172 P. 101 | Or. | 1918
Learned counsel for defendant has stated concisely the basic questions which arise in the examination of this case, namely: (1) Was de
“There is a reciprocal duty existing between the railroad company and the employee at work on the track, the one being that the railroad company must give signals where the nature of the locality requires, and in case there is danger of injuring the employee, to use diligence to prevent it, and the other being that the employee must keep an outlook and seek safety from any trains that may be passing.”
One ground of objection seems to have been that there was no proof of proprietorship in the person who assumed to dedicate the plat, and no evidence that the street had ever been legally open to public travel. It would have been obviously improper for the court to have turned aside from the main issues in the case to engage in an investigation as to the technical legality of the dedication of the street. It was sufficient to show that it was a street de facto by having been platted as such and used by the public.
The further objection was that as this was not an action for injury at a crossing, and that it was not claimed that deceased was killed at the crossing, the evidence was irrelevant. It is not probable that the evidence had any effect on the verdict, but it did tend to some extent to show a disregard and heedlessness of the rights and safety of the public, including plaintiff, if the train was rushed past the station grounds and across two streets in a populous community at a high and unusual rate of speed, and without any signal being given to warn persons about the grounds or who might be using the highways, that they were in possible danger. We do not consider the fact that there was not an ordinance prescribing a particular rate of speed for trains passing through the town, as having the effect of a license to trains to run at any rate of speed that its engineer might choose. Such ordinances are but the expression of the corporate judgment of the maximum speed that may be employed without negligence. Whether a disregard of them constitutes negligence per se or is merely prima facie evidence of negligence is a question upon which courts differ, but irrespective of any ordinance upon the subject it is no doubt the duty of a railway company operating its trains in a populous village or near a station where the public or its employees are wont to congregate, to so regulate their speed and give such signals as experience has demonstrated to be most likely to conduce to the safety of such persons and
The third assignment of error relates to the admission of testimony regarding the alleged custom of defendant’s work trains to come in upon the passing track, and has already been adverted to.
*367 “The pecuniary loss is not dependent upon any legal liability of the injured person to the beneficiary’s. That is not the sole test. There must, however, appear some reasonable expectation of pecuniary assistance or support of which they have been deprived. Compensation for such loss manifestly does not include damages for grief or wounded feelings. * * A pecuniary loss in damages must be one which can be measured by some standard. * * Nevertheless, the word as judicially adopted is not so narrow as to exclude damage for the loss of services of the husband, wife or child, and when the beneficiary is a child, for the loss of that care, counsel, training and education which it might, under the evidence, have reasonably received from the parent and which can only be supplied by the service of another for compensation. * *
“It is not beyond the bounds of supposition that by the death of the intestate, his widow may have been deprived of some actual customary service from him capable of measurement by some pecuniary standard, and that in some degree that service may include as elements, ‘care and advice.’ ”
The 6th assignment of error appears to have been waived and the 7th relates to the motion for a directed verdict. The subject matter of this assignment has already been covered by what is said in respect -to assignments 1, 2 and 3.
“Before plaintiff would be entitled to recover any damages at your hands, she must prove two things:
“First — She must prove that at the time of the accident in which her husband was killed, he was engaged in doing some work for the defendant, which work was in furtherance and aid of interstate commerce.
*368 “Second — She must prove that her husband was killed through negligence on the part of the railroad company. ’ ’
The court gave this, hut added:
“It is not necessary in order to bring the case within the law, that the deceased should have been engaged in active work at the very instant he was killed. If his general employment was interstate commerce, and he had come upon the premises of the defendant necessarily and at a customary and proper time to report for work, his presence there might be an incident to his interstate work, and if he was there under such circumstances for the purpose of taking up his work, he might be within the law, even though it were a few minutes before his active work was to commence.
‘ ‘ Second — She must prove that the death of her husband was wholly or partly caused by negligence on the part of the railroad company.”
We see no error in the modification. It is in line with North Carolina R. Co. v. Zachary, 232 U. S. 248 (Ann. Cas. 1914C, 159, 58 L. Ed. 591, 34 Sup. Ct. Rep. 305, 9 N. C. C. A. 109); St. Louis, San Francisco & Texas Ry. Co. v. Seale, 229 U. S. 156 (Ann. Cas. 1914C, 156, 57 L. Ed. 1129, 33 Sup. Ct. Rep. 651), and Louisville & N. R. Co. v. Walker, 162 Ky. 209 (172 S. W. 519).
“In arriving at the question as to whether the deceased at the time of the accident was doing some work for the defendant in furtherance and aid of its interstate commerce, it is not sufficient that the deceased, during his working hours, generally performed work of that nature, hut it must appear from a preponderance of the evidence, that at the particular time of the accident he was then engaged in some work for the defendant, which work was assisting the defendant in its interstate commerce business.”
