144 P. 104 | Or. | 1914
delivered the opinion of the court.
This is an action to recover damages for personal injuries, occurring to the plaintiff in the State of Washington. The Northern Pacific Railway Company
On the 3d day of February, 1913, the plaintiff was in the employ of the Northern Pacific Railway Company as a track-walker, at and near Ridgefield, in Clarke County, State of Washington. It was his duty to walk the said track of said company from the station at Ridgefield south, a distance of a mile and a half, in Clarke County. He was to begin his work at 7 o’clock a. m., each day, and walk over said track frequently during the day, for the purpose of discovering obstructions thereon, etc. He was not a servant or employee of the defendant. From 30 to 40 trains pass over said track daily. On February 3, 1913, he appears to have begun his work as early as 6:15 a. m., and when he had walked about a mile south of Ridge-field, at about 7 o ’clock a m., he was struck by a freight train of the defendant going south. His left leg was broken, and he received other serious injuries, which, he contends, incapacitated him permanently to earn a living. He demands damages in the sum of $25,000.
The following portions of the complaint state the plaintiff’s cause of action:
“That on the 3d day of February, 1913, plaintiff was employed by the Northern Pacific Railway Company on said double track line of railway between the City of Tacoma, Washington, and, the City of Portland, Oregon, as a ‘track-walker’ between the stations*286 of Ridgefield and Felida, in Clarke County, Washington, and that in the performance of his duty as such track-walker on said day, at about the hour of 7 a. m., plaintiff was walking on said track on the lookout for obstructions, and, while engaged as aforesaid, defend- . ant’s employees and servants, in charge of one of defendant’s trains running on said double track, carelessly and negligently ran said train at a high and dangerous rate of speed upon plaintiff, and said train struck and hit .plaintiff and threw plaintiff with great force and violence off said track. That defendant’s employees and servants, in the operation of said train as aforesaid, carelessly and negligently failed to give any warning to plaintiff of said train, and carelessly and negligently failed to ring the bell or blow the whistle of the said train as said train approached plaintiff while in the performance of his duty as aforesaid, and that plaintiff, because of the careless and negligent acts of defendant’s servants and employees as aforesaid, suffered a compound fracture of his left leg, fractures of ten ribs, great and severe bruises, contusions, lacerations and wounds about the head, back, arms, lungs, legs and his private organs, and because thereof plaintiff has suffered and still suffers great pain and mental anguish, and because thereof plaintiff has been and now is incapacitated, permanently disabled, and unable to earn his livelihood.”
The defendant denied most of the allegations of the complaint, and set up negligence on the part of the plaintiff. After alleging that it was very foggy on the morning of February 7, 1913, when the plaintiff was injured, etc., the answer alleges:
“A short distance from Ridgefield, Washington, and ' outside the yard limits, and particularly on the main track of said railroad, the plaintiff was walking along between the rails thereof. His presence was not known to the defendant or its crew in the operation of said train. Said plaintiff did wrongfully trespass and go upon said railroad track, and did carelessly and*287 negligently be and remain upon, and walk along, said railroad track outside of yard limits, without right, without authority, and against the will and consent of either the Northern Pacific Railway Company, or of this defendant, or of any other railroad company operating trains thereover. Defendant’s train, upon said occasion, was approaching Ridgefield, was reasonably well loaded and making a large amount of noise, which sounds of the running train were easily and readily heard for some time prior to the time the said train arrived at the point where plaintiff was walking. The headlight of the defendant’s engine was burning brightly during all of the time the train was proceeding from Ridgefield to and beyond the place where plaintiff was walking. The plaintiff had no right to be or remain upon, or walk along, said track, but was trespassing thereon, and, notwithstanding plaintiff was wrongfully and unlawfully on said railroad track, yet he did also carelessly and negligently fail, neglect and omit to listen for the approach of defendant’s said or any train, or to look for the approach of the same, and, if he had listened and looked for the said train, he could have heard its approach in ample time to have stepped from said track and avoided the collision hereinafter mentioned. Said plaintiff did also, carelessly and negligently remain upon and walk along said track, and did continue to do so until said train arrived within such close proximity to plaintiff that a collision with him was unavoidable, and said engine did collide with plaintiff, whereby he suffered injury, if any, and not otherwise. The defendant was operating said train at a reasonable rate of speed, and had no reason to anticipate the presence of the plaintiff on said track at said point.?’
The reply traversed the larger part of the new matter of the answer. A verdict was rendered in favor of the plaintiff for the sum of $12,500, and a judgment was entered thereon. The defendant filed a motion to set aside the verdict and judgment, and for a new
The foregoing are all of the negligent acts and omissions of which the plaintiff complains. The acts or omissions complained of are the alleged high and dangerous rate of speed at which the train was running; the failure of the employees and servants of the defendant to give to the plaintiff warning of the approach of the train; and the failure to ring the bell or blow the whistle of the train as it approached the plaintiff. The plaintiff’s right to recover is based on said allegations of negligence, and no other negligent acts or omissions can be considered by us.
