Waller v. N.P. Ter. Co. of Oregon

• Decision Date: 26 February 1946
• Citation: 166 P.2d 488,178 Or. 274
• Parties: WALLER <I>v.</I> NORTHERN PACIFIC TERMINAL COMPANY OF OREGON
• Court: Oregon Supreme Court

178 Or. 274

166 P.2d 488

WALLERv.

NORTHERN PACIFIC TERMINAL COMPANY OF OREGON

Supreme Court of Oregon.

Argued January 10, 1946.

Reversed February 26, 1946.

Rehearing denied March 27, 1946.

Appeal and error — Evidence — Negligence

1. On defendant's appeal from judgment for plaintiff, testimony must be considered in light most favorable to plaintiff in determining whether there was substantial evidence of negligence proximately causing plaintiff's injury, and consideration must be given to evidence adverse to the plaintiff's contention where it is wholly undisputed and relates to matters of fact as distinguished from mere inferences.

Evidence — Inferences — Proof of facts

2. Where plaintiff's case is based upon inferences only, the case must fail upon proof of undisputed facts inconsistent with such inferences.

Master and servant — Negligence

3. Under Federal Employers' Liability Act, a defendant employer can be held liable only for negligence proximately causing injury to employee, and liability cannot be predicated on mere speculation.

Courts — Federal courts

4. The rights which the Federal Employers' Liability Act creates are federal rights protected by federal rather than by local rules of law, and the rights and obligations of employer and employee depend upon such Act and upon applicable principles of common law as interpreted by the federal courts.

Master and servant — Common law

5. The federal interpretation of employer's duty under Federal Employers' Liability Act to furnish a safe place in which to work is derived from and is consistent with the general common law.

Master and servant — Safe place to work

6. A railroad is not the insurer of the safety of its employees and is not under any obligation to keep the premises absolutely safe.

Negligence — Actionable negligence

7. The failure to guard against a mere possibility of accident is not actionable negligence.

Negligence — Substantial evidence

8. The plaintiff must present more than a mere scintilla of

evidence of negligence, and is required to present substantial evidence.

Master and servant — Negligence — Substantial evidence

9. If employee suing for personal injuries under Federal Employers' Liability Act fails to present substantial evidence that the injury was proximately caused by the employer's negligence, the trial court is authorized to grant a directed verdict for the employer.

Courts — Federal Employers' Liability Act

10. In state court actions on causes arising under Federal Employers' Liability Act, the state appellate court is authorized to determine from the evidence whether a verdict for plaintiff is supported by substantial evidence, and if not so supported, may reverse and direct judgment for defendant, subject to review of its conclusions by the United States Supreme Court.

Master and servant — Negligence

11. In action under Federal Employers' Liability Act by switching crew foreman against carrier operating a railroad yard for injuries sustained when foreman slipped and fell while boarding moving train during switching operation, res ipsa loquitur doctrine was not applicable, and the mere fact that accident occurred raised no inference or presumption that the carrier was negligent or that the carrier's action or inaction was the cause of the accident, where the place was used by others for whom the carrier was not responsible.

Master and servant — Safe place to work

12. The duty of employer under Federal Employers' Liability Act to employee in respect to objects on the premises where the employee works is the same as the duty owed by landowner to persons employed or invited thereon, or the duty of a proprietor to invited guests.

Negligence — Liability

13. Where plaintiff slips upon an object on the premises of the defendant, plaintiff must, in order to establish liability, show that defendant or its agent put the dangerous object there, or that they knew or by reasonable diligence could have known that it was there and failed to exercise diligence to remove it.

Master and servant — Negligence

14. In action under Federal Employers' Liability Act by switching crew foreman against carrier operating railroad yard for injuries sustained when foreman allegedly stepped on stick and fell while boarding moving train during switching operation, carrier could not be charged with constructive notice of stick in absence of any evidence as to how long any stick had been on the ground.

Master and servant — Negligence — Proof

15. In action under Federal Employers' Liability Act by switching crew foreman against carrier operating railroad yard for injuries sustained when foreman allegedly stepped on stick and fell while boarding moving train during switching operation, foreman must prove that alleged condition of the yard had existed for a sufficient period of time to charge the carrier with constructive notice thereof or that the system of inspection throughout the yard was insufficient.

