Doyle v. Southern Pac. Co.

Mr. Justice King

delivered the opinion of the court.

1. At the close of the testimony offered on behalf of plaintiff, defendant filed a motion for a nonsuit, alleging, as grounds therefor, that plaintiff had not proved a cause sufficient to be submitted to the jury, and that there was no evidence of any negligence on the part of the defendant, but that plaintiff was guilty of negligence contributing thereby to the cause of the injury, which motion was denied by the court. This was followed by the introduction of testimony on the part of defendant, and at the close of all testimony offered at the trial counsel for defendant renewed their motion for a nonsuit, and in addition thereto interposed a motion for a directed verdict in defendant’s favor, based upon substantially the same grounds, both of which were overruled. This presents the question as to whether, taking the evidence as a whole, sufficient facts were proved to entitle the cause to be submitted to the jury. The testimony, together with the admitted facts bearing upon the points raised by the motion, when viewed in the light of inferences most favorable to plaintiff which the jury was entitled to give it (Kunz v. Oregon R. R. & N. Co., 51 Or. 191 , 205: 93 Pac. 141 : 94 Pac. 504 ), established the following facts:

2. Plaintiff, at the time of the accident, was 34 years old, in good health, and for 23 days had been and was in the employ of the defendant as “timekeeper, and as a general man around, going for orders, and writing the amount of work done through the day, class of work,” etc. It also appears to have been his duty, as assistant to the person in charge, to see that the men kept at work. Until he entered defendant’s employ his experience, in connection with railways, was limited to that of conductor on *510 one of the electric lines in Chicago. At the time of the casualty he had worked about three days in the immediate vicinity thereof as timekeeper, etc., of a “gang” of 40 men, being at a place called “Divide,” on the boundary line between Douglas and Lane counties. At this point there was sidetracks covering a distance of a half-mile or more, used for the purpose of facilitating the operation and passage of trains running between Portland and San Francisco, near the south end of which was a turntable. The men were at various places along the tracks in a southerly direction from the main switch for a distance of about 1,100 feet, and, by the aid of what is termed “push cars,” were distributing gravel along and between the tracks and rails, pushing the gravel under the ties* and doing various other kinds of work connected with the improvement of the tracks. It was essential to the accuracy of “timekeeping” that plaintiff frequently count the men to ascertain if any were missing, requiring a constant watch over the employees, who by reason of their occupation were continuously moving from place to place, making it incumbent upon plaintiff, while thus engaged, to move on and about the tracks.

Plaintiff went to work about 7 o’clock on the morning of the 24th, at which time a freight train arrived from the direction of San Francisco. This train was drawn by two engines, one of which was what is known as a “helper,” and stopped for the purpose of leaving the “helper” at that place. The helper engine was uncoupled and moved onto the sidetrack. The train then proceeded northerly towards Portland, while at the same time the helper engine, for the purpose of being reversed, moved southerly in jthe direction of the turntable. Plaintiff at the time had not noticed the extra engine, and, having no knowledge of its being left there, or of its being on the sidetrack, stepped upon the sidetrack and proceeded to walk southerly thereon, but before so doing looked in *511 each direction, at which time he could not see the engine; the track being clear. Owing to the slight curvature in the track and the moving train, his vision in the direction from which the engine came was limited to a distance of about 200 feet. In this connection plaintiff, on cross-examination, further testified:

