Walters v. Dock Commission of City of Portland

• Decision Date: 24 April 1928
• Citation: 266 P. 634,126 Or. 487
• Parties: WALTERS ET AL. v. DOCK COMMISSION OF CITY OF PORTLAND.
• Court: Oregon Supreme Court

266 P. 634

126 Or. 487

WALTERS ET AL. v. DOCK COMMISSION OF CITY OF PORTLAND.

Supreme Court of Oregon

April 24, 1928

Department 1.

Appeal from Circuit Court, Multnomah County; C. H. McColloch, Judge.

Action by Ruth W. Walters and another against the Dock Commission of the City of Portland. Judgment for plaintiffs, and defendant appeals. Affirmed.

See also, 245 P. 1117.

This is an action under the Employers' Liability Act (Or. L. §§ 6785-6791) brought to recover damages for the death of one Charles Walters. Plaintiff alleges that the act of the defendant caused the death.

The facts are that the defendant maintains in the city of Portland, extensive dock and granary facilities. Immediately adjacent to these structures, and standing upon land leased from the defendant, is the plant of the Terminal Milling Company. There is a roadway upon the property of the defendant for the convenience of those desiring access to, or egress from, its various facilities. Branching off of this main road is a spur road approximately 250 feet in length. Its farther terminus is at the flour mill of the Terminal Milling Company. This spur road is the only means of communication between the plant of the Terminal Milling Company and the main roadway which we have just mentioned. About 50 feet east of this branch road, the defendant has a structure referred to in the evidence as a track shed. Two lines of railroad tracks run through it. The building is of sufficient length that it can afford shelter to three cars upon each track while they are being unloaded of their grain. As soon as the contents of a car are removed, it is ejected from this structure by a cable which communicates the motive power to the car from an electrical motor in the track shed. Due to the shortness of the cable, the ejected car generally comes to rest when it reaches the aforementioned branch road. It is possible to move the empty car beyond this point by attaching the cable to other cars, and bringing them into contact with the empty cars, thus the empty cars are forced beyond the spur road. Nevertheless the branch road is frequently blocked by empty cars placed there in the manner we have described. A method often employed to move these cars from the roadway, so as to afford access to the flour mill was to use a pinch bar, and thus impart slight movement to the cars; this motion was retained by the men applying their physical force to the rear of the car.

October 7, 1924, upon the hour involved in this case, this spur road was blocked with one or more empty cars. At that time a delivery truck sought to approach the mill to deliver a quantity of sacks weighing a ton or more. These sacks apparently had been purchased by the Terminal Milling Company from the manufacturer. Access to the premises was barred by these empty cars. The driver of a truck walked to the flour mill, and found there one Oscar O. Norgard, an employee of the mill company, and informed the latter of the driver's predicament. Norgard called the deceased, and told him to get a pinch bar, so that they could move the cars away and permit the delivery of the bags at the premises of the milling company. The point blocked by the car was approximately 210 feet from the mill. The deceased obtained a pinch bar in the warehouse of the mill company, and together with Norgard, the driver of the truck, and the latter's helper, proceeded to the car and placed it in motion. At about the same time the workmen in the defendant's employ in the track shed without making any observations ahead, applied their cable to some cars upon the same track upon which the deceased and the other men were working. When these cars were put into motion one of them caught the deceased between its coupler and the coupler of the empty car to which the deceased was then applying his shoulder, and thereby crushed out his life.

Plaintiffs obtained a judgment based upon the jury's verdict defendant appeals. The principal error assigned is: The defendant contends that at the moment in question Walters was not acting within the scope of his employment, and was therefore not in an employment within the terms of the Employers' Liability Act. Other assignments of error appurtenant to this one, and relied upon by the defendant, we shall state and dispose of as we proceed.

Frank J. Lonergan and J. B. Ofner, both of Portland (W. P. La Roche and Lonergan & Wagner, all of Portland, on the briefs), for appellant.

Arthur I. Moulton, of Portland (Lord & Moulton, of Portland, on the briefs), for respondents.

ROSSMAN, J. (after stating the facts as above).

