Russell v. Oregon Short Line R. Co.

• Decision Date: 06 May 1907
• Docket Number: 1,385.
• Citation: 155 F. 22
• Parties: RUSSELL v. OREGON SHORT LINE R. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

155 F. 22

RUSSELL v. OREGON SHORT LINE R. CO.

No. 1,385.

United States Court of Appeals, Ninth Circuit.

May 6, 1907

Will R King, for plaintiff in error.

F. S Dietrich, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.

HUNT District Judge.

The plaintiff, Frances B. Russell, as administratrix of the estate of P. J. Russell, deceased, brought this action against the Oregon Short Line Railroad Company, defendant, to recover a judgment for damages for the death of her husband which occurred on the evening of December 3, 1903. Defendant denied negligence, set up contributory negligence, and that deceased was engaged on his own private business when he was killed. The evidence showed substantially these facts: The deceased, P. J. Russell, was and had been for seven years a bridge foreman of the defendant railroad company. About the time of his death, the bridge gang of which he was foreman was engaged in work upon a bridge that was about two miles or more east of the town of Ontario, a place of 1,100 or 1,200 people. The bridge gang lived in what are called 'outfit cars,' which were moved from place to place as convenience required. These cars were kept on a side track at the stockyards, half a mile east of the town of Ontario, The deceased and his family lived in one of the outfit cars. Russell had been working in that vicinity about a month. Two miles west of Ontario, at a place spoken of as 'Washoe Siding,' there was a spur. On the afternoon of December 3, 1903, the deceased did not go to work where the bridge gang was employed; but at noon of that day, at the outfit cars, he told one of the men that he was going to Washoe, and requested him (Stroup by name) to come over after him after the work of the day was finished. The custom of the bridge gang was to stop work at 6 o'clock, and then to eat supper. Prior to the date of the accident Russell had tendered his resignation to the defendant company, but was not to leave the service of the road for a few days. Russell had bought a ranch near the Washoe Spur, and his intention was to give up railroading, and to live upon his farm. Mrs Russell's father and family also lived at Washoe next to Mr. Russell's place, about a quarter of a mile from the spur. About 3 o'clock on the afternoon of December 3d, the deceased took his wife and children on a railroad velocipede from the outfit cars to the Washoe Spur. Upon their arrival at the spur, the velocipede was left near the track, but was afterwards taken back by a railroad employe who had been at Russell's place that day. After leaving the spur, the Russells went over to the place owned by the deceased, and stayed there about half an hour. Mr. and Mrs. Russell were getting ready to move in a few days to the ranch. They spent the afternoon, principally, at Mrs. Russell's father's house. Mrs. Russell testified that while they were on the way to Washoe, or just before they started, her husband told her that he was going down there 'to see about getting men to work, and to see about the spur that was there, and to see if there was room to set cars in. ' She said, too, that her husband was outside of her father's house part of the afternoon, and that he had told her he was going to see about employing a man named Burgess. The Burgess people lived on the same side of the track that her father did, near the track, between her father's house and the town of Ontario, about a quarter of a mile nearer to town than her father's place. It would have taken her husband about 10 minutes to walk from her father's place over to the Burgess house. Russell took supper with his father-in-law and family about 5 o'clock, and remained with the family from supper time until he left. Mrs. Russell says that she intended to return with Mr. Russell, but her children went to sleep, and she did not go back, and that they remained so long after supper 'simply visiting' and 'in social intercourse' with her people. At about 7 o'clock three men from the bridge gang voluntarily went down to Washoe upon an ordinary hand car for the purpose of getting Mr. Russell. They reached Mrs. Russell's father's house about 7:30. They did not start back until about an hour or an hour and one-half after they reached Mrs. Russell's father's place, so that it was about half past 8 when Russell and the three men started eastward toward Ontario, where the outfit cars were. At a point approximately 3,800 feet west from the Ontario depot, an engine, drawing the general manager's special train of three passenger cars, came upon the hand car and the men. The speed of the hand car at the time was between five and eight miles an hour; it was making considerable noise. Russell was helping to pump the car. The speed of the special train is estimated by different