Q. “Why didn’t you turn around and look?”

A. “I could see the way I did.”

Q. “Could you see all the way up to the switch?”

A. “Not when the freight was there.”

Q. “How far up could you see?”

A. “There was a curve there.”

Q. “How far could you see?”

A. “I don’t know the exact distance.”

Q. “You could see 200 feet, couldn’t you?”

A. “Perhaps.”

Q. “Don’t you know that you could ?”

A. “Not the exact feet I don’t.”

Q. “Could you see when you turned your head sidewise ?”

A. “I turned partly around. Partly my head and partly my body.” '

Q. “Did you turn your body?”

A. “I don’t know exactly. I turned enough to know there was nothing coming.”

Q. “When you looked, Mr. Doyle, whenever you did look, there was no engine in sight?”

A. “No, sir.”

Q. “What made you look?”

A. “I was looking around. I was always taking precautions, looking around. I looked around.”

Q. “You didn’t expect the engine to come down the track? You never heard of one coming down before?”

A. “No, sir.”

Q. “Well, what made you look?”

A. “That is, only I looked around, everywhere.”

3. The space between and on the outside of the tracks at that time was in such condition that he could not well have walked there, leaving the track, on which he was *512 run over, the only reasonably convenient place in which to be while in performance of the duties devolving upon him. The train on the main track had started toward Portland; its arrival and presence had disconcerted his count of the men by scattering them, leaving them on different sides of and at various points along the tracks, and it was for the purpose of resuming his count and general lookout for the employees that plaintiff was proceeding upon the track in the vicinity of and among the men. In his three or four days’ service at that place, plaintiff had seen no “helper” engine on the switch, and as before stated, did not know one was to be run upon it at that time. Before starting to walk down the sidetrack he looked to see if any trains were coming in either direction, and after looking around “everywhere” a time or two, as he was in the habit of doing, to see if any train was in sight, but seeing none, and after walking a few steps, the helper engine, moving at the rate of between 20 and 40 miles an hour, without those in charge seeing any one upon the track, and without ringing the bell or otherwise giving any alarm, backed down the sidetrack in the direction in which plaintiff was moving, running over him and injuring him in such a manner as to require the amputation of both his legs above the knees and near the hips.

It is ably argued by defendant’s counsel that, notwithstanding the testimony tends to establish the facts above stated, plaintiff is not, as a matter of law, entitled to recover. In this connection it is maintained, among other things, that plaintiff at the time of receiving the injury was not where his employment called him, that he should have been on the side of one of the tracks, or between the tracks, out of the way of danger, and that, the accident having occurred on a sidetrack at a country siding, negligence on the part of the company cannot be predicated upon the rate of speed at which the engine was moving, or of the failure to provide or keep a sufficient *513 lookout, or to give any signal of its approach. This position, however, is fully met and decided adversely to defendant’s contention in Rush v. Oregon W. P. Co., 51 Or. 519, 526 ( 95 Pac. 193 .) In that case it was urged that the plaintiff therein could have avoided the accident by being on the other side of the train; the work there, as here, required the exercise of judgment and discretion, and it was held a question for the jury to say whether defendant was negligent in selecting the side of the train, the exercise of which choice occasioned the injury.

In the outset of defendant’s main contention it will be noted that when the accident occurred the engine was backing down upon the sidetrack, not upon the main line, and that plaintiff was not in any sense a trespasser, but was working at the time and place where his duties called him. Each of these features have an important bearing on whether defendant was negligent, and the degree of care required of each of the parties hereto. As to whether plaintiff, in walking where he did, acted as a reasonable, prudent, and industrious man, engaged in the faithful performance of his duties, should have done, and whether the acts complained of constituted negligence on the part of the defendant, such as the rate of speed, failure to ring the bell, and lack of diligence in providing for and keeping a proper lookout for and on behalf of employees on and in the vicinity of the track, we think was for the jury to determine. The principles covering the questions thus presented were fully considered and determined to the above effect in the following decisions, and authorities collated therein. Rush v. Oregon W. P. Co., 51 Or. 519, 526 ( 95 Pac. 193 ); Hill v. Saugested, 53 Or. 178, 184 ( 98 Pac. 524 ); Russell v. Oregon R. & N. Co., 54 Or. 128 ( 102 Pac. 619 ); Abel v. Coos B. R. & E. R. & N. Co., 54 Or. 188, 192 ( 102 Pac. 796 ); Bigelow v. Columbia Gold Min. Co., 54 Or. 452, 458 ( 103 Pac. 56 ); Laury v. Northern Pac. Ter. Co., 55 Or. 244 ( 105 Pac. 881 ); Norwich Ins. Co. v. Oregon R. R. Co., 46 Or. 123, 132 ( 78 Pac. 1025 ).

*514

4. Owing to the large number of men, and dangers incident to ‘.frequent switching of trains among them, as claimed by defendant, and in view of the fact that it was often necessary to back the engine over the tracks, by reason of which the tender obstructed the view of the engineer and fireman in charge, the question whether an outlook should not temporarily have been maintained by some one upon the tender of the engine or elsewhere in the immediate vicinity of the employees, for the purpose of avoiding accidents, for the few days the gang of men was working there, was for the jury, and comes within the principles enunciated on this subject in Laury v. Northern Pac. Ter. Co., Russell v. Oregon R. R. & N. Co., above cited, and Schleiger v. Northern Pac. Ter. Co., 43 Or. 4 (72 Pac. 324 .)