The pleadings do not allege, nor does the evidence show, that the State of Washington has any law or rules regulating the speed of trains applying to the locality where the plaintiff was injured. There was
The evidence shows that the plaintiff was struck before 7 o’clock a. m. on February 3, 1913, and that it was not yet daylight,‘and that it was foggy at that point. The evidence shows also that the employees of the defendant in charge of the train did not see the plaintiff at all before he was struck, and that they did not give any warning or ring the bell or blow the whistle. They did not know that he was there, and they passed on without knowing that he had been struck. There is no conflict in the evidence on this point. All admit that it was yet dark and foggy, and that no signals were given, nor was any bell rung or whistle blown. It is shown also that the trainmen did not see the plaintiff or know that he was there. There was no public crossing or sharp curve there or near where the plaintiff was struck. This accident happened in the State of Washington, but neither the pleadings nor the proof shows any law of that state, or any rule of the defendant, requiring any signals to be given or any bell to be rung or whistle to be blown, under the facts shown in this case, at or near the point where the plaintiff was struck. If the trainmen had seen him on the track or had known that he was there, it would have been their bounden duty to give warning and to use all reasonable efforts to avoid injuring him. He was not an employee of the defend
The defendant contends, that the injury to the plaintiff was caused by his own negligence. The evidence shows that he is an Italian, and had been in this country 7% years, and that he had had experience as a track-walker in Wisconsin and in the State of Washington. He had worked for the Northern Pacific Railway Company at Lind, Washington, as a track-walker; but he had worked for the Northern Pacific at Ridgefield only two days prior to the day on which he was injured. He began his work on February 3d, about 6:15, at Ridgefield. He was struck about a mile south of Ridgefield by a freight train of 31 cars going south, as early as 7 o’clock a. m. When he left Ridge-field there was a freight train on the side-track there; and the plaintiff expected to hear it whistle when it started out. At first the plaintiff walked on the left-hand track going south, but crossed over to the right-hand track and walked on the west ends of the ties. The plaintiff says that he could see a train approaching from the south about 300 feet, and that, from his position on the ends of the ties on the west side, he could see north about 450 feet, and he says that, if he had been on the other track, he could have seen north along the track a mile. He says there was an echo there that prevented his being able to determine from which direction a train was coming when he heard the noise. On cross-examination the plaintiff says:
“Yes, sir; I listened. I heard this train on the sidetrack (at Ridgefield) going back and forth. After about a second, I heard another train coming, like a passenger train, a through fast train.”
It appears from the plaintiff’s own evidence thát he heard the train before it struck him, and that he could have gotten out of its way by jumping into the ditch that contained water and mud, but that he was not willing to do that.
3 Elliott, Railroads (2 ed.), Section 1298:
“Ordinarily, section-men or track-men assume the risk incident to the running of trains, whether extra trains or trains running on schedule time. Such employees are bound to know that regular trains may be delayed and pass at certain intervals, and that wild or extra trains may be sent over the road, and they assume the risk of danger therefrom, except in cases where, by some act or conduct of the employer, he has impliedly or expressly represented that no wild or*294 extra trains shall imperil the safety of snch employees.”
33 Cyc., page 782, says:
“In the absence of statutory requirements or knowledge of a person’s perilous position, a railroad company is ordinarily under no duty to give warning by bell or whistle of the approach or movement of its trains at places other than public crossings, depots or in towns or cities. * * This rule, however, is subject to the qualification that where, together with other circumstances increasing the risk of accident, the railroad company has reason to anticipate that persons will be on its tracks at certain places, as in towns or cities, or at other'places where persons have been accustomed to cross or go upon the tracks for a long time within the railroad company’s knowledge, it is the duty to exercise care to give warning, by bell or whistle, of an approaching train. * * But the omission to sound a bell or whistle, although required by statute, is not negligence as to one who sees or is aware of the approaching train, or as to one who could not have heard the warning, if given.”
In this case the plaintiff heard the train approaching, and the sound of a bell or a whistle would not have been of any assistance to him, for he knew without it that the train was approaching him, and he refused to jump out of the way, because he thought he would land in the ditch that contained water and mud, "beside the track.
