Smith v. Southern P. Co.

• Decision Date: 07 February 1911
• Citation: 58 Or. 22,113 P. 41
• Parties: SMITH v. SOUTHERN PACIFIC CO.
• Court: Oregon Supreme Court

113 P. 41

58 Or. 22

SMITH v. SOUTHERN PACIFIC CO.

Supreme Court of Oregon

February 7, 1911

Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.

Action by Lewis N. Smith against the Southern Pacific Company. Judgment for defendant, and plaintiff appeals. Reversed.

This is an action to recover damages for an alleged injury caused by defendant's negligence. Upon the trial the court directed a verdict in favor of defendant, and entered a judgment thereon, from which plaintiff appeals.

Plaintiff in his complaint, alleged that defendant, by its engineer carelessly and negligently ran its switch engine against plaintiff, as he was at work on the track, and without fault or negligence on the part of plaintiff; that the engineer saw that the collision was imminent, and could have avoided the same, but carelessly and negligently failed to stop the locomotive, and thereby avoid the collision. In its answer defendant denied the allegations of negligence set forth in the complaint, and affirmatively pleaded the defenses of contributory negligence and assumption of risk. The affirmative matter of the answer was put in issue by plaintiff's reply. At the time of the accident, January 19, 1906, the plaintiff, Lewis N. Smith, had been employed about a month by the defendant company as a section hand being engaged under the direction of the section foreman in taking the nuts off an angle plate on the rail near where it connected with, and about a foot from, the track on which the engine came, in the railroad yards, at the crossing of Mosher street in Roseburg, Or. It was snowing at the time very hard. Plaintiff, in substance, testified: "I had just got the wrench, and was taking the nuts off an angle plate on the rail, and there was one bolt that turned, and I got down on one knee and put the other foot up against the bolt to hold it from turning in the angle bar. I was stooping over, facing towards the south, with my wrench on the outside, and I heard a noise of some kind, and just raised up and I was struck was all the warning I had. The first warning I heard was the time I started to raise up. I did not have time to get up. Q. What length of time transpired between the time you heard that warning and the time that you were struck? A. Just as quick as I could move, because I was afraid all the time I was there that I was going to get hurt. The rest of the men some six, were north of me, between me and the engine, and I thought if an engine came and they could get out of the way I could. After they got me up and I kind of came to, I said I wanted to see what it was, and, as I turned around, the switch engine was standing at the water tank, 200 feet from where I was struck." He further testified that he was injured, and on cross-examination: "I did not see the engine coming down the track. There was no obstruction to my view unless it was the other men working around there, taking out ties. Q. Do you mean to say that those men there would prevent you from seeing this? A. They would unless I straightened up. Yes; clear up. Q. Did you hear the whistle blow at all? A. I heard some noise as I rose up. Q. What was the noise like? A. I can't tell you. I did not have time to distinguish. Q. Did you hear anybody call? A. No, sir. Q. Did you look up the track to see whether the engine was coming or not? A. Well, I had not been to work there but just a little bit. I had just got the wrench. Q. How long had you been in the stooping position? A. Not over five minutes. Q. During that time did you look up the track at all to see if the engine was coming? A. Yes, sir. Q. Did you see the engine? A. No, sir; not from that direction. Q. What time was it that you looked up with reference to the time that you were struck? A. It was not but just a short time before. Q. If you had looked before the engine came down the track, you could have seen it, could you not? A. I suppose I could. Q. How far was the nearest man to you? A. Four or five feet, I suppose. Q. Where were the rest of them? A. They were all at work there on the track north of me, *** as I remember they were working on the cross-street, taking the ties out of the cross-street. Q. Did you see any flag out of any sort? A. There was no flag on that track. There was a flag out to protect the trains on the track that we were taking up, not on the other tracks. Q. Not on the track that the engine was on? A. No, sir. Q. If you did not know whether there was a flag out on this other track, why did not you look out and see the engine coming? A. Because the other men were working there, and I thought that if an engine came and they could get out of the way I could. Q. Were you expecting them to call to you? A. No, sir; I was watching the men. Q. You were undertaking to look out for yourself? A. I was undertaking to look out for myself the same as they were. Q. You did not hear the engine except at the moment of the collision? A. No, sir. Q. Were you listening for it? A. I was listening for it. I was on guard all the time."

