Schuppenies v. Oregon Short Line Railroad Co.

• Decision Date: 06 March 1924
• Citation: 38 Idaho 672,225 P. 501
• Parties: LIZZIE SCHUPPENIES, Administratrix of the Estate of AUGUST SCHUPPENIES, Deceased, for the Use and Benefit of LIZZIE SCHUPPENIES, Surviving Widow of AUGUST SCHUPPENIES, Deceased, and ROBERT A. SCHUPPENIES and CARL A. SCHUPPENIES, Surviving Minor Children of AUGUST SCHUPPENIES, Deceased, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

225 P. 501

38 Idaho 672

LIZZIE SCHUPPENIES, Administratrix of the Estate of AUGUST SCHUPPENIES, Deceased, for the Use and Benefit of LIZZIE SCHUPPENIES, Surviving Widow of AUGUST SCHUPPENIES, Deceased, and ROBERT A. SCHUPPENIES and CARL A. SCHUPPENIES, Surviving Minor Children of AUGUST SCHUPPENIES, Deceased, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

Supreme Court of Idaho

March 6, 1924

RAILROADS-FEDERAL EMPLOYERS' LIABILITY ACT-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-ASSUMPTION OF RISK - EMPLOYEE - SECTION-HAND-UNUSUAL PLACE TO WORK-INCREASED RISKS-FAILURE TO WARN EMPLOYEES-INTERROGATORIES-QUESTIONS OF LAW AND FACT.

1. Where the jury, in answer to special interrogatories submitted to it by the court, found that the engine bell was ringing at the time of the accident but that the whistle was not sounded within hearing distance of the deceased, and sufficient competent evidence appears to justify such findings, this court is bound thereby.

2. The jury having found that the train which struck the deceased was traveling at not less than eight nor more than fifteen miles per hour at the time of the accident, in answer to special interrogatories submitted to it, taking into consideration the fact that the track east of the point of collision was straight; that the view was unobstructed; that such rate of speed was not in violation of any law or ordinance; that it was not in excess of the rate of speed necessary to the proper transaction of the business of the railroad company, and that it was the customary rate of speed at which trains were operated when approaching the depot held that such rate of speed was not excessive.

3. Where an engineer, from his seat in the cab of the engine was in a position to have seen the deceased in time to warn him of his impending danger, and by the exercise of ordinary care could have seen him but admitted that he did not see him, whether he was guilty of negligence in failing to observe the deceased was a question properly submitted to the jury.

4. Where the fireman of the engine that struck deceased saw him near the tracks on which the engine was running, about 800 feet before he was struck but failed to notify the engineer of his presence or to attempt to warn the deceased, held that the question of negligence on the part of the fireman was properly submitted to the jury.

5. Whether a section employee, taken from his usual place of work on a branch line and put to work in railroad yards on the main line where he had never worked before, being heavily clad and wearing a cap with ear-flaps, where in the immediate vicinity two passenger trains and a freight train were moving around, the engine bells and whistles of the engines drawing such trains and the switching of freight-cars making considerable noise, and the noise of another approaching train being deadened by a heavy fall of snow, was guilty of contributory negligence, held to be a question of fact for the jury.

6. It is to be presumed that if the jury found the deceased guilty of contributory negligence, such fact was taken into consideration by it in arriving at the amount of damages awarded by its verdict.

7. Contributory negligence is not a defense to an action based upon the federal Employers' Liability Act and operates only in mitigation of damages.

8. The federal Employers' Liability Act, being a humane statute should receive a liberal interpretation.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. H. F. Ensign, Judge.

Action to recover from railroad company for wrongful death. Judgment for plaintiff. Affirmed.

Judgment of the lower court affirmed. Costs awarded to respondent. Petition for rehearing denied.

George H. Smith, H. B. Thompson and John O. Moran, for Appellant.

It is not negligent as to a section laborer to operate a train at any rate of speed that the company's business may require. (Land v. St. Louis & S. F. R. Co., 95 Kan. 441, 148 P. 612; Hoffard v. Illinois Cent. R. Co., 138 Iowa 543, 110 N.W. 446, 16 L. R. A., N. S., 797; Illinois Cent. R. Co. v. Willis, 123 Ky. 633, 97 S.W. 21; 2d Dec. Digest, "Master and Servant," sec. 137.)

A railroad company is not guilty of negligence in failing to give warning of the approach of its trains in a railroad yard. (Randall v. Baltimore & O. R. Co., 109 U.S. 478, 3 S.Ct. 322, 27 L.Ed. 1003; Southern R. R. Co. v. Gray, 241 U.S. 333, 36 S.Ct. 558, 60 L.Ed. 1030; Ciebattone v. Chicago Great West. Ry. Co., 146 Minn. 362, 178 N.W. 890.)

Those in charge of the operation of an approaching train have the right to assume that upon signals being given, section laborers and other persons along the track will hear and observe the signals, and that they will not go or remain in a perilous position when a slight effort would carry them to a place of safety, and consequently that they will step to a place of safety before the train reaches them. (Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758; Neil v. Idaho & W. N. R. Co., 22 Idaho 74, 125 P. 331, and authorities cited; 3 Elliott on Railroads, 2d ed., sec. 1791; Sierzchula v. Chicago & Alton R. Co., 209 Ill.App. 15; Williams v. Southern P. Co., 173 Cal. 525, 160 P. 660; Southern R. Co. v. Gray, 241 U.S. 333, 36 S.Ct. 558, 60 L.Ed. 1030.)

"In the absence of special circumstances, an employee working on the tracks of a railroad must look out for trains and take care of his own safety." (Carter v. St. Louis & S. F. R. Co. (Mo. App.), 249 S.W. 124; Sears v. Texas & N. O. R. Co. (Mo. App.), 247 S.W. 602; Kirkland v. Bixby, 282 Mo. 462, 222 S.W. 462; Newkirk v. Pryor (Mo. App.), 183 S.W. 682.)

