181 P. 338 | Or. | 1919
Lead Opinion
“No fact tried by a jury shall'be otherwise reexamined in any court of this state, unless the court-can affirmatively say there is no evidence to support the verdict.”
We have frequently held that we are precluded by this section from considering the weight of evidence, where there is any substantial testimony to support the verdict, and in the present case we shall only consider the testimony of plaintiff, with a view of ascertaining whether there is such testimony shown in the record.
The question as to whether or not the tail lights on 255 were burning was for the jury. McClure, the conductor of 255, testified that they were burning at Camp, less than two miles from North Fork. It is possible, but not at all probable, that they had all gone out in the short time that elapsed between the time McClure observed them and the time of the collision. That one of these lights might be burned or jarred out, is possible, but thajfc all three should expire simultaneously, is not within the bounds of probability. It is true the testimony of the conductor of 2140 indicates that they were not burning, but it should be remembered that he is a witness having a great interest at stake. If the lights were burning and he failed to observe them, it would indicate a negligence on his part that places the responsibility for the accident, and Fuller’s death in consequence of it, upon his shoulders; and he naturally might be inclined to shield himself and color his testimony. The foregoing does not indicate the writer’s view of the testimony, but it is an aspect of the case which might reasonably appeal to a trier of the facts, and a jury might reasonably weigh his testimony, in view of his connection with the accident, against the strong
Conceding, however, for the purposes of the discussion, that -the tail lights on 255 had been extinguished, although this seems improbable, there was still some evidence introduced by the plaintiff which tended to show that there was natural light sufficient to have enabled those in charge of 2140 to have observed the caboose of 255, and stopped in time to avoid the collision, if they had observed a cautious outlook. As shown in the statement, the witness Hoskins testified that daylight was breaking and that he was able to discern objects, such as a man or a car, at a distance of 200 or 300 feet; and this is borne out by the natural conditions shown by the almanac, and of-which the court takes judicial notice without proof.
One witness, L. F. Spoar, who testified he had had fourteen years’ experience as a locomotive’engineer, testified that under the track conditions existing from the east end of the bridge at North Fork to 300 feet beyond, 2140 could have been stopped within about 75 feet. Now take this testimony in connection with the testimony of Hoskins, that it was light enough to have seen a car 200 feet, and we have evidence indicating, that with proper lookout, those in charge of 2140, had an opportunity to have seen the caboose of 255 and to have stopped their locomotive in time to have averted the accident, even if they were running six miles an hour.
These facts were sufficient to take the case to the jury upon the question of negligence of the defendant.
Now as to Fuller’s duty to flag under Rule 99, the rule, as quoted in the statement, does not absolutely require a flagman to go back with stop signals every time the train stops, and everyone who is accustomed to railway travel, knows it is not done. It is only “when a train stops or is delayed under circumstances in which it may be overtaken by another train” that the flagman is required to go back and flag. This leaves something to the judgment of the flagman and the conductor as to the conditions which may or may not involve a liability to be overtaken by another train.
On cross-examination McClure testified as follows:
“Q. Now, Mr. McClure, going into a station like North Fork, where you know you are going to head in on the passing track, it is the duty of the flagman to be there ready to go out flagging immediately?
“A. Well, under ordinary circumstances we stop and head right in. I wouldn’t expect it, no, sir.
“Q. Do you know where the S. board is there at North Fork, or was at that time?
“A. I know about where it was, yes.
“Q. Where was it with reference to the hind end of this train, when you stopped your seventy cars to head in?
“A. Well, the caboose was outside the S. board at that particular place.
*172 “Q. Do you mean to tell this jury when you stopped to head in, and your hind end is outside the S. board, you don’t have your flagman go out ?
“A. Well, it is not customary. That is, where you stop and head right into a place. Of course if you are delayed any length of time they are supposed to go right back.
“Q. What do you call being delayed any length of time?
“A. Well, I should think a delay of three or four or five minutes.
“Q. Would you let the hind end of your train stick out there three or four or five minutes before you would send your flagman out?
5‘A. Well, that would depend.
S‘Q. Well, what would it depend on?
“A. Well, it would depend on conditions — of the track and grade and such as that.
“Q. Well, I am asking you with reference to conditions as they existed there at that time and place, and this grade and this track?
A. Well, it was his duty to go out and flag there at that place.
“Q. And it was his duty to go out immediately?
“A. Yes.
“Q. And he should have been in a position to go out and flag immediately, under those circumstances, should he not?
“A. Yes.
‘ ‘ Q. And he understood that is where he should have been?
“A. Yes.”
