Wood v. Southern Pac. Co.

Citation216 Or. 61,337 P.2d 779
PartiesCharles D. WOOD, Respondent, v. SOUTHERN PACIFIC COMPANY, a corporation, Appellant.
Decision Date08 April 1959
CourtSupreme Court of Oregon

Charles S. Crookham and David W. Harper, Portland, for respondent. With them on the brief were Vergeer & Samuels, Portland.

John Gordon Gearin, Portland, for appellant. On the brief were Koerner, Young, McColloch & Dezendorf, Joseph Larkin and Albert H. Ferris, Portland.

Before McALLISTER, C. J., and WARNER, SLOAN and MILLARD, JJ.

MILLARD, Justice pro tem.

This is an appeal by the defendant railroad company from a judgment entered for the plaintiff in the sum of $10,000, in an action brought by the plaintiff, employee of defendant, based upon alleged negligence under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.

Viewed in the light most favorable to plaintiff, it appears that on the 13th day of July, 1954, plaintiff was and had been employed for some time as a car inspector by the defendant; that his duties as a car inspector included checking trains for defects, and at the time complained of, was checking outbound trains; that his particular duties were 'to recheck the train and lift the journal lids, adjust the packing, and if we see anything we are supposed to check for defects too. The box lids are left open for the oilers to oil them, and they put the lids down. We lift them up.' Plaintiff, in answer to a question as to whether it was his job to inspect the journal box lids on outbound trains, stated, 'No. If you find a defect in a journal box lid with one inspection, such as one is missing, you can put one on if you have time to do it. And if you find one that will not open--the only way you know is to open it, to try and open it before you can see that it is inoperative. You have to start and pull it. If it don't come with one pull you know that it don't operate very good. Some come with two pulls, jerks you see.' Plaintiff further testified that if the journal lid was inoperative 'you are supposed to put a card on it for repairs to repair it, report it.' Each car is inspected twice while in the yard; once when it comes in, and once when it goes out. The only way to inspect a journal box lid is to lift it up by means of a simple tool called a 'packing iron' which is equipped with a hook at the end for that purpose. If the lid lifts up easily it is in good working condition, but if not, it is defective. A non-defective lid may be raised by a jerk of the packing iron held in one hand, normally. If a lid is stuck, a bar or jack is provided to force the lid up.

While attempting to open the journal box lid of a car owned by the Union Pacific Railway Company, but a part of the defendant's outbound train, plaintiff was injured when his packing iron disengaged from the lid, causing him to be struck in the stomach by the free iron, overblanced, and to tip over a rock and fall backward. Plaintiff first attempted to lift the lid in the normal manner by a single jerk, using one hand, but failed to get the lid open. At this point plaintiff was aware that the lid was 'stuck.' He next attempted to lift the lid by a jerk, using both hands, when the iron became disengaged. If a lid does not open with one pull, an inspector knows that it does not operate 'very good.'

Plaintiff testified that there was no tag for repairs on the car and no apparent defect in the journal box lid.

After the cars of an inbound train are inspected for defects, including defects in journal boxes, and if defective-tagged, the cars are then moved in the yard for the purpose of readying them to go outbound. Before departing they are reinspected by a second inspector.

There is nothing in the testimony to indicate in just what particular the journal lid was defective other than the difficulty of opening. There is no direct evidence that an inspection was not made as the car came into the yard or that the defect, if any, existed at the time. When the packing iron disengaged it struck the plaintiff in the stomach, and it appeared plaintiff became overbalanced and hit his foot on a rock on the pathway and fell over and struck a larger rock in the pathway. The rocks were part of material brought in and used for track ballast by defendant. The larger rocks were pushed aside and some were left in the pathway, having been there for some time, and made the pathway narrower.

The court removed from the consideration of the jury certain specifications of negligence alleged in the complaint but did submit two specifications thereof. One of these charged the defendant with negligence 'in operating said equipment at a time when the journal box lid placed on the said journal box on which the plaintiff was required to work, was unsafe, because it was stuck and would not operate or open.' The other specification submitted charged the defendant with negligence 'in that the defendant failed to remove from the premises certain boulders which were located alongside the car in which the plaintiff was required to work.'