5. This brings us to a consideration of plaintiff’s averred negligence. The question to be determined in that connection is whether the proximate cause of the injury was occasioned by defendant’s negligence, or whether it resulted from the negligence of plaintiff. “The proximate cause,” says Mr. Buswell, in his work on Personal Injuries (2 ed) Section 97, “is to be defined generally as the cause which leads to, or might naturally be expected to produce, the result.”

6. The evidence tends to show that defendant was running between 20 and 40 miles an hour, and the jury could, under the statements of the various witnesses on the subject, have found the speed to be the maximum stated. It further appears that the bell was not rung, nor the whistle sounded, indicating that the plaintiff was not observed upon the track, and disclosing the necessity of defendant providing for a special lookout in such circumstances. Plaintiff’s vision down the track, in the direction from which the engine came, was limited to about 200 feet. But a few seconds elapsed after plaintiff looked in that direction until he was struck. The engine’s usual *515 speed under such circumstances, as testified to by witnesses for the defense, was from five to eight miles an hour. Taking the maximum speed allowed when switching on sidetracks, as in this instance, and in view of the number of men scattered along and in the vicinity thereof, this maximum would seem a reasonable limit. The time required to run 200 feet at such a rate would be approximately 17 seconds, or if going 40 miles an hour, between three and four seconds. Had the time been 17 seconds, it is probable that defendant, under the showing made, would have looked at least once, if not oftener, during that interval, and accordingly would have noticed the engine approaching, and thereby escaped injury. But with the high speed testified to, in order to have been reasonably safe, he would have been required to look every two or three seconds, making it necessary for him to stop work during the switching and passing of trains in that vicinity, and his usefulness thereby proportionately impaired. If 40 miles an hour under such circumstances, or even half that rate, were reasonable, then it might have been negligence in plaintiff not to have ceased work, but, as indicated, such rate was not within the rules or custom of defendant.

7. Plaintiff, presumably, was desirous of retaining the good will of his employers, fulfilling without unnecessary interruption the duties assigned to him; and therefore, while working there and in that vicinity, entitled to be upon the track, with his safety provided for. Defendant’s engine was where it had a right to be, and plaintiff was where his duty called him, and he had a right to assume that defendant’s employees in charge of the engine or trains would properly perform the duties resting upon them, and not needlessly or recklessly expose him to danger by the improper movement of cars or engines in their charge, or under their control. Sorenson v. Oregon W. P. Co., 47 Or. 24, 32 ( 82 Pac. 10 .)

*516

8. An employee of a railway company assumes all reasonable risks incident to his employment, but since the adoption of the fellow-servant act, upheld in the last case cited, he does not necessarily assume all risks resulting from the negligence of his co-employees; and, in the event of such negligence, if the proximate cause of an injury occasioned thereby, he is entitled to recover.

9. The burden of proving contributory negligence was on the defendant (Jackson v. Sumpter Valley Ry. Co., 50 Or. 455 , 458: 93 Pac. 356 ), and as held in Elliff v. Oregon R. & N. Co., 53 Or. 66, 76 ( 99 Pac. 76 ), whether the injury to the plaintiff would have happened but for the negligence of the defendant in failing to keep a proper lookout for, or to warn him, or on account, of the recklessness of its agents, or whether it was due to the plaintiff’s neglect, is, under the most favorable view to the defendant, problematical, “and in cases of doubt as to which of several probable causes produced a hurt, the case should be submitted to the jury for their determination of the question.”

10. The true test as to whether a case should be taken from the jury is often said to be whether, if the jury should find for the defendant, it would be incumbent upon the trial court to set the judgment aside and grant a new trial. While this is the usual way of expressing the rule, it means but little, for the same test must be applied in each instance, and this test is as stated in McLeod v. Chicago & N. W. Ry. Co., 104 Iowa, 140 , 142 ( 73 N. W. 615 ), in which it is said:

“It is also well settled that when, in view of all of the facts and circumstances, the question of negligence is one as to which men may honestly differ, the case is one for the jury; and this is true also when the facts are not in dispute. It is only when the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence becomes a question of law for the determination of the court.”