"Ordinarily trainmen do not owe any duty of keeping a lookout, to give signals of approach or to reduce the speed of trains in anticipation that employees engaged in repairing the tracks may be found upon the tracks, and as to such employees owe the duty of exercising ordinary care to prevent injuring them only when they are discovered in situation of danger." ( Cincinnati, N. O. & T. P. Ry. Co. v. Jones' Admr., 171 Ky. 11, 186 S.W. 897; Bell's Admx. v. Chesapeake & O. Ry. Co., 161 Ky. 466, 170 S.W. 1180; affd., 245 U.S. 629, 38 S.Ct. 62, 62 L.Ed. 519; Hines v. Hopkins, 194 Ky. 441, 239 S.W. 792; Hines v. Pershin (Okl.), 215 P. 599; Labatt on Master and Servant, 2d ed., sec. 1248; Curtis v. Erie R. Co., 267 Pa. 227, 109 A. 871; Riccio v. New York, N.H. & H. R. Co., 189 Mass. 358, 75 N.E. 704; Dyerson v. Union P. R. Co., 74 Kan. 528, 87 P. 680, 7 L. R. A., N. S., 132.)

"An engineer is not required to anticipate that sectionmen will remain upon the track in the very face of known danger from approaching trains, and if they do it is at their own risk, although no signals are given." (Ginnochio v. Illinois C. R. Co., 155 Mo.App. 163, 134 S.W. 129; Nivert v. Wabash Ry. Co., 232 Mo. 626, 135 S.W. 33; Waymire v. Atchison T. & S. F. Ry. Co., 107 Kan. 90, 190 P. 588; Director-General v. Hubbard, 132 Va. 193, 111 S.E. 446; Louisville & N. Ry. Co. v. Hyatt, 191 Ky. 85, 229 S.W. 101; Rigley v. Wabash Ry. Co. (Mo.), 204 S.W. 737; Louisville & N. R. Co. v. Seeley, 180 Ky. 308, 202 S.W. 638; Southern Ry. Co. v. Blackwell, 20 Ga.App. 630, 93 S.E. 321; Ingham v. New York O. & W. R. Co., 182 A.D. 112, 169 N.Y.S. 346.)

"Sectionmen upon railroads assume the risk of trains of all sorts, 'regular' or 'wild,' running over the tracks at all times, at such rates of speed as are attainable, without notice or warning, except such as results incidentally." (Ives v. Wisconsin Cent. R. Co., 128 Wis. 357, 107 N.W. 452; Pennsylvania R. Co. v. Wachter, 60 Md. 395; Sullivan v. Fitchburg etc. R. Co., 161 Mass. 125, 36 N.E. 751.)

Bothwell & Chapman, for Respondent.

Appellant is guilty of negligence in that at the time and place in question it operated its train No. 23 at a rate of speed in excess of the usual and customary rate of speed of that train. (Burrow v. Idaho-Wash. N. R. Co., 24 Idaho 652, 135 P. 838; Kinzell v. Chicago, M. & St. P. R. Co., 33 Idaho 1, 190 P. 255; Hardwick v. Wabash R. Co. (Mo.), 168 S.W. 328; Rockhold v. Chicago, R.I. & P. Ry. Co., 97 Kan. 715, 156 P. 775; Olthoff v. Great N. R. Co., 135 Minn. 72, 160 N.W. 206; Tober v. Pere Marquette R. Co., 210 Mich. 129, 177 N.W. 385.)

Under the federal Employers' Liability Act the judgment cannot be reversed or a recovery barred on account of the defense of contributory negligence; the question of contributory negligence can only go to the diminution of damages. ( Chicago G. W. R. Co. v. McCormick, 200 F. 375, 118 C. C. A. 527, 47 L. R. A., N. S., 18; Colosardo v. Central R. Co., 180 F. 832, 192 F. 901; Carter v. Kansas City So. R. Co. (Tex. Civ.), 155 S.W. 638; Charleston & W. C. R. Co. v. Brown, 113 Ga.App. 744, 79 S.E. 932; Horton v. Seaboard Airline R. Co., 157 N.C. 146, 72 S.E. 958; Neil v. Idaho & W. N. R. Co., 22 Idaho 74, 125 P. 331; Norfolk & W. R. Co. v. Ernest, 229 U.S. 114, Ann. Cas. 1914C, 172, 33 S.Ct. 654, 57 L.Ed. 1096; White v. Central Vermont R. Co., 87 Vt. 330, 89 A. 618; Chadwick v. Oregon W. R. & N. Co., 74 Ore. 19, 144 P. 1165; New York C. & St. L. R. Co. v. Niebel, 214 F. 952, 131 C. C. A. 248; Louisville & N. R. Co. v. Winkler, 162 Ky. 843, 173 S.W. 151; Chicago, R.I. & P. R. Co. v. Brown, 229 U.S. 317, 33 S.Ct. 840, 57 L.Ed. 1204; St. Louis I. M. & S. R. Co. v. Sharp, 115 Ark. 308, 171 S.W. 95; Ramaswamy v. Hammond Lumber Co., 78 Ore. 407, 152 P. 223; Greenwell v. Chicago M. & St. P. R. Co. (Mo.), 224 S.W. 404; Crecelius v. Chicago, M. & St. P. R. Co., 284 Mo. 26, 223 S.W. 413; Jetter v. St. Joe Terminal R. Co. (Mo.), 193 S.W. 956; Sinderson v. Payne, 151 Minn. 142, 186 N.W. 237.)

Deceased did not assume the risk of injury by being struck by a train which was not operated in its usual and customary...