142 P. 554 | Or. | 1914
delivered the opinion of the court.
“That every common carrier by railroad while engaging in commerce between any of the several states * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”
As a matter of pleading the complaint is sufficient to show character and relationship of both the plaintiff and the defendant to which the act in question applies. As a matter of fact it appears that the plaintiff was a brakeman in a switching crew in the Portland yards of the defendant. There is testimony tending to show that the general duties of the crew were to use the locomotive in question in moving indiscriminately not only cars used in local traffic, but also those used by the defendant in carrying goods destined to and received from other states of the Union. The accident' under consideration, it is true, occurred at the particular moment the plaintiff was engaged in coupling the locomotive to a private car used by the superintendent of a division wholly within the State of Oregon, and as the plaintiff began his night’s work, that
“It would be practically impossible to name any servant of an interstate road who is employed exclusively in the furtherance of purely interstate traffic. All employees who participate in the maintenance or operation of the instrumentalities for the general use of the road, thereby enhancing the utility of such commerce, are necessarily engaged in the work of interstate commerce, within the meaning of the act. The fact that a portion of plaintiff’s work pertained to local traffic would not change the character of his labor in the performance of acts reasonably proximate and essential to the moving of interstate freight and in assistance thereof. ’ ’
In Mondou v. New York, N. H. & H. R. R. Co., 223 U. S. 1 (56 L. Ed. 327, 32 Sup. Ct. Rep. 169, 38 L. R. A. (N. S.) 44), the Supreme Court of the United States said:
“But, of course, it [the act in question] does not extend to any matter or thing which does not have a real or substantial relation to some part of such commerce. * * ‘Therefore Congress may legislate about the agents and instruments of interstate commerce, and about the conditions under which those agents and instruments perform the work of interstate commerce, whenever such legislation bears, or in the exercise of a fair legislative discretion can be deemed to bear,
The test indicated by this utterance of the United States Supreme Court in determining whether the act in question is subject to the federal legislation upon the subject is whether or not the operation of interstate commerce by the defendant is affected by the injury to the employee. Bearing in mind that the crew of which the plaintiff was a member was engaged habitually with the locomotive in question in handling cars of all kinds coming into the yard of the defendant, whether interstate or intrastate, without distinction, it must be apparent that the efficiency of the defendant’s force of employees engaged in interstate commerce was appreciably impaired by the injury happening to the plaintiff. Under the circumstances the two kinds of trade were so intimately and inseparably commingled that it is impracticable to say that at one moment the plaintiff is engaged in one kind of traffic and at the next in the other. . The statute is remedial in its nature and is to be construed liberally.
In Pedersen v. Delaware, Lackawanna & W. R. R. Co., 229 U. S. 146 (57 L. Ed. 1125, 33 Sup. Ct. Rep. 648, Ann. Cas. 1914C, 153), an employee of an interstate railway carrier was killed while carrying a sack of rivets to be used on the morrow in repairing a bridge over which regularly passed both kinds of commerce; and, although he was killed by a train operating wholly within the state where the accident happened, yet it
“That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”
We have already construed our state factory act and the Oregon Employers’ Liability Act as having extinguished the def ense of assumption of risk in cases controlled by those statutes, on the ground that they were' both criminal enactments having a penalty for the violation of their injunctions, and hence that an employee cannot be presumed to have contracted to assume the risk arising, involving a violation of the law by his employer: Hill v. Saugested, 53 Or. 178 (98 Pac. 524, 22 L. R. A. (N. S.) 634); Love v. Chambers Lbr. Co., 64 Or. 129 (129 Pac. 492); Dorn v.
It is further alleged on that branch of the case that the plaintiff was familiar with these- rules, and that, in violation of them, he went upon the footboard of the engine and remained there while the act of coupling the engine and car together was being performed, thus assuming the risk of injury. This statement of defense is practically a repetition of the defense of contributory negligence. The defendant does not allege that the duties of the plaintiff required him to go between the cars during the process of coupling, or to ride upon the footboard, but, on the contrary, affirmatively states that those acts were in violation of the rules and terms of his employment. Assumption of risk relates to the inherent and usual hazards of an occupation as pursued with the means and appliances employed at the time. Where parties are free to contract as to the conditions and regulations under which they will prosecute an undertaking, disregard or disobedience of. rules is referable to negligence, and is not properly classified under assumption of risk.
‘ ‘ The company must not only install an engine that is suitable for the work it is to do, but there is cast
It was not charged that the company was negligent in failing to inspect; hence it was error to instruct the jury on a subject not at issue, although in the abstract the rule of law announced may be sound: Willis v. O. B. & N. Co., 11 Or. 257 (4 Pac. 121); Knahtla v. O. S. L. Ry., 21 Or. 136 (27 Pac. 91); Pearson v. Dryden, 28 Or. 350 (43 Pac. 166); Smith v. Bayer, 46 Or. 143 (79 Pac. 497, 114 Am. St. Rep. 858); Busch v. Robinson, 46 Or. 539 (81 Pac. 237).
“In this law of 1910, to which I have just called your attention, there are two provisions which may or may not have a bearing upon this case, as you shall determine. ’ ’
Many other instances of like nature are found in the charge to the jury, but the one quoted is sufficient for example. As we have seen, the state legislation does not apply to the issue joined, it being controlled by the federal enactments on the subject. Secondly, it was in any event erroneous on the part of
In short, tbe plaintiff stated a case under tbe act of Congress relating to tbe liability of railway carriers for negligent injury to tbeir employees while engaged in interstate commerce, and produced evidence which the jury was entitled to consider in support of his allegation; but the trial was clouded by erroneous instructions as to the law applicable to the matter in hand and in leaving to the jury the matter of determining what legislation was applicable to the case. For these reasons the judgment is reversed. Reversed.