23 Or. 493 | Or. | 1893
This is an action to recover damages for negligence of the defendant, causing an injury to the plaintiff while at work in the employment of the defendant. The negligence complained of is predicated upon two grounds: First, that the defendant neglected to provide suitable rules or regulations for the protection of its trackwalkers, and especially for the protection of the plaintiff; and, second, that the defendant failed to instruct the plaintiff of the dangers known to it, but unknown to the plaintiff, incident to the employment in which he was about to engage.
1. The principal contention for the appellant is that the trial court erred in denying the defendant’s motion for a nonsuit, and in refusing to instruct the jury to find for the defendant. Briefly and substantially, the evidence shows that the rules and regulations adopted by the defendant required the engineers of its trains to whistle at whistling posts in passing over the road; that the plaintiff was employed by a section foreman of the defendant as a trackwalker on a section of the defendant’s road lying between the stations of Viento and Hood River; that previous to such employment, the plaintiff was a rancher residing near Hood River and in the vicinity of the defendant’s road, and had ridden over this section of it some two or three times; that there were several high
As to the insufficiency of the rules to protect track-walkers from the dangers of an approaching train while in the discharge of their duties, the contention is that they were defective in not providing that the engines should whistle at frequent intervals before approaching bridges or trestles on which trackmen might be walking. But the facts as disclosed by this record do not sustain this contention. The evidence shows that the injury was not caused by a defective system of rules, or the failure to observe them. It was not occasioned either because
2. . As the argument indicated, it is the other ground of complaint upon which the plaintiff chiefly relies to sustain his action. This is, that the foreman of the defendant failed to instruct the plaintiff, who was inexperienced, how to avoid the danger incident to his work, in the event he was. caught on a bridge or trestle by an approaching train. The solution of this question involves the inquiry whether the danger or risk incident to such employment, in view of the plaintiff’s inexperience, required the defendant to give him such instructions as would enable him to comprehend such danger and do his work safely. The general rule of law governing the liability of the master for personal injuries received by the servant' in the course of his employment is that the servant assumes all the risks and hazards incident to such employment, when he possesses sufficient intelligence and knowledge to comprehend them ; and if he be an adult person, unless the evidence shows otherwise, the presumption is that he has sufficient intelligence to comprehend the dangers incident to such service or employment. But when the master employs a servant to do work in a dangerous place, or where the mode of doing the work is dangerous, but apparent to persons of capacity and knowledge of the subject, and such servant, from youth or inexperience, or want of capacity, fails to appreciate or comprehend the danger of working at such place, or the dangerous character of the work, it is the duty of the master to point out and explain to such servant the dangers or risks of such employment, so as to enable him to comprehend them and do his work safely, and if the master fails or neglects to do so, and by reason
3. The evidence shows that the plaintiff told the foreman that he knew nothing about the duties of a trackwalker, and asked for instructions. The foreman gave him some instructions in relation to his employment, and such, perhaps, as the foreman may have considered sufficient to enable him to understand his duties, in view of his age and intelligence. He did' not, however, instruct him that he must get out on the caps to avoid injury
The judgment must be reversed, and the cause remanded, with direction to the trial court to enter a judgment of nonsuit.