Walters v. Dock Commission

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 489 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 490 In Banc. This is a motion to dismiss an appeal for the alleged reason that the transcript was not filed within the time required by law. The transcript, now on file, indicates that an undertaking on appeal was filed June 17th. No objection being made thereto, the appeal was perfected on June 22d. Appellant then had thirty days to file its transcript, which time would have expired on July 22d. The *Page 491 record further shows that on July 8th an order was made allowing twenty days' additional time within which to file the transcript, which taken in connection with the time already granted would have carried the right to file the transcript to August 11th; that on July 27th an order was made granting thirty days' additional time in which to file the transcript, and that on August 27th, 1925, an order was duly granted allowing a further thirty days' additional time, which, taken with the time not yet expired, would carry the right of appeal to October 10th. The transcript on appeal was filed September 12, 1925, which was within the time allowed and the various extensions. It is averred that the orders of extension are too indefinite to identify the judgment concerning which such extensions were granted, and, while they are not as definite as might be desired, we think they are sufficient. The motion to dismiss is denied, and the appellant will have twenty days from the date of the denial of this motion within which to file its brief. MOTION TO DISMISS DENIED. ON THE MERITS. This is an action under the Employers' Liability Act brought to recover damages for the death of one Charles Walters. Plaintiff alleges that the act of the defendant caused the death. The facts are that the defendant maintains in the City of Portland extensive dock and granary facilities. Immediately adjacent to these structures, and standing upon land leased from the defendant, is the plant of the Terminal Milling Company. There is a roadway upon the property of the defendant *Page 492 for the convenience of those desiring access to or egress from its various facilities. Branching off of this main road is a spur road approximately 250 feet in length; its farther terminus is at the flour-mill of the Terminal Milling Company. This spur road is the only means of communication between the plant of the Terminal Milling Company and the main roadway which we have just mentioned. About fifty feet east of this branch road the defendant has a structure referred to in the evidence as a track shed. Two lines of railroad tracks run through it. The building is of sufficient length that it can afford shelter to three cars upon each track while they are being unloaded of their grain. As soon as the contents of a car are removed it is ejected from this structure by a cable which communicates the motive power to the car from an electrical motor in the track shed. Due to the shortness of the cable the ejected car generally comes to rest when it reaches the afore-mentioned branch road. It is possible to move the empty car beyond this point by attaching the cable to other cars and bringing them into contact with the empty cars; thus the empty cars are forced beyond the spur road. Nevertheless the branch road is frequently blocked by empty cars placed there in the manner we have described. A method frequently employed to move these cars from the roadway, so as to afford access to the flour-mill, was to use a pinch-bar and thus impart slight movement to the cars; this motion was retained by the men applying their physical force to the rear of the car. October 7, 1924, upon the hour involved in this case, this spur road was blocked with one or more *Page 493 empty cars. At that time a delivery truck sought to approach the mill to deliver a quantity of sacks weighing a ton or more. These sacks apparently had been purchased by the Terminal Milling Company from the manufacturer. Access to the premises was barred by these empty cars. The driver of a truck walked to the flour-mill and found there one Oscar O. Norgard, an employee of the mill company, and informed the latter of the driver's predicament. Norgard called the deceased and told him to get a pinch-bar, so that they could move the cars away and permit the delivery of the bags at the premises of the milling company. The point blocked by the car was approximately 210 feet from the mill. The deceased obtained a pinch-bar in the warehouse of the mill company and together with Norgard, the driver of the truck, and the latter's helper, proceeded to the car and placed it in motion. At about the same time the workmen in the defendant's employ in the truck shed, without making any observations ahead, applied their cable to some cars upon the same track upon which the deceased and the other men were working. When these cars were put into motion one of them caught the deceased between its coupler and the coupler of the empty car to which the deceased was then applying his shoulder, and thereby crushed out his life. Plaintiffs obtained a judgment based upon the jury's verdict; defendant appeals. The principal error assigned is: the defendant contends that at the moment in question Walters was not acting within the scope of his employment, and was therefore not in an employment within the terms of the Employers' Liability Act. Other assignments of error appurtenant *Page 494 to this one and relied upon by the defendant we shall state and dispose of as we proceed. AFFIRMED.