Ruping v. Oregon Short Line R. Co.

• Citation: 51 Utah 480,171 P. 145
• Decision Date: 09 February 1918
• Docket Number: 3112
• Court: Utah Supreme Court
• Parties: RUPING v. OREGON SHORT LINE R. CO

171 P. 145

51 Utah 480

RUPING v. OREGON SHORT LINE R. CO

No. 3112

Supreme Court of Utah

February 9, 1918

Appeal from District Court of Salt Lake County, Third District; Hon George F. Goodwin, Judge.

Action by C. W. Ruping against the Oregon Short Line Railroad Company.

Judgment for plaintiff. Defendant appeals.

REVERSED and remanded, and new trial granted.

Geo. H Smith, J. V. Lyle and B. S. Crow for appellant.

Willard Hanson for respondent.

GIDEON J. FRICK, C. J., and McCARTY, CORFMAN and THURMAN, JJ., concur.

OPINION

GIDEON, J.

The plaintiff instituted this action to recover compensation for injuries alleged to have been sustained by the negligence of the defendant on or about July 21, 1916. The negligence alleged is that, while the plaintiff and other workmen of the defendant were engaged in driving spikes on defendant's railroad at or near Nyssa, Ore., one of the employees of said defendant carelessly struck and drove one of the spikes, hitting the same with such force that the head of the spike was knocked off and flew and hit plaintiff in the eye, causing the loss of the eye and otherwise injuring plaintiff. It is further alleged that at the time the plaintiff was engaged in interstate commerce. Defendant in its answer admits the employment of the plaintiff at the time mentioned, and that he was engaged in the work stated, admits that certain injuries were received by plaintiff, but denies the negligence of defendant. As a further defense it alleged that whatever injuries were received were caused by the carelessness and negligence of plaintiff, and that the cause of such injuries was directly contributed to by the negligent acts and omissions of plaintiff, and that they were in no way caused or contributed to by the negligence of defendant; that the injuries and accident causing the same were the result of dangers usually and ordinarily incident to the service and employment in which plaintiff was engaged; that the said dangers were open to plaintiff's observation, and known to and appreciated by him, or could have been known to and appreciated by him by the exercise of ordinary care; that whatever injuries were received were the result of the acts and negligence of a fellow servant of the plaintiff. On the issues thus made, trial was held before the court and a jury, resulting in a verdict for plaintiff. The defendant appeals.

It appears from the record that the plaintiff and one Caccia were repairing defendant's railroad track as section men and were, on the day in question, tightening or driving spikes which held the rails to the ties. Such spikes, at the place where the plaintiff was working, had become loosened, were pulled out, and standing, some one-half and other an inch or less, above the tie. It was the duty of plaintiff and his co-workers to tighten or drive the spikes so that the heads would come in contact with the rails and hold the same in place. Some ten minutes prior to the accident complained of, plaintiff's fellow workman, Gaccia, had so struck a spike that part of the head thereof was knocked off and passed immediately under plaintiff's chin. At that time plaintiff cautioned Caccia to strike the spike a direct blow so that in hitting it he would not strike the spike too hard or in a glancing manner. After having explained to his fellow workman how to drive the spike plaintiff, as stated by him, "kind of watched him there for a few licks, then I started in too. * * * He done it fine." Plaintiff then returned to his work, and was about one-half rail length distant from Caccia when the accident occurred. Plaintiff further testified that at the moment of receiving the blow or instantly thereafter Caccia said, "I did it wrong."

It is admitted on the part of defendant that the plaintiff was engaged in interstate commerce at the time of the injury. This action is therefore prosecuted under the federal Employers' Liability Act.

During the trial an experienced railroad man, one familiar with railroad construction, laying track, etc., was permitted to testify on behalf of the plaintiff as an expert as to the right or proper method to use in driving railroad spikes. At the close of plaintiff's testimony defendant moved the court for a nonsuit, basing that request on the ground that no negligence either of the defendant or its employee had been shown, which motion was overruled by the court.

At the close of ...