23 Or. 499 | Or. | 1893
This is an action to recover damages for personal injuries received by the plaintiff while in the service of the defendant, and a former decision is reported in 21 Or. 462. The injury was caused by the wreck of a work train from the falling of a bridge over which the plaintiff was being carried on the line of the defendant’s road. For a day or so prior to the accident there bad been unusual storms, causing dirt and rock from the adjacent mountains to slide down upon the track and obstruct it at different places, so as to impede, and finally to stop, the passage of trains for several days. On the night before the accident the storm was accompanied by a heavy fall of warm rain, which, together with the melting snow, swelled the stream spanned by the bridge in question into a freshet. The officers in charge of the passenger train which had come down the night before
1. The defendant claims that under the facts disclosed by the evidence, it was not liable for the injury which the plaintiff sustained, because “the risk arising from the plaintiff’s employment, in assisting to remove the obstructions from the track, was not increased by any act of omission or commission of the defendant.” But the correctness of this proposition depends upon the fact whether the defendant was negligent in not using proper care before the storm to keep the bridge in repair, or to ascertain the condition of the track or bridge after the storm; for, if the injury which the plaintiff sustained was the result of an omission of the defendant to take proper precautionary measures, either before or after the storm, to lessen or avoid the liability to accident, it did not arise out of any risk which the plaintiff assumed as incident to his employment. For injuries occurring to other parties by this same accident, this court, in applying the law to 'a like state of facts in Carlson v. Oregon Short Line Ry. Co. 21 Or. 450 (28 Pac. Rep. 497), by Bean, X, said that if “the danger were increased by the negligence of the master to use proper care before the storm to keep the bridge in repair, or to ascertain the condition of the track or bridge after the storm, or to take due and proper precautionary measures to prevent accidents, as the exigency of the situation might require, he did not assume such risks. The fact that the track was known to be in a dilapidated condition and out of repair, did not relieve the master of the discharge of his duty in the premises. The deceased could still expect from it the exercise of such care and vigilance, and require it to take such precautionary measures to prevent accidents, as the exigencies of the case, having due regard to the safety of its employes, would suggest to prudent
2. If the bridge was out of repair before the storm, owing to the gradual undermining of the center bents from the action of the water for the time indicated by the evidence for the plaintiff, and the defendant, by ordinary carefulness and inspection, could have ascertained and known its condition, and under such circumstances, and after such an unusual storm, when it knew that its track was obstructed by a slide below the bridge, and that its work train must cross it in carrying the shovelers to their place of service, it was the duty of defendant to send some one over its track, and especially over this bridge, to inspect it and ascertain whether it was in a safe condition, before it sent over it a heavy engine and a caboose loaded with laborers; or if the center bents were in a good condition before the storm, and were undermined and washed out by the freshet after the storm, and the defendant could have ascertained the weakened and dangerous condition of the bridge by reason thereof,
3. In our judgment, the trial court, guided by the principles of law declared in the cases referred to, which involved injuries to other parties by the same accident, properly submitted in, its charge all these questions to the jury for their determination. In Knahtla v. Oregon Short Line Ry. Co. 21 Or. 138 (27 Pac. Rep. 91), the-court says: “It had but one trackwalker on this-section of the road, whose duty it was to pass over the road during the night, and he had not been over this bridge for forty-eight hours; and we think it was a question for the jury to say whether, under these circumstances, with such extraordinary storms prevailing, it was negligence for the defendant to send out the train upon which the plaintiff was being carried, without making any investigation to ascertain the condition of the bridges over which it was to be carried.” And again, in Carlson v. Oregon Short Line Ry. Co. 21 Or. 450 (28 Pac. Rep. 497), the court says: “Whether the defendant, by the exercise of reasonable care and vigilance, could have anticipated and prevented, or provided against, the accident, and whether it was the duty of the defendant, in the exercise of reasonable care and prudence, under the facts of this particular case, to have sent men ahead of the train on which the deceased was being carried, to inspect and examine the bridge before attempting to go over it with the train, are all questions of fact for the jury. ” Whether it was a proper precaution, under the facts, to send out a man in advance of the train, was a question properly submitted to the jury. If it was a necessary and reasonable precaution,. the plaintiff had a right to assume that the defendant had done it. It was the duty of the defendant to exercise reasonable care, or to take such precautionary
4. The instructions in this case, however, are open to the criticism suggested by the court in Knahtla v. Oregon Short Line Ry. Co. supra. They are twenty-six in number, nearly all very long and argumentative, and would encumber many pages to present them. The plaintiff likewise prepared a long series of instructions, which he submitted to the court, and asked to be given. It was
The judgment is affirmed.