree of knowledge about the condition of the road and of the ground immediately outside of it opposite the switch track, Prink, manifestly regarding this direction of the foreman as peremptory and emergent, because of the necessity of taking the oil tank away at the end of the work day, which was then very near, attempted to drive past the train. In doing so, he drove partially off his road, and, exercising care as best he could under the circumstances, the wagon tipped over and fell against the tender of the engine. In the fall he was thrown from his seat on the wagon, and received the injuries for which he here seeks, and was awarded recovery.

While there seems to be no serious dispute but that the railway company had been engaged in interstate as well as intrastate commerce in the operation of its main line track since its original construction, it is contended for the company that the work in which Prink...