22 Or. 533 | Or. | 1892
This is an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in suffering its railroad track to be obstructed by a slide of snow, earth, and gravel, at a point named on its road, whereby the train, of which plaintiff was conductor, and upon which he was riding, was thrown from the track, and he was injured. The defense set up is contributory negligence; and as relevant to the matter under review, the defendant’ alleged that its track had been obstructed for one or two days prior to the accident; that the plaintiff and other men with him went out on a work train for the express purpose of removing slides ol snow and earth which had accumulated on the track, so that trains might pass over it; that the plaintiff had full knowledge of the obstructed condition of the track; that at the time of his injury, the plaintiff was in charge of the train, which was being run by the engineers at a dangerous rate of speed, and without keeping a good lookout ahead of said train, in consequence of which the train struck a slide of snow and earth, and was thrown from the track.
Under this defense, the defendant claimed, and sought to establish—first, that the plaintiff assumed as part of his contract of employment the risk of the train striking such an obstruction on the railroad track as that out of which his injury arose; and, second, that the plaintiff’s injury was the result of his own negligence in allowing the engineer to run the train at an excessive or dangerous rate of speed without keeping any lookout for obstructions on the track.
The evidence shows that prior to the day of the accident, a good deal of snow had fallen, which the wind, in some places, blew into drifts. Orders had been given that regular trains would not be run. The plaintiff was employed as a conductor of a freight train. On the day of his injury, he received an order from the trainmaster as follows: “ To engineers 83 and 86 (engines 83 and 86 coupled)—Con
There is a difference between a slide and a drift; and the testimony of these two witnesses, as well as others, seems to take it for granted that a slide is dangerous. Slides come from the sides of the mountains, and are usually mingled snow and gravel and rock, and necessarily a dangerous obstruction on a track. These two witnesses had been sent out by the section foreman Lee as track walkers, to examine the track;—to go over it and see what condition it was in, and to report the condition of the track to him. This they did; yet this section foreman, with this knowledge of the condition of the track, utterly neglected to investigate the matter himself, or to give warning of the condition of the track at the place of this slide. The foreman was at a telegraph station, but not even a message was sent to the roadmaster or train dispatcher. Neither the plaintiff nor the engineer knew of the location of the slide. The blockade was east of that point; and when they received orders to run extra to La Grande, they had reason, on this account, to rely on a safe track, as well as to suppose that the road was open and in' running order from the fact that the snow-plow had gone over the track to La Grande the day previous. Madden, the roadmaster, whose duty included superintending section men and keeping obstructions from the track, cestified that he had no reason to anticipate that any slide would
When the nature of a question is such that a man of ordinary intelligence and experience is incapable of drawing correct conclusions from the facts in evidence without the assistance of some one who has special skill or knowledge on the subject, the opinion of an expert is desirable and competent evidence. Chief Justice Shaw said: “It is not because a man has a reputation of superior sagacity and judgment and power of reasoning, that his testimony is admissible; if so, such men might be called in all cases and advise the jury, and it would change the mode of trial;
The opinion asked here goes to the merits. It seems to ns, upon the facts as disclosed by the record, the jury was competent to form an opinion, or draw the proper conclusion from the facts, without the opinion of the witnesses upon the subject. It is not material that the evidence would not justify that construction put upon it by the defendant, or that the witnesses understood it differently, as its competency depends upon a state of facts involving technical skill, or knowledge, which the facts in question did not present for consideration. The defendant contended-that, under the conditions presented by the evidence, the running of the train at the rate of fifteen miles an hour, without keeping any lookout, was dangerous, and negligence in the plaintiff contributing to his injury. While the witnesses expressed the opinion, that under the circumstances the rate of speed was not excessive or dangerous, and that it might have been increased without liability to accident, yet the opinion being such as touched the merits, and upon a subject matter that involved no technical skill or knowledge, and which the jury was competent to decide, we think the opinions of these witnesses as evidence was inadmissible, and that it would have been more consonant with the rules of evidence to reject it. But the question arises, whether upon the facts the jury could have formed any other opinion, or reached any different conclusion from that expressed by these witnesses, for, if they could not,
The contention of the defendant was, that the evidence tended to establish the defense pleaded,—that the plaintiff was employed upon a work train, and went out with it upon a track known to be obstructed for the purpose of removing such obstruction; that with such knowledge and upon a road thus obstructed, he permitted the train to be run at an excessive rate of speed, without keeping any lookout, and when the snow was plastered over the windows so that neither he nor the engineer could see ahead; that under these circumstances, and in violation of the rules of the defendant as to the rate of speed to be used in such case, and in violation of their duty, they recklessly ran the train into the slide and caused the accident. If this were a proper construction of the facts, or if upon any such state of facts the opinion of these witnesses had been based, we should feel no hesitation in declaring such evidence not only inadmissible, but such error as would entitle the appellant to a new trial.
