Stool v. Southern P. Co.

• Decision Date: 09 April 1918
• Citation: 88 Or. 350,172 P. 101
• Parties: STOOL v. SOUTHERN PAC. CO.
• Court: Oregon Supreme Court

172 P. 101

88 Or. 350

STOOL v. SOUTHERN PAC. CO.

Supreme Court of Oregon

April 9, 1918

Department 1.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by Dorothea Stool, administratrix of the estate of Oluf Olson Stool, deceased, against the Southern Pacific Company. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

This is an action brought under the federal Employers' Liability Act by the plaintiff, on behalf of herself as widow and her infant son, to recover damages for the killing of her husband, Oluf Olson Stool, while employed as a section man for the defendant. The deceased had been in the employ of the defendant most of the time for a year previous to the accident which resulted in his death, with the exception of a lay-off on account of some slight ailment for about three weeks just before the accident. He had returned to work the day before he was killed. He resided about two miles from the depot at Turner, and the hour for beginning work on the section was 7 a. m. In order to be ready for work at the prescribed time, it was usual for workmen to assemble at a section or tool house situated on the west side of the railroad track about 800 feet south of the depot at Turner and there await the coming of the foreman and receive their orders for the day. The situation may be briefly described as follows: Turner is a town of approximately 300 to 350 inhabitants. It is situated on the line of the Southern Pacific Railroad about 9 miles south of Salem, and is surrounded by a rather populous farming community. The depot is apparently pretty well toward the north end of the town and in front of it and on the west side are two tracks, the one nearest the depot being the main track, and the one farther west a passing track. The tracks run parallel for 1,000 feet or more to the south, and there is a space of 8 feet in the clear between them. Some 500 feet south of the depot is a house track or switch, which runs northeasterly up to the east side of the depot; 927 feet south of the depot is a filled trestle approximately 100 feet long, and south of this is a raised grade for some distance, not disclosed in the testimony. The trestle is within the city limits of Turner, and while there are streets crossing the track at the usual intervals delineated upon the plat of the town, it may be said that there are only two of them actually in use by the public. The principal one of these two is immediately south of the depot, and is the one used by teams and for general travel; the main portion of the town being apparently upon the east side of the railroad. South of the depot and immediately north of the trestle is a street frequently used by pedestrians, but shown not to be open for the use of vehicles. The evidence introduced by plaintiff tended in a greater or less degree to indicate that upon October 6, 1913 deceased, with others, had been at work along the house track north of the toolhouse before mentioned, and that the tools used were stored in the toolhouse. Whether the men carried their tools to and from the toolhouse or whether they were conveyed to and from the place of work upon a hand car does not appear, though the testimony indicates that there was a hand car kept in the toolhouse.

On the morning of the 7th day of October, 1913, at a time estimated at from 10 minutes to 7 o'clock to about 7 o'clock deceased appeared at the toolhouse, set down his dinner pail and started to walk slowly along the passing track north in the direction of the depot. At a point less than 100 feet from the switch stand of the house track he walked diagonally across from the passing track to the main track, and was walking on the main track when the accident occurred. The evidence tended to show that the locomotive which caused the injury had sounded a whistle about a mile south of the station, and had also sounded a crossing whistle some 600 or 700 feet south of where the deceased was struck. The warning whistle that indicates danger and is different from the station or crossing whistle was not sounded until the train was within from 100 to 150 feet of deceased. The evidence for the plaintiff tended to show that the train was running at a speed of from 30 to 35 miles an hour, while defendant's witnesses estimated the speed at from 20 to 25 miles. The train was a work train consisting of a locomotive and tender, one box car, and a caboose. There was evidence tending to show that the frequent, if not usual, custom at this place was for such trains, as this work train arriving at this hour to run in to the station upon the passing track and wait there for the north-bound passenger train, which at that time was due to leave Turner at nine minutes past 7 o'clock a. m. The deceased was about 48 years of age and possessed of all his faculties.