*517 Also, Hedin v. Railway Co., 26 Or. 155, 161 ( 37 Pac. 540 ); Hecker v. Oregon Ry. Co., 40 Or. 6 ( 66 Pac. 270 ); Palmer v. Portland Ry. L. & P. Co., 56 Or. 262 ( 108 Pac. 211 ); Donahoe v. Portland Ry. Co., 56 Or. 58 ( 107 Pac. 964 ); Railway Co. v. Ives, 144 U. S. 417 (12 Sup. Ct. 679: 36 L. Ed. 485 ); Railroad Co. v. Powers, 149 U. S. 45 (13 Sup. Gt. 748: 37 L. Ed. 642 ); Stewart v. Sixth Ave. R. Co. (C. C.) 45 Fed. 21 ; Boston & M. R. Co. v. McDuffey, 79 Fed. 934, 940 ( 25 C. C. A. 247 ); Illinois Cent. Ry. Co. v. Jones, 95 Fed. 370, 387 ( 37 C. C. A. 106 .) Plaintiff may, in fact, have been negligent, and the jury might have so found, but under the circumstances disclosed it cannot be imputed to him as a matter of law merely because had he looked once more he would have seen the engine approaching; for the proper performance of his duties at that particular time may have directed his attention elsewhere (Gentzkow v. Portland Ry. Co., 54 Or. 114 , 124: 102 Pac. 614 ), and “in determining whether an employee has recklessly exposed himself to peril, or failed to exercise the care for his personal safety that might reasonably be expected, regard must always be had to the exigencies of his position, indeed, to all the circumstances of the particular occasion.” Kane v. Northern Central Ry., 128 U. S. 95 (9 Sup. Ct. 16: 32 L. Ed. 339 .)

A large number of authorities are cited in support of defendant’s position, but an examination thereof discloses that, owing to the difference in the circumstances surrounding the accident in each instance, but few are in point. To illustrate, in the case of Cogswell v. Oregon & C. R. R. Co., 6 Or. 417, 425 , deafness was held to have been the primary cause of the accident; McBride v. Northern Pac. R. R. Co., 19 Or. 64 ( 23 Pac. 814 ), is to the effect that one, before crossing a track, must look and listen, and is not analogous to the case at bar, either in facts or complications presented; Smith v. City Ry. Co., 29 Or. 542 ( 46 Pac. 780 ), is cited as holding that negligence is presumed. *518 This case, however, does not go to that length; it merely holds on this point that, from a state of facts established, negligence could be inferred or be presumed, thus manifestly not in point. In Brunell v. Southern Pac. Co., 34 Or. 256 ( 56 Pac. 129 ), the accident occurred through the negligence of the plaintiff, coupled with the gross negligence of a fellow servant, for whose acts defendant, under the law then in force, was not liable. Hecker v. Oregon R. R. Co., 40 Or. 6 ( 66 Pac. 270 ), so far as it has any application to the questions here involved, is against defendant’s contention. The great majority of the cases cited from other states, are where the accidents occurred at crossings, or where the party injured was a trespasser, or strangers traveling along, or on the track for their own convenience, or instances where the party injured was in no way connected with the defendant, and had no occasion to be upon the railway track; and there is a vast difference between cases of that class and the one under consideration. The same strictness to look and listen is not required of railway employees upon and working along a railroad track as is demanded of persons crossing the railway, or those upon the track as trespassers, and not in the railway’s employ. As said by Mr. Chief Justice Kinne, in referring to the plaintiff in McLeod v. Chicago & N. W. Ry. Co., 104 Iowa, 140 , 144 ( 73 N. W. 615 ):

“Had he been a mere trespasser or a stranger to the defendant, passing along the track in a place of danger for his own convenience, there can be no doubt that his failure to look would, under such circumstances preclude his recovery. But the same rule does not obtain as to an employee who is engaged in the discharge of his duty; that is, it cannot be said that an employee, passing along the side of the track in the performance of a duty enjoined upon him, is in duty bound to look and listen for an approaching engine or train to the same extent, or with the diligence of a traveler at a crossing.”