Defendant by his answer denied the allegation of negligence, proximate cause and injury and affirmatively alleged contributory negligence on the part of plaintiff. After both sides had rested their case, defendant moved for a directed verdict, stating it would be in the form of an instruction to the jury to find for the defendant because of failure of plaintiff to prove negligence as a proximate cause of his injury.

As a basis for his motion for a directed verdict, defendant says that plaintiff has failed to prove negligence attributable to the railroad company because mere proof that a piece of equipment is defective is not sufficient. Defendant further contends no duty is owed to inspect on the part of the company.

'It is settled by the decisions of the federal supreme court that, under the Federal Employers' Liability Act, there is no liability upon the part of a railroad carrier in the absence of negligence for an injury sustained by an employee in the course of his employment.

* * *

* * *

'* * * the defendant is not an insurer nor a guarantor of the safety of an employee while engaged in the performance of his work, * * *.' McPherson v. Oregon Trunk Railway, 165 Or. 1, 6, 8, 102 P.2d 726, 728, and cases there cited.

See also Brady v. Southern R. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497, 45 U.S.C.A. § 51.

Mere proof that a piece of equipment is defective is not sufficient to establish that the defendant was negligent in failing to find the defect and repair it. Waller v. Northern Pacific Terminal Co. of Oregon, 178 Or. 274, 166 P.2d 488; Campbell v. Southern Pacific Co., 120 Or. 122, 250 P. 622; Spencer v. Atchison, T. & S. F. Ry. Co., 92 Cal.App.2d 490, 207 P.2d 126; Apache Ry. Co. v. Shumway, 62 Ariz. 359, 158 P.2d 142, 159 A.L.R. 857; Armstrong v. Missouri K-T-R Co. of Texas, Tex.Civ.App., 1950, 233 S.W.2d 942; Edwards v. Baltimore & O. R. Co., 7 Cir., 1942, 131 F.2d 366; Kent v. Erie R. Co., 228 N.Y. 94, 126 N.E. 646; St. Louis, I. M. & S. R. Co. v. Ingram, 124 Ark. 298, 187 S.W. 452, affirmed 1917, 244 U.S. 647, 37 S.Ct. 741, 61 L.Ed. 1370.

In the case of Edwards v. Baltimore & O. R. Co., supra, 131 F.2d at page 368, the court said, 'without negligence on the part of the carrier or one of its employees no recovery may be had. The mere happening of an accident is not sufficient.'

In Spencer v. Atchison, T. & S. F. Ry. Co., supra [92 Cal.App.2d 490, 207 P.2d 128], it was held that mere proof of insufficiency of a switch was not enough and that 'liability cannot be predicated on mere speculation' and that whether there was constructive notice depended on whether the switch in that case was in the same condition for sufficient length of time that it reaonably could be inferred that the railway company had notice.

In Apache Ry. Co. v. Shumway, supra, where there was a foreign car involved, owned by the Union Pacific Railway Co., as in this case, it was held that liability for injury occasioned by such a defective car must be predicated upon failure of the railway company to properly inspect, or having so inspected the car and finding it defective, has put it in its train. In this case there is no substantial direct evidence of failure to actually properly inspect, or of actual notice. The evidence in the instant case is that it was the custom to inspect incoming cars and tag defective equipment. The defect, if any, was not apparent from a visual inspection. The car was in the yard a few hours and it is possible the defect developed there. There was no testimony at all as to the exact cause of the defect, if any of the equipment.

In St. Louis, I. M. & S. R. Co. v. Ingram, supra, 124 Ark. 298, 187 S.W. 452 at page 453, distinguishing between state statutes and the Federal Employers' Liability Act, the court stated:

'* * * Under the federal statute, the presumption prevails, even after proof of the defect, that the railway company was not aware of its existence; and, until it is shown that the railway company knew, or, in the exercise of ordinary care, should have known, of the defect, it is not charged with that knowledge.'

One of the difficulties in the pending case lies in the absence of any direct testimony showing the actual defect in the journal box or the lid thereto. The defective condition, if any, can only be inferred from the fact that the lid did not open on application of pressure from the packing tool used by the workman.

There is no testimony that defendant actually knew of its defective condition, although we are asked to infer that because the train was customarily inspected when it entered the yard, defendant was aware of the defect. In other words, we are asked to infer that because the tool slipped, the journal box or lid thereof was defective; that because of the defect defendant knew of the condition...

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