We think the above testimony clearly indicates that it was not customary for the flagman to go back at an ordinary stop made for the purpose of heading in on a switch, but that if anything unusual occurred, such as the breaking of the train, or there was reason to expect some danger from the rear, it was his duty to go immediately. The breaking in two of the train was such
Most of the testimony introduced by plaintiff on this phase of the case was necessarily drawn from persons who were, at the time of the accident, in the employ of the defendant, and some of whom a verdict in favor of plaintiff would impliedly convict of negligence. Under the circumstances, it is safe to say that they were, to a certain extent, unwilling witnesses, and that nothing was volunteered that was prejudicial to defendant; but with all these drawbacks we think the plaintiff presented a case sufficient to go to the jury, and that defendant fell short of making one showing the negligence of the deceased was the sole cause of his death, if indeed it has shown that he was negligent in any particular.
“Now, you are instructed that the burden of proving that Fuller was guilty of contributory negligence, is upon the defendant, and in this connection you are instructed that in a death case, such as this is, there is a presumption that the deceased exercised reasonable care for his own safety, and the deceased is entitled to the benefit of this presumption, unless you find under all of the facts and circumstances of the case, by a fair preponderance of the evidence, that Fuller was negligent and such negligence contributed to cause his injuries and death.”
We think the instruction was proper under the circumstances. The. contention of defendant was, that the negligence of the deceased was the sole cause of the accident. The case was in this position: (1) It was incumbent upon the plaintiff in the first instance to show the negligence of the defendant’s servants in charge of 2140, and there was in their favor a presumption to begin with, that they performed their duty and exercised reasonable care for their own safety and for the safety of other trains on the road. When it attempted to impute negligence, either contributory or sole, to deceased, plaintiff was entitled to invoke the same presumption in favor of his conduct. This is the doctrine sanctioned in this state in McBride v. Northern Pacific R. R., 19 Or. 64 (23 Pac. 814, 42 Am. & Eng. Ry. Cas. 146). The presumption is not invoked primarily for the purpose of showing that the defendant was negligent, but for the purpose of placing upon the defendant the burden of proving the negligence of ® deceased. The instruction stated the law so far as it went and there was no request for an instruction to like effect on behalf of the defendant.
Subdivision 10 of the complaint is as follows:
“That during all the time hereinbefore mentioned and alleged and on the day and at the time of the happening of said accident and injury to said Fuller hereinbefore alleged, it was the duty of the defendant to equip, maintain and use its said certain locomotive engine then and there being operated and handled over the .defendant’s said main line track towards and in the direction of the said caboose wherein said Fuller was stationed and situated at said time at the forward or westerly end thereof, with an electric headlight, of sufficient candle-power, measured with a reflector, to throw a light in clear weather, that would enable the engineer, who was then and there operating, handling and controlling said locomotive engine, to •plainly discern an object the size of a man, or larger, and more particularly the caboose on which said Fuller was then and there stationed and situated, as herein-before alleged, at a distance of not less than 800 feet therefrom, and to maintain and use such headlight upon said Westerly and forward end of said locomotive engine at the time and place where the said accident and injury to said Fuller occurred, to the end that said locomotive engineer might see and observe obstacles or obstructions upon the track, such as other engines, cars or trains, in ample time to stop and thereby avoid same. ’ ’
Having thus stated the duty of the defendant, subdivision 11 proceeds to set forth the breach of such duty as follows:
“On the morning of September 3, 1917, defendant negligently and unlawfully propelled and operated*177 along its main line track in a westerly direction, the said locomotive engine hereinbefore mentioned and described, which said locomotive engine was not then and there equipped with an electric headlight at the forward and westerly end thereof, of the candle-power required by law, as hereinbefore alleged, and the defendant negligently, wrongfully and unlawfully failed to equip, maintain and use at the forward and westerly end of said locomotive engine, then and there being operated backward along over its said main line track, any headlight at all, so as to enable the engineer operating and handling said locomotive engine, to see and discern upon the said track, any obstacle or obstruction thereon in time to avoid accident or collision therewith. ’ ’
The charge of the court, in relation to the matter thus pleaded, was as follows: ,
“It is likewise charged in the complaint that the defendant negligently operated extra 2140 without having a standard headlight on the front end thereof, having in mind the direction in which extra 2140 was running, or in other words, that there was no standard headlight on the rear end of the tender. This charge of negligence is practically the equivalent. of the charge that the defendant negligently operated extra 2140 backwards. The court submits to you the issue in this connection, whether, if the defendant chose to operate extra 2140 backwards, it failed to exercise ordinary care by reason of not having the rear end of the tender equipped with a standard high-power headlight. If you find that the defendant was negligent in the particulars in question, and you further find that such failure so to equip with a standard high-power headlight proximately resulted in the collision of extra 2140 with the rear'end of No. 255, and resulted in the fatal injuries to Walter Francis Fuller, it is your duty to find for the plaintiff. ’ ’