*519 And in discussing the facts in that case, which in part are analogous to those presented here, it is also observed:

“Can it be said that honest men, considering all of the evidence fairly, would reach but one conclusion, and that, that defendant was not negligent, or, if it was, that plaintiff was guilty of contributory negligence? It occurs to us that there was much evidence tending to establish the defendant’s negligence. It was, as the evidence shows, the duty of the employees operating the switch engine to be on the lookout for employees on or near the tracks, and to warn them of the approach of the engine by ringing the bell, blowing the whistle, or in some other manner to notify them of its approach. The bell was not rung, nor the whistle sounded, nor was the plaintiff in any way warned of the approach of the engine. In view of this and other evidence, it cannot be said that honest men must reach the conclusion that the defendant was not negligent. Therefore the question of the defendant’s negligence was not one of law for the determination of the court.”

See, also, Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 417 (12 Sup. Ct. 679: 36 L. Ed. 485 ); Palmer v. Portland Ry. Co., 56 Or. 262 ( 108 Pac. 211 ), decided at this time, where the same point is considered.

In Bucklew v. Railway Co., 64 Iowa, 608 ( 21 N. W. 105 , 106), the court, in referring to a railway employee engaged in the performance of his duty, observes that, if “absolutely required to look and listen for approaching trains or unexpected movements of the train in his charge, his usefulness would be greatly impaired. We think the question as to the duty of such employee to look and listen for the movements of trains before he steps or walks on the track must be left for the jury to determine.” So in Baltimore & O. S. Ry. v. Peterson, 156 Ind. 364, 373 ( 59 N. E. 1047 ), the court observes:

“The rule which exacts of a traveler or other person about to cross a railroad track the caution to look in both directions, and also to listen in order to ascertain if a train is approaching, is not applied in all its strictness to *520 workmen engaged in the line of their duty at work upon a railroad track. * * Appellee’s intestate is shown to have been rightfully upon appellant’s track at the time of the accident, engaged as its servant at his post of duty, and he had a right to assume that appellant, in the movement of its trains, • would be controlled by the requirements of the ordinance in controversy. The mere fact that he was upon the track in the discharge of his duty, and may have failed to look and listen for approaching trains, did not, under the law, constitute negligence per se. Such omission may or may not be negligence under the particular circumstances of a case, but of this fact the jury must be the judge.”

To the same effect see Farley v. Chicago, R. I. & P. R. Co., 56 Iowa, 337 ( 9 N. W. 230 ); International & G. N. Ry. Co. v. Villereal, 36 Tex. Civ. App. 532, 536 ( 82 S. W. 1063 ); Jordan v. Railroad Co., 58 Minn. 8 ( 59 N. W. 633 : 49 Am. St. Rep. 486 ); Ominger v. Railroad Co., 4 Hun. (N. Y.) 159.

A few of the cases cited from other jurisdictions appear to sustain appellant’s contention, but, being at variance with the well-settled principles upon the subject heretofore announced by this court, they must be disregarded. The case of Morris v. Boston & Maine R. R., 184 Mass. 368 ( 68 N. E. 680 ), appears to support defendant’s theory herein. In that case the plaintiff, in order to perform the duties devolving upon him, was required to work in such position and locality as to be in danger from passing trains. Another place less- dangerous, within a few feet of the point where struck, was possible, as in this case and in Rush v. Oregon W. P. Co., 51 Or. 519, 526 ( 95 Pac. 193 ), and as appears in practically all cases of this character; but the decision is not predicated upon that ground alone. In referring to the accident in the case of Morris v. Boston & Maine R. R. the court observes:

“Only a moment after he looked both ways, the engine, with the snowplow, came round the curve without sound *521 ing the whistle or ringing the bell, coasting down a grade of sixty feet to the mile, with steam shut off, and he was struck by it or by the snow it threw off.”