“If, therefore, you find that at the time of the accident the deceased was not doing any work for the defendant, but was walking along defendant’s track for the purpose of performing some errand personal to himself, or for the purpose of unnecessarily and unreasonably idling away the time until his working hours commenced, then the deceased would not, at the time of the accident, have been engaged in work for the defendant in furtherance of its interstate commerce business, and the plaintiff would not be entitled to recover any verdict at your hands in this connection. ’ ’
The instruction as given was fully as strong as the facts warranted. We have looked in vain for any evidence that the deceased was “idling” away his time. He was either waiting for work to begin or going to where he thought it would begin, as a prompt and industrious workman ought to have done. The term “idling” is so nearly synonymous with “loafing” as to be almost a term of reproach and assumes a condition not disclosed by the testimony. That he chose a dangerous place in which to wait for work to begin, or chose a dangerous route to his work, might and would be negligent acts, but they would not necessarily defeat a recovery, if the element of negligence by the defendant was established. Given the usual
Assignment No; 11 is practically waived.
“In arriving at the question as to whether the defendant was negligent, I instruct you that as a matter of law a railroad company has the right [and is expected] to run its trains at high rates of speed, and unless there are some [exceptional] circumstances which would cause a reasonably prudent person to run a train at a low rate of speed, a railroad company has the right to run its trains at as high a rate of speed as it desires.”
The instruction as asked was technically correct, and the modification does not alter it in substance and was less likely to he misleading to a jury. In addition to the language above quoted the court added:
“And the rate of speed is not of itself negligence, but it should regulate the rate of speed with due and reasonable regard to the location and circumstances and to the danger, if any, which may occur to the life and limb of its employees and others who may be necessarily or lawfully along the tracks; and whether the rate of speed was negligence under the circumstances is a question of fact for you.”
With this addition the instruction constituted an admirable and temperate statement of the law, which deserves commendation for its clearness.
“The law says that when one man goes to work for another he assumes, as part of his contract of employment, all of the risks which are ordinarily incident to the business in which he engages. In other words, a section laborer, upon going to work for a railroad company, assumes all of the risks of being struck by moving trains upon the tracks of the railroad company, run in the usual and ordinary way, this being one of the risks incident to the business in which he engages. If, therefore, you find from the evidence that plaintiff’s husband was killed by a train run over the tracks of the railroad company in the usual and ordinary way in which defendant’s trains were run, then I instruct you that the accident to plaintiff’s husband was a result of one of the risks which he assumed in going to work as a section laborer, and that plaintiff cannot recover in this action.”
The instruction in a general way states the law, although the statement that if the deceased was killed by a train run over the track of the railroad company in the usual and ordinary way, which defendant’s trains were run, he would be held to have assumed the risk, is subject to the criticism that if defendant habitually neglected to give proper warning signals, or otherwise negligently managed its trains, the deceased would be held by such instruction to have assumed the risk of such habitual negligence, which is not the law except in those instances where the injured party is shown to have had previous knowledge
“The law says that when one man goes to work for another, he assumes the risk of an injury arising from the dangers naturally incident to his employment, and the risk of those extraordinary dangers, if any, which are apparent or which he knows and appreciates, but this does not imply that he also assumes those additional risks, if. any, arising by the negligent act, if any, of the master, after he has entered upon the performance of his work and of which he has no knowledge and by reasonable intendment could not be held to have known. * *
“Moreover, if the employee voluntarily continues without complaint or objection, after knowledge or notice of risks arising subsequent to the employment and during the course of the service,, by reason of the employer’s negligence, or otherwise, under conditions by which the employee is chargeable with an appreciation of the danger and where ordinary prudence would require of him a different course, the employee takes upon himself the responsibility entailed by the risk he continues to incur, that is, he assumes such a risk. If the accident in which the deceased met his death was the result of a risk deemed by the law as stated to be assumed by him, then plaintiff could not recover and your verdict should be for the defendant.”
Assignment No. 15 is waived.
“I instruct you as a matter of law that plaintiff’s husband was guilty of some degree of negligence in walking on and along the railroad track without keeping a vigilant lookout for the approach of trains by*373 both looking and listening, as it was his duty to do. When a person walks along a railroad track longitudinally he must keep a constant lookout both forward and back, and exercise his faculties of sight and hearing for his protection.”
The instruction as given correctly states the law and does not differ substantially from the original request. The court is not bound to give.an instruction in the language of the request, if the substance of the request is embodied in it as given. In a case of this character where a rule obtains approximating comparative negligence, the degree of negligence of each party is a factor that suggests itself to the judicial mind and the change made by the presiding judge was natural under the circumstances.
“If you find that such negligence on the part of the plaintiff’s husband was the proximate cause of the accident, then plaintiff would not be entitled to recover any damages from defendant.”
For the word “proximate” the court substituted “sole” in the above. It would have been better to have given the instruction as requested, but the general instruction of the court upon proximate cause was so full and definite, the jury could not have been misled.
Other objections to instructions of the court are discussed in the brief but all of them are simply elaborations of the theory contended for by plaintiff, namely: that the court did not correctly state and define the term “proximate cause”; that there was no evidence of negligence on the part of defendant; and that there was no evidence of a failure on the part of defendant to give timely warning signals. As to each of these we are of the opinion that there was evidence which justified the instruction, although if this court sat as a trier of the fact it might differ from the jury as to its weight. The appeal has been so fairly and ably presented and the questions raised so close and difficult, it would be a pleasure to consider each in detail, but the length of this opinion — already far beyond the writer’s customary limit — precludes further discussion, although each assignment has been carefully considered.
Finding no reversible error the judgment is affirmed. Affirmed.