The language of the complaint, alleging the duty of the defendant with reference to lights upon the loco
“Each locomotive used in road service between sunset and sunrise shall have a headlight, which shall afford sufficient illumination to enable a person in the cab of such locomotive * * to see in a clear atmosphere a dark object as large as a man of average size, standing erect, at a distance of at least 800 feet ahead of such headlight. Each locomotive used in road service, which is regularly required to run backward for any portion of its trip, except to pick up a detached portion of its train, or in making terminal movements, shall have on its rear á headlight, which shall meet the foregoing requirements. * *
“It is further ordered that said rules shall apply to all locomotives constructed after July 1, 1917, and for locomotives constructed prior to that date, the changes required by the above rules shall be made the first time locomotives are shopped for general or heavy repairs after July 1, 1917, and all locomotives shall be so equipped before July 1,1920. ”
It does not appear either from the complaint or the testimony that the locomotive in question was regularly required to run backward, or that it was constructed after July 1,1917, or that it had been shopped for general or heavy repairs, after the promulgation of the above order, therefore, if there was any liability for the failure of defendant to have such a headlight, as described in the complaint, upon the rear end of 2140 on the night of the accident, it would have to be found under the general clause of the Employers’ Liability Act and not under the rules of the Interstate Commerce Commission. The Federal Employers’ Liability Act does not undertake to define negligence,
We do not understand that the orders of the Interstate Commerce Commission fix, or ar*e intended to fix, the maximum of negligence in the use of lights, or in the operation of trains. The trip to be made was from the summit of a high range of mountains down a steep grade and in the night-time. Whether the circumstances justified defendant’s agents in making it without waiting for daylight, or until they could get to the turntable and turn around, so as to proceed with their light in front, was a question for the jury. Whether making the trip under the circumstances without such a light on the rear, as the wisdom and experience of the Interstate Commerce Commission had found sufficient for the safe operation of a train proceeding regularly, was also a question for the jury. For the defendant’s employees to go banging down that grade in the dark at the rate of six miles an hour, with the home signal indicating danger, and with the knowledge that there was another train less than a mile away standing upon the same track, would appear to the average layman to have been an almost reckless proceeding, and yet this is the situation shown by the testimony of defendant’s employees upon train 2140.
If circumstances ever existed where the best of light or the greatest caution should have been used, they
The language used by the court in the instruction in describing the headlight, might be subject to some criticism from an expert railroad man’s standpoint, but we think it in no way misled the jury.
Other minor "objections are urged and have been carefully considered, but we deem them without merit. The real and vital questions upon the trial, and those chiefly argued here, were (1) the alleged sole negligence of deceased, and (2) the instruction of the court in regard to the train backing down without a headlight. These have been the subjects of long and serious consideration, with the result above indicated.
The judgment is affirmed. ‘ Aeeirmed.
Rehearing
Denied July 22, 1919.
On Petition eor Rehearing.
(181 Pac. 991.)
In a vigorous petition for rehearing, the soundness of the opinion heretofore rendered is challenged in several particulars.
It is first called to' our attention that in several instances the opinion refers to Guy E. Chapin, the engineer in charge of train 2140, as the “conductor” instead of the “engineer,” and this criticism is technically correct. Train 2140 consisted of a locomotive with tank attached and had no technical conductor, but was in charge of the engineer; but we submit that being in charge of the locomotive, his position approached quite as nearly that of a conductor, as the locomotive and tank approximated to a train, which is what defendant’s witnesses called it. We apologize, and hereafter Mr. Chapin will be known and designated in the Oregon Reports as “Engineer of Train 2140.”
Our attention is also called to the fact that we have inadvertently called the intermediate signal, half a mile east of the North Fork bridge, the “home signal” and this criticism is also correct; but we call attention to the fact that it showed just as red and indicated danger just as effectually as though it had been designated by its proper title, and Engineer Chapin says that it was “red and showed danger.” The opinion nowhere indicates that train 2140 ran past the intermediate signal without stopping. It did stop for five minutes and then, with the danger indication still showing, went ahead at the rate of at least six miles an hour with the knowledge on the part of those operating it that 255 was on the main track half a mile ahead.
“Q. If those tail lights had been burning in the caboose, which you say they were not, you would not have had any difficulty in seeing the end of the caboose and stopping 2140 ?
“A. No, sir.”