The telegraphic order received by the plaintiff was not to work, but to run extra,—that is to say, that the orders which he and the engineers received-show that they were led to believe that they had a clear track from Kamela to La Grande as an extra, and not that they were to work between those points. If those in charge of the train had been instructed to clear the track of obstructions, or do other work on their way to La Grande, their orders would have been in an entirely different form, as the rules, which are made a part of the so called bill of exceptions, disclose. A rotary snow-plow had gone through over the track the day before to La Grande, and the roadmaster and other officers supposed and thought the road was open to La Grande from Kamela, where Fisher and his train were, and where the roadmaster was with a gang of shovellers in a caboose. It was between La Grande and Huntington
It is plain from the telegraphic correspondence between the roadmaster and the train dispatcher that there was no blockade or obstruction thought of between Kamela and La Grande; and in view of the other facts already stated the plaintiff had no reason to suppose that he was on a working train for the purpose of aiding in removing obstructions from the track, or that the track was obstructed, or that he was performing any other than his customary duty as freight conductor in the run from Kamela toward La Grande. Nor was the train run without any lookout, or the cab windows so covered with snow, or kept closed that they could not see out. It was only when passing through the drifts of snow that the windows were closed, and then only for an instant, as has been already sufficiently explained. The track was not out of order, or in any condition of obstruction except at the slide, which had been reported by the track walkers to the section foreman. The track walkers did not report the drifts of snow between the slide and Hilgard, for they did not consider them of sufficient importance; but they did report the slide as coming from the mountain, showing that they did consider it as something that merited more than ordinary consideration, and the foreman must have so understood it. Nor until the engine struck the slide, did they meet with any obstruction upon the track in the run, showing again that the track walkers had reported truly the only obstruction on the track which required to be attended to before a train should be started without notifying its officers of its location. Under these conditions and circumstances, there is
There is but one other point we deem it necessary to consider. It is in relation to an instruction given, which, it is claimed, assumes without qualification that track men and the plaintiff were not fellow-servants; that trainmen and section men may be, and frequently are,.fellow-servants, is not disputed, and no authorities need to be cited.
In Wellman v. Oregon Short Line, etc. Ry. Co. 21 Or. 530, which involved substantially the same pleadings and issues, —Wellman being on the same train as fireman, and killed by the same accident,—it was said by this court: “To avoid misconception, a single observation in relation to instruction number seven seems to be necessary. It is as to the effect to be given to the knowledge acquired by the trackmen or section master on the fifteenth of January, the day before the accident. There is evidence tending to
Within the principle declared in that case, it would' hardly seem doubtful, if the facts be assumed to exist, as claimed by the defendant, that the plaintiff was going out in charge of a train to find and remove obstructions upon the track between Eamela and La Grande, that the master in the exercise of ordinary care would not have been bound, to notify the plaintiff of the existence and location of this slide obstructing its track. The section foreman, whose business it was to inspect the track, and keep proper watch and oversight over it, had, in the performance of that duty of the master delegated to him, sent out two track walkers the night before the accident to ascertain the condition, of the track, and they reported to him that there was a slide obstructing the track. The section foreman knew, therefore, of the existence and location of the slide the evening before the train started, and had the means by telegraph to communicate that important fact to the train-dispatcher, or he could himself have notified the plaintiff, or warned him in various ways, and thus avoided any liability to accident on account of such slide. As the foreman stands for the master in such case, it would seem to be a plain dictate of duty for the master, with due regard for the safety of its servants, and in the exercise of that care and vigilance which the exigency of the situation required, to have noth
But we are not compelled to rely upon this aspect off the case; it is only suggested to show its character, and the difficulty of giving it any solution consistent with the exercise of due care in the premises. The case here is wholly different upon its facts. As they have already been detailed, it is unnecessary to repeat them; but it will be enough to summarize some of them to .-show the inapplicability of the theory of the defence to them. The plaintiff was not on a work train sent out to clear obstructions from the track between Kamela and La Grande., Nor did he take charge of the train with any notice or knowledge that his duties involved such work, or other .than his customary duty in running the train between Kamela and La Grande. For various reasons, he had a right to suppose that the track was clear or free from obstructions, except light snow blown into drifts, and that the blockaded track was between Huntington and La Grande. The shovelers were being carried to La Grande. The roadmaster in charge of them says he had no reason to expect that they would run into a slide, or that they were running at a dangerous rate of speed. Upon this state of facts, the risks incident to a track known to be obstructed with slides of snow and earth, aa constituting a part of the contract of one accepting service upon
The judgment is affirmed.