Master and servant — Negligence — Evidence

16. In action under Federal Employers' Liability Act by switching crew foreman against carrier operating railroad yard for injuries sustained when foreman allegedly stepped on stick and fell while boarding moving train during switching operation, evidence was insufficient to show that carrier was negligent in respect to condition of yard.

                  See 35 Am. Jur. 823
                  32 C.J.S., Evidence, § 1038
                

Before BELT, Chief Justice, and ROSSMAN, BAILEY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

MARTIN W. HAWKINS, Judge.

Action by B.T. Waller against the Northern Pacific Terminal Company of Oregon, for damages under the Federal Employers' Liability Act on account of personal injuries suffered by plaintiff, an employee of the defendant Northern Pacific Terminal Company of Oregon. From a verdict in favor of the plaintiff, the defendant appeals.

REVERSED. REHEARING DENIED.

Randall B. Kester, of Portland (Roy F. Shields and Maguire, Shields & Morrison, all of Portland, on the brief), for appellant.

Frank C. Hanley, of Portland, for respondent.

BRAND, J.

The complaint alleges that the defendant, an Oregon corporation, owns and operates, as an interstate carrier, a railroad yard in the City of Portland, Oregon, which yard has a number of tracks parallel to each other extending in a general northerly and southerly direction upon which the defendant switches and moves cars; "that the ground area between said tracks is in use by defendant's employees as a footpath in boarding and alighting from moving cars in the performance of their duties and when said ground area is free from depressions, holes, mud, water and debris it affords a reasonably safe footing for defendant's said employes;" that the plaintiff was in the employment of the defendant as an engine foreman on the 14th day of December, 1942; that on the night of the 14th shortly after midnight and during darkness, the defendant was engaged in carrying on switching operations in said yard with the use of a steam locomotive engine; that defendant had upon one of its tracks a number of box cars which were to be switched off of said track and moved; that plaintiff was on the ground area adjacent to the track and alongside of said cars; that upon signal given by the fieldman and by plaintiff said cars were thereupon moved by the locomotive; and that, as said cars were moved, the plaintiff in the performance of his duties attempted to board the same when they were moving at a rate of speed of about seven miles per hour, and after he had taken hold of the handhold on the end of the box car and attempted to step into the stirrup thereof "while running alongside said string of cars on said ground area, through the negligence of the defendant hereinafter stated, he was caused to lose his footing upon said ground area and by reason thereof was thrown down upon the track between the cars" and permanently injured.

The specifications of alleged negligence are as follows: (a) That defendant negligently "maintained the aforesaid footpath and ground area along the tracks where plaintiff was working in a slick, slippery and muddy condition and maintained and permitted certain quantities of water to accumulate in depressions in said ground area and * * * negligently caused and permitted certain debris and wooden sticks to be strung along the ground area which plaintiff was required to use" in boarding the cars. It is alleged that such dangerous and defective condition was known to the defendant, or could have been known in the exercise of reasonable care, but was unknown to the plaintiff, and that the defendant "thereby failed and neglected to provide plaintiff with reasonably safe footing and a reasonably safe place to work, and that plaintiff when boarding said cars as aforesaid was caused to strike said sticks and debris and slip upon said slick, slippery and muddy ground area and become injured." (Italics ours.) (b) That defendant negligently failed to warn plaintiff of said dangerous condition of said yards. (c) That defendant negligently failed "to keep its said premises where the accident to plaintiff happened in a clean condition, in violation of its rule reading as follows: `Rule 709. Railroad premises must be kept in neat, clean and orderly condition.'"

By its answer the defendant admits its ownership of the railroad yards, the maintenance of the tracks, and switching of cars; "admits the ground area between certain of said tracks is in use by defendants' employees as a footpath in boarding and alighting from moving cars in the performance of their duties, and that such ground in normal condition affords a reasonably safe footing for the defendant's said employees."

It is admitted that the plaintiff was defendant's employee and was on December 14th engaged in switching operations, that it was then dark, and that the plaintiff sustained injuries. The allegations of negligence are denied. The defendant...