When we have once determined correctly whether Walters was acting within the scope of his employment when he addressed himself to the task of shoving the empty car beyond the road crossing, the assignments of error will be substantially solved. It is essential to the plaintiff's case that it must appear that Walters was acting within the scope of his employment, because the terms of the Employers' Liability Act accept into their embrace only employees whose duties require their presence at the scene of the accident at the time of the casualty. The plaintiffs allege that, upon the occasion of the fatal moment, Walters was in the employ of the mill company, and that he was discharging duties within the scope of his employment. Let us see what the testimony discloses in regard to the nature of Walters' duties. Norgard, as a witness, testified as follows:

"Q. What was the nature of his work? A. He was sweeping, I think, and then feeding in flour."

However, this was not his only duty, for apparently the arrangement was such that one employee had a right to call upon another for assistance. Thus Norgard testified:

"Q. Had you any supervision over Walters' work? A. No; only when I was told any time I needed any help or assistance around the mill, to either ask him or Mr. Howe to help me, or some of the other men; whenever we needed help there we were asked to help each other.

"Q. So, for the purpose, you had a right to call on him for any service? A. Yes, sir. * * *

"Q. He didn't work under you? A. Well, whenever we needed any assistance at that mill, we have always been told to ask somebody to give us a hand.

"Q. If you needed any help for the work you were doing in the mill, you could ask any one that wasn't busy? A. They was supposed to help; that's the way it was, all around.

"Q. Sort of a mutual proposition around the mill--one helped the other? A. That's the orders we got from the foreman all the time--if we needed any help to ask for it and get it."

The witness testified that his (Norgard's) duties were "cleaning and washing wheat and blending," and "elevating it over into the mill." The foregoing testimony given by Norgard was not contradicted. While in reply to a leading question he testified that his duties were performed inside of the mill, nevertheless other portions of the evidence, which we shall refer to, are sufficient to support a conclusion that removing cars from the crossing was within his duties. The same witness described the events that immediately preceded the accident as follows:

"Q. Will you tell the jury what took place immediately before he was hurt? A. Well, we was over at the mill at the time.

"Q. Over at the Terminal Mill? A. Over at the mill before we went over to shove the cars.

"Q. What were you doing there? A. I came out of the mill, and Walters was standing outside there, and we was standing there talking a few minutes, and a truck driver come past the end of the car coming over there, and I says, 'There's a load of sacks over there, and I guess he is coming over to see if we can help him'; so the truck driver come over and he says: 'We got some sacks for the mill,' and I says, 'Well, we'll go over and help him, Charley,'--we called him Charley,--and I says, 'You get a pinch bar, and we'll go over and help him.' " As appears in the statement of fact preceding this decision, Walters obtained the pinch bar from the warehouse; he (Norgard) and the two others then placed the car in motion; but at about the same time a car which the defendant was moving collided with Walters and caused his death. Defendant now contends that, when Walters and Norgard undertook to shove their car out of the way, they stepped outside of the course of their employment, and either undertook a task for the transfer company, which was bringing the sacks to the mill, or were engaged in a frolic of their own.

Let us now ascertain from the evidence whether Walters, as an employee of the milling company, was engaged in performing a duty in its behalf and within the scope of his employment when he placed the empty car in motion. We shall briefly review the evidence, but, before doing so, let us remind ourselves of a principle of law applicable to the inquiry. We shall state this principle by using the words found in 4 Labatt's Master and Servant (2d Ed.) § 1566:

"The scope of a servant's duties in relation to the rule illustrated by the cases cited in the last section is defined by what he was employed to perform, and by what, with the knowledge and approval of his employer, he actually did perform, rather than by the mere verbal designation of his position. The question whether the injured person was acting in the course of his employment is for the jury, where the evidence is conflicting, or where a difference of opinion may reasonably be entertained with regard to the proper inference to be drawn from the testimony. Otherwise that question is decided as one of law by the court."

"Any evidence which has a bearing upon the actual scope of the servant's duties is admissible. One of the most important circumstances to be considered is whether the servant had ever, upon any other occasion,

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