21 Or. 159 | Or. | 1891
This is an action to recover damages for personal injuries, alleged to have been sustained by the plaintiff while in the employ of the defendant. The defense was that the injury was caused by the negligence of a co-servant, and contributory negligence.
While there are some minor questions to which we shall
The complaint charges that the “defendant failed to provide a safe place for the plaintiff to work,” and then proceeds to specify the negligent acts which caused the injury, namely, that the “ defendant negligently and care
This specific statement of the facts is the ground upon which negligence is imputed to the defendant, and upon which the. plaintiff’s right of recovery is based. There is no doubt that the particular acts alleged were intended to touch the place of service, and to show that it was rendered unsafe by reason thereof, but they do not affect the place of employment as the proximate cause of the injury. The place provided for the plaintiff to work was not of itself an unsafe place, and as such could not be the producing cause of the injury. The allegation shows that the negligence which caused the injury was either in the careless running of the locomotive or the failure to regulate its operation which rendered a safe place unsafe to work. As the place itself was not unsafe upon the facts as alleged, nor the proximate cause of the injury, but only rendered unsafe by extraneous acts or omissions, it can constitute no ground of liability. Whether, then, there is a cause of action stated, depends upon conclusions arising from the allegation under immediate consideration. This allegation directly imputes negligence and carelessness to the defendant in causing and permitting a locomotive to run against the car upon which the plaintiff was at work, causing it to move and himself to be thrown down and injured. It- is plain that the negligence intended to be charged, and which was the producing cause of the injury, was due to some fault of the
But in and by what acts or omissions the negligence imputed to the defendant consisted in causing and permitting the locomotive to run against the car upon which the plaintiff was at work, is not disclosed. The facts upon which he predicates his charge of negligence are stated, but it is not certain from the allegation of them in what the alleged carelessness and negligence consisted. If the defendant should by the agency of careless or incompetent servants knowingly operate its locomotive upon the tracks and switches of the yard, and they should negligently run the locomotive against the car or place at which the plaintiff was at work, and injure him, has not the defendant “negligently and carelessly caused and permitted a locomotive to run against a car upon its tracks upon which the plaintiff was at work,” etc., or place and rendered it unsafe to work there, while the defendant permits the locomotive to be operated by such persons? Or if the defendant should fail to provide such rules and regulations for the management of its engines upon the tracks and switches of the yard as were necessary to insure reasonable safety in the places of service upon or about cars upon its tracks that were being-unloaded or repaired, or to adopt such precautionary measures as were needful to notify or apprise those operating its engines of the proximity of the place of employment, so as to render it safe from collision, has not the defendant “negligently and carelessly caused and permitted its locomotive to run against the car” or place at which the plaintiff was at work and rendered it an unsafe place to work without such rules regulating or such precautionary measures
It is upon the other that the plaintiff wholly bases his right of recovery and to which the evidence is directed. It is upon this aspect of it, then, that the sufficiency of the allegation as stating a cause of action must be tested. Carelessness and negligence in causing and permitting a locomotive to run against the place at which the plaintiff was at work, are directly imputed to the defendant whereby he was injured. The language of this allegation is broad enough to admit evidence of all kinds and grades of negligence on the part of the defendant which resulted from causing or permitting the locomotive to run down upon the place where the plaintiff was at work, and thereby rendering it unsafe and causing the injury. This would include the failure to provide such rules or to adopt such precautionary regulations as were needful to regulate or oversee the running of the locomotives upon the tracks and switches of the yard as would render the place and employment reasonably safe. While a servant assumes the risks ordinarily incident to his employment, and all open and visible risks, including the negligence of a fellow-servant, yet he has a right to presume that the master will exercise due care for his safety by providing when necessary all such needful rules for the conduct of its business, or such precautionary measures as will not needlessly expose him to risks not necessarily resulting from his employment. This being
“No authority can be found,” said Pettit, J., “where negligence has been directly charged against the defendant, that a demurrer for want of sufficient facts has been sustained.” (Hildebrand v. R. R. Co. 47 Ind. 399; Ohio etc. Ry. Co. v. Collarn, 73 Ind. 261; 38 Am. Rep. 134.)
