DeMase v. Oregon Railroad & Navigation Co.

Per Curiam. On and prior to the 21st day of July, 1903, the defendant railway company operated a branch line of road about seven miles in length, between Wallace and Burke, in the state of Idaho. There was a heavy grade of from 180 to 200 feet to the mile along this branch, and but one mixed train was operated thereon daily. The conductor in charge of this train had practically entire charge of the branch. The plaintiff and four other Italians, under a foreman or boss, were section hands in the employ of the defendant. The section crew were provided with a push car, which they attached to this train with a rope about fifteen feet in length, when going up the grade. The push car was provided with a brake, and came down the grade by gravity. Whenever the section crew desired to go up the grade, they would flag the train and attach the push car on behind; and when they reached their destination, the push car would he detached by drawing the pin which connected it with the train. While the plaintiff and his witnesses testified that they never rode on the push car before the day of the accident complained of, yet it appears from the entire testimony that the push car was furnished for that purpose, and that, if the train to which the push car was attached did not stop for other' reasons at the destination of the section crew, it would he necessary for the crew to ride on the push car. On the 21st day of July, 1903, the section crew in ques [110] tion. attached the push car to the train, boarded the push car at the request of the foreman or boss, and started up the grade. After they had proceeded from a quarter to half a mile, and when the train had attained a speed of from twenty to thirty miles per hour, the push car left the track, and the wheels passed over the plaintiff’s leg causing the injuries for which he seeks to recover damages in this action. From a judgment and verdict in favor of the plaintiff, this appeal is prosecuted. The principal contention of the appellant is that the facts were undisputable that the respondent assumed all risk incident to riding on the push car, under the circumstances stated, and that the court should have directed a judgment in its favor. It appears from the testimony, especially that of the appellant, that the appellant undertook to carry its employees up the line of the branch in question by means of this push car. It was therefore incumbent on tbe appellant to exercise ordinary care in that regard, and to see that no injury befell its employees while in transit, by reason of negligence on its part. From all the testimony in this case, it cannot be said, as a matter of law, that the appellant used that degree of care, or that a push car, attached to a train running at a high rate of speed, was a reasonably safe means of conveyance. We think that the question of negligence on the part of the appellant was clearly one of fact for the jury. Was the danger of riding on this push car so imminent and apparent that the employees assumed the risk ? It cannot he said that it was. The principal danger to he anticipated would he from the push car leaving the track, as it did in this instance. Under what circumstances a ear of this structure would leave the track cannot he said to he a matter of common knowledge, nor did the section hand and the foreman and other persons in charge of the road necessarily stand upon an equal footing with regard to such knowledge. According to the testimony of the respondent, [111] he never rode on the push car before the day of the accident, and according to the testimony of the appellant’s foreman, not to exceed once or twice: The knowledge, and the means of knowledge, on the part of the respondent, and the nature of the dangers to which he was subjected, clearly distinguish this case from Lee v. Northern Pac. R. Co., 39 Wash. 388, 81 Pac. 834. Under all the circumstances, we are satisfied that the question of negligence on the part of the appellant, and of assumption of risk on the part of respondent, were for the jury and not for the court. There was no prejudicial error in the instructions of the court, and the judgment is therefore affirmed.