Rush v. Oregon Power Co.

• Decision Date: 28 April 1908
• Citation: Rush v. Oregon Power Co., 51 Or. 519, 95 P. 193 (Or. 1908)
• Parties: RUSH v. OREGON POWER CO.
• Court: Oregon Supreme Court

95 P. 193

51 Or. 519

RUSH v. OREGON POWER CO.

Supreme Court of Oregon

April 28, 1908

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Action by Mark Rush against the Oregon Power Company.From a judgment of nonsuit, plaintiff appeals.Reversed and remanded.

This is a suit by Mark Rush against the Oregon Power Company, a corporation, to recover damages for a personal injury suffered by the plaintiff while engaged as a brakeman in the employ of the defendant.The negligence stated in the complaint is the failure of the defendant to inspect two freight cars, the brakes of which, it is alleged, were out of order and so defective that they would not hold when the cars were loaded, and also the heedless putting into a train without examination, other cars on which were defective couplings with short and inadequate chain connections, which imperfections were known to the defendant, or, by the exercise of reasonable care on its part, might have been known by it, but to the plaintiff were unknown, who, in attempting to uncouple the latter cars January 29, 1906, lost his right arm, particularly setting forth the facts and circumstances whereby the injury was sustained.The answer denies the negligence alleged, and avers that the hurt of which the plaintiff complains resulted from his own negligence and that of a fellow workman, and also that the plaintiff assumed the risk.The reply put in issue the allegations of new matter in the answer, and, the cause coming on for trial, a nonsuit was given on motion of the defendant when the plaintiff had introduced his evidence and rested.From this judgment, he appeals.

Joel M Long, for appellant.

Ralph W. Wilbur, for respondent.

MOORE J.(after stating the facts as above).

It is contended by plaintiff's counsel that an error was committed in granting the nonsuit.The consideration of this question necessitates an examination of the testimony relating to the place, cause, and circumstances attending the injury.It appears that the defendant owns a standard-gauge railroad which is built from Portland to other places, and operates on its lines by electricity cars for transporting passengers and freight, and maintains in such city a power house, to which extends from its main line a spur, and that other side tracks form at that place a yard where motors and cars are inspected.The plaintiff is an experienced brakeman, and at the time of his injury was employed as such by the defendant.The head brakeman, or conductor, as he is sometimes called, who was employed to switch cars in the Portland yard, did not report for duty January 29, 1906, whereupon the yardmaster ordered the plaintiff to perform that service, and directed him to go with a motor to the power house and remove therefrom some empty cars, and to place therein two cars loaded with cordwood.At the place indicated the main track of the railroad extends nearly south, and a side track branches to the west.The loaded cars were "kicked" back on the main line south of the switch, where they were left in charge of a person who set the brakes to hold them in position.The plaintiff, having removed from the power house five empty flat cars forming a train which was coupled at the north end to the motor, was passing over the switch that connects the main line and the side track, when the loaded cars notwithstanding the friction of their brakes, rolled north and the corner of the forward car struck the third empty car from the motor at a point about four feet south of its coupling, causing the latter car to be slightly lifted from the track on the side where the collision occurred.The plaintiff, desiring to clear the track for a passenger car that was about due, went to the west side of the second car from the motor to uncouple that car, intending to move the disengaged part of the train to the north, so as to place a pole against it and the corner of the loaded car, which he expected to force back on the main line, and hold with the brakes until he could recouple the train, move it out of the way, and then return with the motor for the loaded cars; but he was unable to uncouple this car from the west side.He then attempted to separate the train from the opposite side, and went, for that purpose, to the corner of the empty car north of the point where it had been struck.This car had a Tower automatic coupler with a knuckle, which when closed, was held in place by a pawl to which was attached a short iron rod with an eye at each end, connected at the top with a chain that extended upward and was fastened to an iron arm.This arm reached back to the center of the car's end, to which it was attached, and at this point was bent at a right angle horizontally, so as to extend along the framework of the car to a point near the corner, where it was again bent and turned downward, making a lever, the lifting of which raised the pawl and released the knuckle, thus avoiding the necessity of a person going between the cars to couple or uncouple them.The Tower coupler has a spring in the draw-head that keeps the pawl in position, and prevents it from being raised until the cars are forced together, releasing the tension, when the lever can be raised and the knuckle opened.The plaintiff, standing on the east side of the track, grasped with his right hand the lever at the corner of the third car, and gave with his left hand a signal to force the train slowly to the south, so as to slacken the strain, and the motorman, obeying the token, pushed the cars in that direction, but the plaintiff, being unable to raise the lever or to release his hand therefrom, was pulled the intervening distance of about four feet until his body struck the corner of the loaded car, behind which his arm was drawn and...