Slavens v. Northern Pac. Ry. Co.

• Decision Date: 02 October 1899
• Docket Number: 506.
• Citation: 97 F. 255
• Parties: SLAVENS v. NORTHERN PAC. RY. CO. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

97 F. 255

SLAVENS v. NORTHERN PAC. RY. CO. ^[1]

No. 506.

United States Court of Appeals, Ninth Circuit.

October 2, 1899

In an action against a railroad company to recover for the death of plaintiff's husband, caused by his being swept off defendant's tracks into a river by a landslide, the evidence disclosed that he was one of defendant's section men; that, with another, he had been sent out to look for dangerous places in the track, liable to have been caused by the heavy rains which had fallen; that the landslide which swept him into the river occurred while he, under the direction of the conductor of a delayed train, and pursuant to a rule of the company requiring him to act under such conductor's direction, was removing a previous slide from the track. Plaintiff claimed that there was a hidden danger in the bank. Held, it was no part of the conductor's business to warn plaintiff of the hidden danger, merely because a rule of the company provided that section men should, in case of accident or delay to a train, obey the orders of the conductor, especially where it was no part of the conductor's duty to know about the condition of the bluff, but the care thereof was in part intrusted to decedent.

M. G Munly, Jas. M. Ashton, and W. L. Sachse, for plaintiff in error.

Crowley & Grosscup, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This action was brought in the court below to recover damages alleged to have been sustained by the plaintiff by the death of her husband, Charles Slavens, on December 7, 1896, by reason of the alleged negligence of the defendant company. Deceased Slavens, was a section hand in the employ of the railroad company; performing the duty, at the time of his death, of track walker and night watchman. One Antrim was the foreman of the section of the road on which the accident which caused Slavens' death occurred, and, on the evening of the accident, detailed, from the section men under his charge, Slavens and one Hughes to patrol it. Antrim had then had charge of this section for more than five years, and Slavens and Hughes had worked thereon about four years. The night watchmen were usually sent out in pairs. Hughes and Slavens had frequently been companions in the work and had previously removed slides along different parts of the section. These men were sent out on the road by the foreman in pursuance of general rules of the company, which provide:

'Rule 455. Roadmasters are responsible for the safety of track good condition of roadbed, fences, right of way, and grounds, and neat and tidy appearance of stations, buildings, and surroundings. They will frequently examine bridges, culverts, water stations, and other structures, and promptly report any defects or failure to superintend.' 'Rule 460. Foreman and men in their employ must at all times hold themselves in readiness to aid the passage of trains, and, in case of accident or delay, will obey the orders of the conductors. (See rule 72.)

'Rule 461. Section foremen must pass over and examine their sections daily, and ascertain that the track, slopes, cuts, bridges, switches, etc., are safe, and make necessary repairs. This should be done in the morning.

'Rule 462. In case of extraordinary storms or high water, foremen must be out with their men, day and night, with proper signals, and watch those places most likely to damage, and take every precaution to prevent accident.

'Rule 472. The rounds of road watchmen or track walkers must be so arranged as to pass over their section in advance of passenger trains, when practicable. They will carefully examine the roadway, keeping a sharp lookout for broken rails, observe switches, try locks, and see that they are in proper order; see that cars clear the main tracks; examine buildings and other property, and protect the same from theft, fire, or other damage. Should an obstruction or anything occur that would be liable to endanger trains, the watchmen will at once, after leaving a red signal in the center of the track where obstruction occurs, proceed in the direction of the first expected train, and place torpedoes on the rail, as provided in rule 133. He will then protect the opposite direction in the same way, and then call his foreman, and send word to the nearest telegraph office.'

'Rule 72. Six long blasts repeated at intervals, is notice to trackmen and others that the train needs assistance, and all employes within hearing must repair at once to the engine or train, and render such aid as is in their power.'

Slavens and Hughes were acting under these general rules at the time of the accident, which occurred in the evening of December 7, 1896, about three or four miles south of Castlerock, in the state of Washington, at which point the defendant's road is located between a high bluff and the Cowlitz river. The bank of the road at that place is from 40 to 60 feet high, with a slope of about 45 degrees, and is covered with a heavy growth of brush and undergrowth. On the opposite side of the railroad track, and very near it, is the bank of the river. The river at the time of the accident was very high; it being the season of rainstorms, and it having then been raining for several days. While Slavens and Hughes were walking on the track several miles south of Castlerock, a freight train from the north overtook and passed them. When they arrived they found that the train had been stopped by a slide from the high bank, consisting of soft, mushy ground, brush and stumps. They at once began to remove the obstructions; being assisted in the work by the train crew, under the direction of the conductor. While so engaged, a second slide from the same bank occurred, which carried Slavens and Hughes into the river, resulting in the death of the former.

In her complaint, the plaintiff alleged that through its carelessness and negligence, and without the knowledge of the deceased, the defendant allowed the bank to become insecure and dangerous to its employes, including the deceased, who might be ordered or directed to work upon or adjacent to its track at the point in question; that the defendant ordered the deceased and Hughes to remove the obstructions from the railroad track with all possible speed, and carelessly and negligently failed to notify or warn the deceased or Hughes of the dangers incident to or attendant upon the removal of the obstructions; that it was very dark, and that the deceased and Hughes were unable to see, and did not know, and could not by the exercise of ordinary diligence have known, the true condition of the bank, and were unaware of its insecure and dangerous condition; that it was the duty of the defendant to have employed a larger number of laborers to remove the obstructions, or to have watched the bank while the deceased and Hughes were removing them, and to have warned the deceased of the insure and dangerous condition of the bank, but that the defendant wholly disregarded its duty in that behalf. The answer of the defendant denied all the allegations of negligence on its part, and, as an affirmative defense, averred that the deceased and Hughes were at the time of the accident, and for a long time prior thereto had been, in the employ of the defendant as section men and laborers, and that, as such, it was their duty to go over and along the track of the defendant at the place named in the complaint, and other places, for the purpose of inspecting and examining the road, to ascertain if any obstructions were upon the track, and to remove any found thereon; that the deceased and Hughes were fellow servants in such common employment, and that the deceased was familiar with the track and roadbed of the defendant at and near the place where the accident occurred, and for a long distance on each side of that place, and had frequently passed over and along the track in such employment; that Slavens knew of the manner in which the railroad was constructed, and the location and situation of all of its banks, and of the bluffs adjacent thereto, and that he could and did inspect the same, and that all danger of slides from the bank upon the railroad track were well known to him; that at the time of the accident there were severe storms of rain, and that Slavens knew that at such times there was danger of slides from the bank, and that he was employed to ascertain and discover such slides, in the event of their occurring, and to remove the same; that the slides in question were occasioned by the great quantity of rain which had previously fallen, and the condition of the earth, and that Slavens well knew these conditions, and, as part of his employment, voluntarily assumed the examination of the track and roadbed, and voluntarily assumed the work of removing such slides, and, in connection with his fellow servant, Hughes, did undertake to remove one of the slides mentioned; that the falling of the bank was the result of an accident, and did not occur through any fault or neglect on defendant's part in the construction of its road, or in any other way, and that all dangers arising from the slide, or other condition of the bank or bluff, were open to the observation of Slavens, and were known to him; that he was familiar, and had been for years, with the locality, and with all the dangers which could or might arise by reason of the falling of the banks, or otherwise; and that he assumed all risk incident thereto by accepting the employment of the defendant and continuing to remain therein. The trial resulted in a verdict for the defendant, and the cause is brought here by the plaintiff by writ of error.

There was evidence to the effect that about 17 years prior to the accident a ditch was constructed on and along the...