95 P. 193 | Or. | 1908
delivered the opinion of the court.
It is contended by plaintiff’s counsel that an error was committed in granting the nonsuit. The consideration
The plaintiff, as a witness in his own behalf, testified that it was necessary to force the cars back from six inches to two feet, so that the train could be uncoupled; that the chain on the Tower coupler at the north end of the third car, as it then stood on the track, had been repaired and consisted of only two constituent parts, one of which was a short, round, cold-shut link; that when he took hold of the lever, and gave the signal slowly to slacken the tension, the movement of the train caused the lever to tighten and caught his hand so that he could not withdraw it, and that such retention could not have occurred if the chain had been of the regulation length; that, when the train was started, he partially stumbled, and was unable, with his left hand, to give a signal to check the motion, but when his arm was struck he hollowed and the motorman halted; and that in the few seconds after his hand was caught, and before his arm was injured, he for the first time noticed the defect in the chain. The plaintiff further testified that the empty cars which he tried to uncouple must have been brought into the yard the day before he was injured; that, upon the arrival of a train at such place, the cars are supposed to
A. A. Benjamin testified that on the day of the injury he was employed by the defendant as a brakeman in the yard, and was stationed by the plaintiff on the loaded cars when they were “kicked” back on the main line, and that he set the brakes on these cars as hard as he could, but the friction was insufficient to retain them where they were left, and they rolled north, and collided with the empty cars that were then being moved over the switch.
2. It was incumbent upon the defendant to exercise diligence to furnish to its servants reasonably safe appliances, and, in the absence of any notice thereof, the plaintiff had the right to assume that this duty had been fully discharged by the master: Johnston v. Oregon Short Line Ry. Co. 23 Or. 94 (31 Pac. 283); Geldard v. Marshall, 43 Or. 438 (73 Pac. 330); Texas & Pac. Ry. Co. v. Archibald, 170 U. S. 665 (18 Sup. Ct. 777: 42 L. Ed. 1188).
The judgment will therefore be reversed, and the cause remanded for a new trial. Reversed.