And, notwithstanding the evidence disclosed that the plaintiff had looked immediately before, and saw no train, the court held him guilty of contributory negligence, and, because he was not looking at the moment when the train suddenly came in sight, reversed the judgment entered in his favor. In other words, to. have been free from such negligence and entitled to recover, the plaintiff, whose work required him to be in a stooping posture, would necessarily have been compelled to do no work at all, but to stand patiently from morning until night, watching for trains; the absurdity of which is obvious. The holding in that instance, based upon precedents formerly established in that state, as well as decisions of like import cited from one or two other jurisdictions, are not only at variance with the decided weight of authority, but so clearly inconsistent with the fundamental principles of reason and justice that they should be deemed of little, if any, weight as precedents, outside of the jurisdictions where rendered. In any event, the decisions of this court uniformly hold to a different view. In the light of all the circumstances surrounding the casualty in question, as presented by the record, we are of the opinion that ample testimony was adduced to entitle the cause to be submitted to the jury. The motions for nonsuit and to direct a verdict were properly denied.

11. It is argued that the court erred in permitting the plaintiff, during the progress of the trial, to amend his complaint by adding to the third paragraph the clause: “And negligently and carelessly failed and neglected to keep a sufficient or any lookout for persons upon the track, and especially for this plaintiff and other employees likely to be upon the track.” The averments preceding it were to the effect that defendant was negligent in caus *522 ing its engine to be run at an unsafe and unnecessarily high rate of speed, “and carelessly and negligently failed to give the plaintiff, or the other men employed in the vicinity, any signal or warning of the danger or the approach of the said engine.” This amendment is not a new or additional cause of action. A cause of action consists of that which produces the necessity for bringing action. Words and Phrases, vol. 2, p. 1015. The primary cause for the institution of the proceeding here was the injury occasioned by the alleged negligence of defendant; and in addition to making the averments respecting negligence more definite and certain, this averment merely supplements the cause of action previously alleged with the charge of another act of negligence, without in any wise changing the original cause of action, or adding another thereto, the granting of which was within the discretion of the trial court. In this holding we are sustained by the following decisions upon the subject: Osgood v. Osgood, 35 Or. 1, 7 ( 56 Pac. 1017 ); Davis v. Hannon, 30 Or. 192 ( 46 Pac. 785 ); Jester v. Lipman, 40 Or. 408, 410 ( 67 Pac. 102 ); Ridings v. Marion County, 50 Or. 30 ( 91 Pac. 22 ). The foregoing considerations dispose of assigned errors 1 to 15 inclusive.

12. The sixteenth error complained of was in the refusal of the court to instruct, as requested that, “even if the fireman or engineer had seen Doyle standing in the track, they would have the right to assume that he would get out of the way in time to avoid being struck.” We think the instructions given were sufficiently clear upon this and other points presented, and that no prejudice resulted in the refusal to give the instruction. The instructions given are as favorable as defendant could expect under the law, and whether any part thereof was erroneous as respects plaintiff’s rights is not involved, and we express no opinion thereon.

13. The seventeenth assignment of error concerns the *523 refusal of the court below to set aside the judgment and grant a new trial. The first point intended by this assignment relates to certain remarks alleged to have been made by plaintiff’s counsel in the oral argument before the jury. The record contains affidavits of one of the attorneys for defendant in support thereof, with countervailing affidavits by one of the opposing counsel. The issues thus presented were considered by the trial judge, who heard the argument, and who was therefore in better position than this court to determine the sufficiency thereof. We find nothing in the record which would justify us in holding that the court abused its discretion in denying the motion on that account; and the same may be said concerning the point raised by the motion in reference to the juror complained of: State v. Powers, 10 Or. 145 ( 45 Am. Rep. 138 ).

14. The next and last error assigned concerns the alleged excessive judgment, which it is insisted should be reviewed by this court. It has been settled by numerous decisions in this jurisdiction that damages assessed by a jury will not be disturbed on appeal.

15. After hearing the entire trial, carefully considering the affidavits presented in support of the motion for a new trial, and finding that in its opinion the jury was not acting from the standpoint of passion or prejudice or any undue influence of any kind, the trial court was of the opinion that the damages allowed were excessive, but denied, as it had a right to do, the motion for new trial, on condition that plaintiff remit all in excess of $35,000, which was done.

16. It is settled in this State that error cannot be predicated upon a refusal of a trial court to unconditionally set aside a verdict on account of excessive damages: Sorenson v. Oregon W. P. Co., 47 Or. 24, 33 ( 82 Pac. 10 ).

The judgment is affirmed.

Affirmed: Rehearing Denied.