This left for the jury the question as to whether the tail lights were burning, and — as shown in the original opinion — they had a right to weigh the statement of a witness having a strong moral interest in the result, against the intrinsic improbability that all three of the tail, or marker lights, which are independent of each other, should have been extinguished, when it had been shown that all three had been burning a little over two miles back; and especially when Engineer Chapin’s testimony, as to natural light conditions, had been contradicted by Hoskins, an entirely disinterested witness.
It is earnestly urged that the testimony shows that 2140 was running “under control” at the time of the accident. It is true that several very estimable gentlemen connected with the railroad, testified that in their opinions such was the case, but, viewed from the standpoint of the rules, their judgment is not sustained. The words “under control” are defined in the defendant’s book of rules, as follows: “Under Control: To be able to stop within the distance track is seen to be clear.” This does not mean to run six miles an hour, which is the maximum speed at which a train may be said to be under control under any cir
It is true that there is evidence on behalf of defendant, tending to explain these circumstances, but the people of this state, in their collective wisdom — or unwisdom — have seen fit to ordain that in law actions, the comparative weight of testimony shall not be examined upon appeal, and, therefore, we are precluded
Our statement, that it was fairly deducible from the evidence, that Fuller had agreed to flag 2140 against No. 4 passenger, is criticised as not borne out by the testimony. Let the testimony speak for itself. On page 218 of the evidence we find the following testimony of Engineer Chapin upon cross-examination:
‘ ‘ Q. And, if necessary, Fuller would flag you against No. 4?
“A. Yes.
“Q. Of course No. 4 was a passenger train?
“Mr. Crawford: I think you are misquoting the witness in saying he was to flag as against No. 4.
‘ ‘ Q. Then Fuller was to flag you and protect you as against No. 4.
“A. Yes.”
Whether sufficient time elapsed between the break* ing in two of train 255 and the -collision to have enabled Puller to get his lantern and fusees and start back east to signal 2140, were questions of fact for the jury. As remarked in the original opinion, it may well be that he was in the act of starting when the collision occurred. The only voice that could have explained his movements is stilled by death, and we are not prepared to say that he, who is shown to have been careful and diligent upon other occasions during the trip, was neglecting his duty and recklessly exposing his own life in this instance.
Our attention is called to the fact that, the train order for 2140 is in the transcript. This criticism is correct, although the fact itself is not material. The order reads: “September 3, 1917. Engine 2140, run extra Kamela to Pilot Eock Junction; take siding, meet extra 2162 east at Duncan.” No time of starting
"While it is not negligence per se to run a train backward, and while it is not unusual for trains to be so run, especially in daylight and for comparatively short distances, conditions may exist when so operating a train, and especially in the dark and down steep grades and without lights sufficient to indicate possible obstruction on the track, may constitute negligence, and this is as far as the original opinion goes or was intended to Co.
The court’s instruction as to the headlight was, we think, sufficiently discussed in the original opinion. We think it fair to assume that the headlight, required by the Interstate Commerce Commission, which is shown to be one of high power, supposed to disclose objects one thousand feet ahead of the train, is the standard headlight, made so by the order and by general acquiescence and used all over the country, and this, evidently, was what was in the court’s mind when the instruction complained of was given. The complaint charged, in substance, that neglect to have such a light on the west end of the train was one of
The objection urged seems more to the court submitting to the jury the question of the propriety of running without the light particularly described in the instruction, rather than the necessity of having some kind of light. Had there been any light whatever on the tank, and a dispute as to its sufficiency, an instruction of the character indicated might possibly have been prejudicial; but it is conceded that there was no light of any kind on the- tank except the markers, which it is also conceded were not useful in enabling the persons operating the train to discern obstructions on the track, so the instruction in substance left the jury to determine whether it was negligence for defendant’s servants to operate the train without lights under the conditions disclosed by the testimony.
The jury were fully instructed in accordance with the contention of defendant as to Fuller’s duty to go back and flag trains when his own train was delayed upon the track; whether he had time to do this after he became aware that his train was more than momentarily delayed, for the purpose of heading in, was left to the jury. Whether there was time for him to have gotten his lantern and fusees and got out of the caboose, was a question of fact for the jury. While, in view of the testimony and the instruction of the court, the statement in the original opinion that “The rule does not absolutely require the flagman to go back with stop signals every time the train stops,”
Taken as a whole, we are of the opinion that the trial and instructions were eminently fair to the defendant, and that no substantial error was committed to its prejudice; and that while this court-sitting as a jury of seven to try the facts, might come to a different conclusion from that arrived at by the jury that tried the cause, there is sufficient evidence to support their finding.
We adhere to the conclusion reached in the original opinion. Affirmed. Rehearing Denied.