F.L. Beard, engineer, in detailing the circumstances of the accident, testified, in substance, that he saw the plaintiff on the track some 90 or 100 feet distant, it might have been a little further, before he reached him; that he could have stopped the engine, or closed down so as to have avoided the accident, had he thought it necessary or reasonable to suppose the man would not get out of the way. "As the facts developed later, had I known then at the start I could have stopped." And on cross-examination: "I could see the sectionmen from the time I left opposite the passenger depot. I was on the main track, going south. *** The bell was rung continuously and had been since we left from where we were at the lower portion of the yard, and, on arrival within 90 or 100 feet or such matter of where the men were working, I sounded a succession of short blasts of the whistle. *** The speed of the engine was about six miles an hour. *** I had the engine gradually under control, by that I mean gradually steadying down so as to take the benefit of the doubt in case I had to stop. I noticed the man working as though he was real busy and I began to slow the engine, gradually slowing down from a point 100 or 90 feet away from him, and I sounded the whistle continuously, and, when I reached a point within 30 or 50 feet away, it became apparent to me that he was not going to get out of the way, and I immediately applied the air and emergency. Q. If he had been standing in an erect position, would you not have hit him? A. I do not think it would. I could not see that Smith gave any heed when whistle sounded. I applied service brakes about 100 feet from him. Whistled six to ten times. Sounded whistle about 50 or 60 feet before I applied the emergency. He had his back toward us, looking quartering away from the engine. Q. Did you hear the angle bar strike the engine? A. I was too busy engaged getting the engine stopped. I made a test with the same engine once, going at a speed of about 7 miles per hour, and it took 62 feet to stop it. At the rate of 10 miles per hour it would take about 80 feet to stop."

H.O. Heidenrich, another section hand, testified: That he was working about 10 or 15 feet from plaintiff at the time of the accident. That he did not see the engine strike him. "Q. Did you see the engine when it was coming at that time? A. I see everybody run and I run too, so I could get out of the way. Q. How fast was the engine going? A. Oh, I don't know, about 20 miles or 30 miles an hour. Q. How close was the engine to you before you saw it? A. Oh, about 10 or 15 feet. Q. Did you hear the whistle blow? A. No, sir. Q. The whistle might have been blown. Were you scared? A. Yes; I was scared." And on cross-examination: "Q. Well, did you see Smith at all? A. No; I see two men take him away. Q. After the accident, you saw two men taking Smith away? Q. Yes, sir. Q. You did not see him before the accident? A. No; I look out for myself. Q. Were there any men south of you? A. Yes; pretty near half jumped that way, and the other half the other way. Q. Now, when did you first see the engine? A. I see everybody run and then I run. I have no time to look around. Q. Your notice was called by the men getting away? A. Yes; I hear some of them. Q. Did you hear anybody yell? A. Yes; they say get out of the way, somebody. I don't know who it was. Q. Did you hear the bell of the engine ringing? A. No; I did not hear that. Q. Or the whistle? A. No, sir Q. You do not remember about having heard that? A. No, sir. Q. You did not have very much time to see the engine, how fast it was going, did you? A. No. Yes, yes. Q. You think it was going how fast? A. About 20 miles an hour. Q. Where did it stop? A. 60 or 100 feet. Q. Did he put on the brakes? A. Yes. Q. And stopped within 50 or 100 feet from where you were? A. Yes, sir." Redirect examination: "Q. You don't know exactly how far it stopped, do you? A. No. Q. It might have run on a couple of hundred feet as far as you know? A. No; I can't tell exactly."

Defendant's seven witnesses all estimated the speed of the engine, at the time the emergency was applied, at about six miles per hour.

H Faulkner, witness for defendant, testified that he was about 60 feet away from Smith; that Smith was kneeling down, taking off a pair of angle bars, stooping down with his back to the engine, kind of sideways. He did not know about the bell, but the whistle was sounding; that Smith raised up and the bumper beam of the switch engine caught him on the shoulder and knocked him sidewise, straight out from the engine; that his report shows engine stopped 60 feet beyond where Smith was struck. "When I first saw the engine, 90 feet from where Smith was, it was coming about 6 miles per hour. When it...