Tucker v. Northern P. Terminal Co.

• Decision Date: 07 April 1902
• Citation: 68 P. 426,41 Or. 82
• Parties: TUCKER v. NORTHERN PAC. TERMINAL CO. [1]
• Court: Oregon Supreme Court

68 P. 426

41 Or. 82

TUCKER v. NORTHERN PAC. TERMINAL CO. ^[1]

Supreme Court of Oregon

April 7, 1902

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr. Judge.

Action by Jane Tucker, administratrix of James A. Tucker, deceased against the Northern Pacific Terminal Company. Plaintiff was nonsuited, and she appeals. Affirmed.

This is an action by Jane Tucker, as administratrix of the estate of James A. Tucker, deceased, against the Northern Pacific Terminal Company, a corporation, to recover damages for a personal injury sustained by her intestate, causing his death. The plaintiff alleges, in substance, that the defendant is in possession of a railroad terminal yard in Portland, Or., and engaged, among other things, in repairing freight cars, readjusting their loads, and in making up trains; that on July 10, 1899, it received from the Southern Pacific Company a freight car in a damaged condition, loaded with iron rails, which had shifted, so that their ends extended over the end of the car from one to three feet; that the company repaired the car but did not rearrange its load and four days later, knowing the condition of the car and its load, and that any attempt to couple it to another car would expose a switchman to unnecessary danger, carelessly ordered James A. Tucker, a car coupler and switchman in its employ to make such coupling; that, not knowing, and unable to ascertain, the distance which the rails extended, unconscious of the danger to which he was exposed, and in pursuance of the command, he undertook to make the coupling, and while thus engaged, and in the exercise of due care, his head was caught between the projecting rail and an iron guard upon the rear end of the approaching car, and so crushed that he died in a few minutes; that the injury was caused by the negligence of the defendant, without any fault or want of due care, skill, prudence, or caution on the part of the deceased. The answer after denying the material allegations of the complaint alleges, in effect, among other things, that it was the business of the defendant to receive cars from railroads terminating in its yard to be made up into trains; that cars loaded with iron rails are frequently received by it, and inspected by persons appointed for that purpose by the railroad companies whose lines of railway connect with its yard, over whose acts the defendant has no control, whose duty it is to inspect the loads upon cars so received by the defendant, and, if found to be in an unsafe or dangerous condition, the inspector should refuse to accept such car, until the load thereon was properly adjusted by the railroad company delivering it; that, while James A. Tucker was employed as a switchman and car coupler, cars loaded with iron rails were frequently received, and in most cases the ends of the rails extended more or less past the end of the car, and such projection is not an unsafe method of loading, if the extended rails do not come in contact with the next car in the train, which fact Tucker well knew, and he was in the habit of coupling cars with loads in substantially the same condition as the car in question; that such cars can be safely coupled by stooping below the projecting rails, which fact he well knew, and that neither he nor any other car coupler was required to make such coupling, if in his judgment he could not do so with safety. That some of the rails on this car extended over the end, but none more than 24 inches, and in such condition the car was not dangerous, and was accepted by the inspector for the Northern Pacific Railway Company, over whose lines it was to be transported; that when a car approaching the car so loaded had reached a point near enough to be coupled to it, Tucker stooped to make the coupling, but carelessly and negligently failed to stoop low enough to permit the rails to pass over his head, and when the cars came together he sustained the injury causing his death, which is the same injury and death mentioned in the complaint; that the injury was caused solely by the negligence and want of attention on the part of Tucker, and without any fault or negligence of the defendant. The averments of new matter in the answer having been put in issue by the reply, the plaintiff introduced her testimony and rested, whereupon the court granted a judgment of nonsuit, and she appeals.

E.B. Watson, for appellant.

Rufus Malory, for respondent.

MOORE J. (after stating the facts).