The foregoing is not a full detail of the evidence, which consumes several hundred pages, but is deemed sufficient for the purposes of this case. There was a trial and verdict and judgment for plaintiff, from which defendant appeals.

Roscoe C. Nelson, of Portland (Ben C. Dey, of Portland, on the brief), for appellant. A. S. Bennett and Francis V. Galloway, both of The Dalles, for respondent.

McBRIDE, C.J. (after stating the facts as above).

Learned counsel for defendant has stated concisely the basic questions which arise in the examination of this case, namely: (1) Was decedent injured while performing duties connected with interstate commerce? and (2) Was defendant guilty of negligence in any particular constituting a proximate cause of the injury? A multitude of minor questions relating to the admission of testimony and the giving or refusing of instructions are discussed in the briefs, and will be considered in their order, but, as those above noted are fundamental and go to the right of plaintiff to recover in any event, they will be first considered.

It is conceded that defendant's road is an interstate road, and that defendant at the time of the injury was engaged in interstate commerce, and it is also conceded that deceased was at the time of the injury in the employ of the defendant as a section hand, whose duty it was to render service to defendant in repairing its road. It is agreed that pursuant to such employment deceased was present at the toolhouse of defendant a few minutes before 7 o'clock in the morning in order to be ready to resume work at precisely 7 o'clock, which was the hour prescribed by defendant. The toolhouse seems to have been the place at which the workmen were accustomed to assemble, and in order to be on hand promptly it was natural that a workman residing at some distance, in decedent's case two miles, from the place of assembly, should endeavor to be there a little ahead of time so as not to delay the work or lose time. Does the fact that the accident occurred while the deceased was waiting for the moment to come when actual labor was to begin deprive his dependents of the benefits of the federal Employers' Liability Act? We think not. It was necessary and convenient both for himself and his employer that he should be there in readiness to resume his labor at 7 o'clock, and that the time devoted to actual work with the pick and shovel should not be partly consumed by traveling to the place where it was to be done. His employer had a right to expect as a part of his contract of labor that he would be on the ground ready to use the tools necessary for the accomplishment of his work when the bell tapped seven. It was a part of his duty in order that he should render efficient service to be upon the ground, and the fact that in his zeal to comply with his duty he was there somewhere from one minute to ten minutes before the time his physical labors were to be required should not be held to deprive his dependents of the benefits of the Employers' Liability Act. We think the case in this respect comes within the spirit of the rule laid down in the following cases, although the circumstances of none of them are in all respects identical with that of the case at bar: Lamphere v. Oregon R. & Nav. Co., 196 F. 336, 116 C. C. A. 156, 47 L. R. A. (N. S.) 1; Horton v. O. W. R. R. Co., 72 Wash. 503, 130 P. 897, 47 L. R. A. (N. S.) 8; St. L., San F. & Texas Ry. Co. v. Seale, 229 U.S. 156, 33 S.Ct. 651, 57 L.Ed. 1129, Ann. Cas. 1914C, 156; Stone-Webster Engineering Corp. v. Collins, 199 F. 581, 118 C. C. A. 55; Baltimore & Ohio R. R. Co. v. Whitacre, 124 Md. 411, 92 A. 1060; North Carolina R. R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159. Holding, as we do, therefore, that the presence of the decedent upon the grounds of the defendant under the circumstances last detailed did not deprive his dependents of the benefits of the Liability Act, we will consider further whether his leaving the immediate vicinity of the toolhouse has such an effect.

This case was tried two years after the happening of the accident, and, if any of the fellow employés of deceased were present near the scene of the accident, they were not called the probabilities are that none were near. The most that can be said in any event is that the place chosen by deceased to wait for his foreman was not the safest, and that he might have chosen a safer place. Why he left the toolhouse and walked down the track is a matter of speculation. He might have gone upon some personal errand, although this seems improbable under the circumstances. He was going in the direction of the place on the road where he had worked the day previous, and the most reasonable theory would seem to be that he expected to resume his labor in that vicinity on the morning of the accident, and return at noon to the toolhouse, where he left his dinner pail, and that,...