witnesses for plaintiff at between 40 and 70 miles an hour. Some of the men on the hand car say they were looking ahead, but did not observe the special train until it was from 200 to 400 yards away, but could see the lights of the town of Ontario before they saw the train. There was no light of any kind on the hand car. There was then no headlight shining on the engine. Russell first called, 'Stop. there is a train.' The men stopped the hand car as quickly as possible, and endeavored to remove it from the track before the engine reached them. They lifted only one end of the hand car off the rail when the engine struck the other end, and threw Russell, who was trying to lift the hand car off, so injuring him that he died immediately. No one else was struck or hurt. The railroad track about this point was nearly straight for a distance of about two miles. The train had passed through the town of Ontario without a headlight, and without stopping, but it had whistled about a mile east of the town, and one of the men on the hand car says he heard a whistle just before the accident. Upon this point the witnesses do not wholly agree. The headlight on the engine was burning at Arcadia, the station east of Ontario six or seven miles, and the evidence tended to show that it was burning dimly at the first stopping place west of Ontario, three miles distant. It appeared that at that time the railroad company was gradually equipping its engines with electric headlights, and that the men found more or less difficulty in keeping the headlights burning constantly. Upon the night in question the fireman went out on the engine to fix the headlight, which had gone out, about the time the train approached the bridge east of Ontario. If it had been burning properly when the train approached Ontario, it could have been seen two miles away. There is a serious conflict in the testimony as to whether the engine had its 'blizzard lights,' which are oil lights on the front end of the engine, burning that night when the train went through Ontario. Plaintiff's witnesses say they did not see them; defendant's witnesses say they were burning and in good order, and could have been seen. The rules of the company forbade the use of hand cars, except in the line of duty. Hand cars at night were also required to display red lights to the rear. It appeared from plaintiff's evidence that it was the duty of men engaged in the bridge gang, and they were instructed, to be on guard all the time for extra trains, and that this was particularly true of men engaged in work upon bridges, as it was necessary for them to obstruct the track at various places in driving piles and otherwise repairing or constructing bridges. Russell's superior testified for defendant that it was not in the line of the bridge foreman's duty to observe spurs with a view to setting cars in, and that Russell had no business on behalf of the company at any place, except where the bridge gang was at work, but that he had authority to employ and discharge men. At the conclusion of the evidence introduced by both sides, the court granted the defendant's motion to direct a verdict, based upon the grounds, among others, that the deceased was guilty of contributory negligence, and that when he was killed he was a trespasser upon the railroad tracks. Judgment was entered for the defendant, and appeal was duly perfected.

The principal assignment of error by the plaintiff is that the Circuit Court erred in not submitting the question of negligence to the jury. Counsel devotes a considerable part of his brief and argument to the contention that the case presented a question of fact for the jury to determine, from all the circumstances, whether or not the defendant company had provided suitable appliances for its train upon the night of the accident, and whether proper caution was used in running its special train through Ontario without a headlight, whether or not 'marker' lights were on the engine, and whether defendant was or was not negligent in not having oil lamps at Ontario, so that, in case the electric lights went out, an oil lamp could be substituted. It is unnecessary to discuss the rule dwelt upon by counsel that ordinarily questions of negligence are for consideration by the jury, guided by proper instructions by the court as to the principles of law by which the jury should be controlled. That rule is so firmly established that it may be regarded as elementary. But it is also thoroughly well settled that a case may be withdrawn from the jury altogether and a verdict directed for plaintiff or defendant, as may be proper, where there is no dispute in the evidence, or where it is so conclusive in its character that the court, in the exercise of its sound judicial discretion, would be obliged to set aside a verdict rendered in opposition to such evidence. Delaware, etc., Railroad v. Converse, 139 U.S. 472 11 Sup.Ct. 569, 35 L.Ed. 213. In Schofield v. Chicago & St. Paul...