The question to be considered is whether the testimony introduced at the trial, aided by presumptions based thereon and deducible inferences, was sufficient to require the submission of the cause to the jury. An examination of the bill of exceptions shows that Tucker, at the time of his death, was 23 years old, and for more than a year prior thereto had been employed by the defendant in its yard as a switchman and car coupler; that the defendant owns in Portland, Or., a terminal yard, consisting of a series of railway and side tracks, with which are connected lines of railway, operated respectively by the Northern Pacific Railway Company, the Oregon Railway & Navigation Company, and the Southern Pacific Company, and is engaged in receiving into its yard from said railway companies cars which are uncoupled, and when they are returned or hauled over either of the other lines of railway are made up into trains by the defendant's servants; that on July 10, 1899, the defendant received from the Southern Pacific Company a flat car, 30 feet in length, loaded with iron rails of the same length, which car was to be shipped over the line of the Northern Pacific Railway Company. This car, being out of order when so received, was repaired by the defendant, and set out on one of its side tracks, to be made up into a train for its destination. A flat car, with an automatic coupler was "kicked" down, to be coupled to the loaded car, which had a common drawhead. No witness was called who saw Tucker when he attempted to make the coupling, so that the manner of his injury is to be inferred from the circumstances. The side track at the scene of the accident runs north and south, at the west side of which his body was found, with the head crushed. In the patent drawhead a coupling link was found fastened, the other end of which was entered in the common drawhead, the pin in the latter having fallen over, and one of the iron rails, extending over the end of the car 29 inches, came within about 3 or 4 inches of an iron cleat surrounding a stake pocket on the end of the car "kicked" down, and blood was discovered upon the end of the projecting rail, and upon this clamp, thus tending to show that the near approach of these blood-marked objects probably caused his death. The testimony also shows that railroad rails shipped on cars usually shift in transit, so that they extend over the end of the car 18 inches or more, and that the only safe way in which a car in this condition can be coupled is by the switchman stooping, so that the rails may pass over his head. The intestate having been killed at about 7 o'clock p.m., before sunset, and at a point where his view of the cars to be coupled was unobstructed, the question is, assuming from a contemplation of the foregoing testimony, which is a fair résumé of that given at the trial, that the defendant was guilty of negligence in not readjusting the rails, was Tucker also guilty of negligence contributing to his injury, and, if so, was the evidence of his want of care so conclusive that the court could, as a matter of law, take the question from the consideration of the jury? The rule is settled in this state that it is unnecessary for a plaintiff, in a complaint in an action to recover damages for a personal injury, to allege or affirmatively show at the trial that he was free from negligence; but if it should appear from his own proof, offered for the purpose of establishing the defendant's negligence, that he was also guilty of negligence, without which the injury complained of would not have occurred, such proof will defeat a recovery. Grant v. Baker, 12 Or. 329, 7 P. 318; Scott v. Navigation Co., 14 Or. 211, 13 P. 98; Johnston v. Railway Co., 23 Or. 99, 31 P. 283. The defense of contributory negligence is made upon the theory that, notwithstanding the defendant has been guilty of negligence, the person injured has also been guilty thereof, and, as the law will not measure the degrees of wrong where each party is guilty, the plaintiff cannot recover. The answer denies that the defendant was guilty of any negligence, and avers that the intestate's death was caused by his carelessness and want of attention. It is impossible to say from an inspection of the testimony, or from a consideration of the circumstances attending Tucker's death, whether he had been following the flat car that was "kicked" down, or was standing at the loaded car waiting to make the coupling at the instant of contact. If he occupied the latter position, he would undoubtedly have had sufficient time, and, the sun not having set, ample opportunity, to inspect the car near which he was standing, and, having had experience in coupling cars on which the rails had slipped in this manner, he must have known that he could successfully perform the duty required of him only by stooping, so that the rails might pass over his head when he effected the coupling, and, if he failed to bend forward low enough, the fault was his, and necessarily defeats a recovery. It might be inferred, from the fact that the coupling link was found fastened in the automatic coupler, but not pinned in the common drawhead, that Tucker had inserted the link in the approaching car which he was accompanying, and in the hurry incident to the performance of his dangerous...