Caplinger v. Northern Pacific Terminal, 418 P.2d 34

Caplinger v. Northern Pacific Terminal

418 P.2d 34

Or.

1966

Check Treatment

SLOAN, J.

This is а Federal Employers’ Liability Act case. Plaintiff was injured when he was working as a member of a crew engaged in a switching operation in defendant’s yard in Portland. The injury occurred whеn he partially fell from the top of a box car to which he had gone to set the brake. As he attempted to climb down the ladder from the top of the car, his feet slipрed and in the process of catching a rung of the ladder to avoid falling, he was injured. His claim of negligence was that defendant had permitted water and grease to accumulate in the area where plaintiff had been obliged to walk before he climbed onto the car and that he slipped because his shoes were, therefore, greasy and slick. Defendant plead contributory negligence. The jury found for defendant. Plaintiff appeals.

The first assignment of error is directed at the *291court’s instruction on the burden of proof. The instruction given was the commоnplace one. The exception to the instruction, in part, was that the court was requested to change the instructions to “* * * tell the jury that it is for them to choose from the number of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍probabilities that they find in the evidence which is the more probable.” The meaning of the exception taken is not clear. Whatever it was intended to mean no authority is cited to sustain the abstract exception except some of the languagе of the Supreme Court in Rogers v. Missouri Pacific Railroad Co., 1957, 352 US 500, 77 S Ct 443,1 L Ed2d 493. We can find nothing in the Rogers’ opinion, or any other, that indicates that the instruction given was wrоng.

The second assignment claims that the court should have withdrawn the plea of contributory negligence. The evidence would have waranted the jury in finding ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the cause of plaintiff’s fall was the manner in which he chose to get off the top of the car and not beсause of muddy shoes. This was a jury question.

The last assignment is more difficult. It relates to the instruction givеn on causation. The court first instructed that if the defendant was negligent and the negligence contributed in any way, no matter how slight, towards plaintiff’s injury, then it should consider that plaintiff’s injury was cаused by defendant’s negligence. The court then added: “In considering contributory negligence, this same rule would apply” The court thus allowed both parties the benefit of a “simple cause” instruction. See 18 Stanford L Rev 929 (1966), Legal Cause, Proximate Cause, and Comparаtive Negligence in the FELA. This is in contrast to the more traditional and more complicated instruction on proximate cause. In other words, plaintiff wanted defendant held liablе if there was a simple causal *292connection between defendant’s negligence and Ms injury, but not in respect to plaintiff’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍alleged contributory negligence. The same argument was advanced in Page v. St. Louis Southwestern Railway Co., (CCA 5th, 1965) 349 F2d 820, 822. In Page, the trial court had given an instruction similar to the one given here. The рlaintiff, Page, as in tMs case, was satisfied to have defendant held to a simple casual relationship between defendant’s negligence and plaintiff’s injury. However, as it was expressed in the Page opinion:

“* * * But not so, he says, when it comes to judging causation as to asserted contributory negligence of the Employee. Here he wants the good old fashioned dialeсtic of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍proximate causation with all of its built-in metaphysical concepts of natural and unbroken sequence, but for, foreseeability of harm and the like.*” (Footnote omitted).

It is not exactly clear what real difference the double standard instruction would make in the trial of a Federal Employers’ Liability Act case. The thought appears to be that it would make the plaintiff’s case easier for jury consideration. It is reasonable to assume that to say defendant is liable if there is any slight causal connection between negligence and injury and then give the more complicated, traditional instruction on proximate cause in respect to the defense of contributory negligenсe would cause the jury to believe that a defendant has the greater burden. We arе not certain that tMs is so. In Page the court refused to apply a double standard in causation instructions and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍approved an instruction very similar to the one given in the instant case.

Thе Stanford Law Review comment we have cited is a critique of the Page case and, with goоd argument contends for a double standard. The law review com*293ment analyzes the statutе, as amended, 45 USCA §§ 51-60, 1964, to require the double standard of causation instructions. We are more impressed, however, with the views expressed by the Fifth Circuit Court of Appeals and sustain the instant instruction which applied the same test to both parties.

Affirmed.