The sufficiency of the evidence is a matter that needs to be considered but briefly. But in doing it, it is well to keep in mind that the ground on which the plaintiff bases his right of recovery was that it was the duty of the defendant to see that due care was used to prevent the running of engines down upon the car repairers while they were at work in the yard, and upon cars upon its tracks, and to see that the switching and operating was done in such a manner or so regulated as to preserve as far as possible the safety of the place where the men were at work. It was negligence in this regard in not performing such duty and thereby exposing the plaintiff to injuries not necessarily resulting from his occupation at the place of employment, which is imputed to the defendant. It concedes that the plaintiff assumes the risks incident to the service in which he was engaged, and all open and visible risks, as well as the negligence of co-servants, but it asserts the well established doctrine that he has the right to presume that the master will be vigilant in the use of means and in the adoption of measures adapted to the nature of the business to make the servants reasonably safe in their employment.
Briefly, the evidence showed that the yard had a large number of shops and buildings situated upon it in which a great many men were engaged at work at various occupations but which was cut up by a number of different
There can be no doubt, looking at the whole situation in the light of the evidence, where so many men were employed some of them as the plaintiff, upon or about cars upon the tracks of the yard which was netted with tracks and switch tracks, and almost constantly in use, that it was
That it was necessary under all the circumstances of the case to require the defendant to take some precaution in this regard, will not be denied. The evidence shows that there was some sort of a custom for some one to hang out a flag as indicated to protect the men when so employed upon cars on the tracks of the yard; but upon whom devolved such duty, or that such custom had the force of a rule, is left in darkness. It is even doubtful whether there was such a custom in the sense the term implies as applied to the requirements of the situation; but be this as it may, the question still remains, whether it was sufficient as a precaution or whether any precautions were promulgated or established designed to meet the exigency and dangers of the situation. All this as well as the care exercised by the plaintiff at the time of the injury, are questions for the jury to determine under all the circumstances of the case and not for the court.
The view we have taken eliminates much of the mass of instructions asked and refused, and renders their consideration unnecessary. The reason is, that the complaint is not based upon any negligence of the servants operating the engine not due to the fault of the defendant. In theory, it concedes that the mere work of running an engine appertains to the work of a servant, and excludes the assumption of any liability for negligence occurring in that capacity, or on that account. It charges the negligence by which the plaintiff was injured directly upon the defendant itself and not merely upon its employés. It covers under its broad allegation any negligence of the defendant which rendered the place unsafe, arising either from carelessness or incompetency of the servants operating the locomotives with notice of such faults or for the want
Upon this record, we find no error in the other instructions excepted to that would authorize the reversal of the case. It is also assigned as error that the motion to dismiss the action, and to strike out the evidence for the plaintiff on the ground that there was but one party to the action, should have been sustained. It seems that the allegation that the defendant was a corporation was inadvertently omitted. After the plaintiff had introduced his testimony and rested, the defendant raised the question suggested by his motion, which the court overruled, except as to there being but one party to the action, but allowed the plaintiff to amend by inserting the allegation of incorporation. As the defendant did not desire to make any issue upon its incorporation, but confessed it openly, at the same time offering to interpose a new answer raising different issues,
Nor was there error in refusing to remove the cause to the United States court. The insertion of the allegation being merely formal, is not within the reason of the cases cited by the appellant in which the defendant’s right to remove is preserved. The defendant did know that the “ action was brought against it, and not against something else,” for it appeared as a corporation and filed its answer to the merits by its agent.
Nor was there any error in refusing to submit to the jury several special findings which were presented in writing. The giving or refusal of them is in the discretion of the court. In Swift v. Mulkey, 14 Or. 59, the court says, by Thayer, J.: “The refusal of the court to direct special findings as requested by appellant’s counsel was wholly discretionary. This court will not undertake to review am-'
Upon the whole we think there is no error disclosed by the record which authorizes a reversal of the case, and the judgment must be affirmed.