In Ginnochio v. Illinois C. R. Co., 155 Mo. App. 171 (134 S. W. 131), the Supreme Court of Missouri says:
“It seems that the more recent decisions of our Supreme Court adopt the view of the Supreme Court of the United States reflected in Aerkfetz v. Humphreys, 145 U. S. 418 (36 L. Ed. 758, 12 Sup. Ct. Rep. 835, * * and the Supreme Court of Massachusetts in Riccio v. New York etc. R. Co., 189 Mass. 358 (75 N. E. 704), * * to the effect: First, that, because of the*295 peculiar nature of the employment, the railroad owes no duty to the section-hand other than to avert his injury after the engineer has actually seen his perilous situation; and, second, that, if a section-man is run upon and injured while performing his task, he is to be regarded negligent in not looking out for the train. In other words, the doctrine is that, in so far as section-men are concerned, the railroad is to be regarded under the law as entitled to a clear track, and such employees are to look out for their own safety, for there is a valid distinction in so far as the matter of duty pertains toward men engaged for the purpose of repairing the tracks and a stranger or other person who is not familiar with the operation of the road. ”
In Riccio v. New York R. R. Co., 189 Mass. 359 (75 N. E. 704), the court says:
“We see no negligence on the part of the defendant. The plaintiff knew that he was at work in a railroad-yard where trains and engines are frequently passing. There was no undertaking upon the part of the defendant to give him warning, but he was expected to look out for himself. If the engineer failed to sound the whistle or ring the bell, it was not negligence for which the defendant was responsible. Both by the common law and by the law of the State of Connecticut, as we understand it to be under the decisions of that state which were put in evidence (the accident occurred in that state), there is no evidence of negligence of the defendant.”
In Degonia v. St. Louis, I. M. & S. Ry. Co., 224 Mo. 564 (123 S. W. 808), the syllabus in part is:
“A section-hand killed on a track by a fast passenger train approaching a station and crossing was not entitled to rely on the giving of station or crossing signals, under Rev. Stats. 1899, requiring railroads to give certain signals at crossings, and making the railroad company liable for damages which any person*296 might sustain ‘at such crossing,’ when the hell is not rung or the whistle sounded as required. * * ”
In Blankenships’ Admr. v. Norfolk & W. Ry. Co., 147 Ky. 263 (143 S. W. 997), the court says:
“We have been referred to no case, or authority of any kind, which holds that it is the duty of the company to give a track-walker notice of the approach of trains. Evidently, from the very nature of the case, it would be unreasonable and impracticable, as well as unnecessary, to undertake such a duty. His work as a track-walker necessarily placed Blankenship upon the tracks of the road, and it goes without argument that the duty was imposed upon him to take such reasonable care of himself, in the performance of his duties, as would prevent him from being injured by a passing train. In failing to do so in this case, he was guilty of the grossest negligence, for which he can blame no one but himself.”
In Keefe v. Chicago & N. W. Ry. Co., 92 Iowa, 184 (60 N. W. 504, 54 Am. St. Rep. 542), the court says:
“The presence of the tracks, and the cars thereon, and the movement of engines, were constant warnings to him (who worked about the depot and yard) of danger. It is the duty of persons employed in such places to be reasonably diligent in guarding against accidents, and especially to observe and keep out of the way of moving engines and cars. They have no right to rely wholly upon the persons in charge of them to prevent accidents, but must use due care to avoid danger.”
See, also, Aerkfetz v. Humphreys, 145 U. S. 418 (36 L. Ed. 758, 12 Sup. Ct. Rep. 835); Cincinnati Indianapolis, St. Louis & Chicago Ry. Co. v. Long, 112 Ind. 166 (13 N. E. 659); Van Dyke v. Missouri Pac. Ry. Co., 230 Mo. 259 (130 S. W. 1).
The place at which the plaintiff was struck "is in the rural district and not near a public crossing or a sharp curve, and there does not appear to have been any law, rule or custom requiring the defendant to ring a bell or sound a whistle at that point. The undisputed evidence is that the trainmen did not see the plaintiff, and that they did not know of his presence on the track. There is no conflict in the evidence upon these points. Hence we hold that, under the facts shown by the evidence, it was not the duty of the. defendant to give the plaintiff warning of the approach of the train by ringing the bell, sounding the whistle, or otherwise. If the defendant had known or had had notice of the presence of the plaintiff on. the track, it would have been its bounden duty to ring the bell and sound the whistle and use all reasonable efforts to avoid injuring him.
It was dark and foggy, and the plaintiff was on neither track nor on the space between the tracks. According to his own evidence, he was walking on the ends of the ties west of the right-hand track, and hence he was not in a position to be seen as readily as he would have been if he had been on the track. He admits that he heard the train that struck him and knew it was approaching, but contends that he thought it
The defendant did not know that the plaintiff was on or near the track, and hence it was not guilty of negligence in that it did not sound the whistle or ring the bell. Furthermore, the plaintiff admits that he heard the train and knew that it was approaching him, and hence he had sufficient notice and warning that the train was approaching him, and he had an opportunity to escape injury by jumping into the mud and water, but he refused to do so, because he was not willing to get wet and muddy. This tends to prove negligence on his part, but we do not find it necessary to decide whether he was negligent or not.
The court, below set aside the verdict and granted a new trial for want of evidence to support the verdict. We hold that the undisputed evidence shows that the defendant was not guilty of the negligence charged, and that there was no evidence to support the verdict.
“The defendant must not be ‘a forgotten man.’ There must be a default on his part, a want of ordinary care, or the plaintiff cannot recover.”
We approve the order of the court below granting a new trial, and said order is affirmed.
Affirmed. Rehearing Denied.
