York v. Southern Pac. Co.

Mr. Justice Moore delivered the opinion of the court. Mr. Justice Bean dissents. The testimony received tends' to show that Lewis York, at the time of his death, was 36 years old, in good health and for more than a year prior to the accident he had been employed by the defendant, the Pacific Bailway & Navigation Company, upon one of its work trains on that part of its track which borders upon the Pacific Ocean and upon the northerly and easterly shores of Tillamook Bay. Near the station of Garibaldi on the north beach of that inlet from the sea is a switch on a curve of the main line which connects with a spur track that leads to the Miami Bock Quarry, from which stone pit trainloads of material were taken to build up and ballast the roadbed and for shipment to a jetty which was being constructed on the bar at the entrance to that bay. When earth — 699 — was being loaded with a steam-shovel upon cars at another place, Mr. York had signaled the engineer in charge of the locomotive, who, obeying the signs, caused the train to be moved in the requested direction so as to place a car in proper position to be loaded. When cars thus freighted reached the proper destination, Mr. York assisted in manipulating the brakes and the load being dumped he deposited the material along the right of way and elsewhere as directed. A freight train was halted near Garibaldi, March 17, 1915, and the caboose and two rear box-cars were uncoupled and left standing on a trestle while the train was moved a short distance ahead and a carload of lumber was set off on a switch. The remainder of the train, said by a witness to consist of from 7 to 13 flat cars, were prepared to make a flying-switch upon the spur track leading to the quarry. These cars were made ready by releasing by hand the air confined in the brake cylinders, which operation is called “bleeding” the cars. On that day two brakemen assisted in the movement of the train at the spur track. One of them stood on a flat car near the locomotive while the other was stationed at the lever which operated the switch on the main line. The flying-switch was made by uncoupling the train when it was in rapid motion and allowing the locomotive to run along the main line. As soon as the engine passed the brakeman stationed at the target, he suddenly turned the switch and the momentum which the cars had thus attained shunted them upon the quarry spur, and beyond the line of the switch. The lever was then replaced by the brakeman and the locomotive backing up would be coupled with the cars which were left standing upon the trestle. — 700 — It is quite probable that tbe attention of tbe train crew mentioned was so occupied with tbe performance of tbeir respective duties that neither member thereof saw the accident, or knew anything about it until informed of the injury by George Krumlauf, who was then standing on an embankment of the railroad about 60 feet from the place where Mr. York was killed and witnessed the entire scene. Krumlauf’s testimony is to the effect that Mr. York, walking along the track beside the flat cars, released the air from the brake cylinders until he reached the locomotive. Having discharged that duty he began retracing his steps and as he was pursuing his journey and while he was opposite to the witness the train was started. York thereafter continued his course, walking about a car-length. In the meanwhile the train had attained a velocity of about 12 miles an hour and several cars passed him. When the rear end of the flat car next to the last approached, he grasped the handholds thereof and swung his feet towards the stirrup, but missing the step placed there for that purpose he fell, sustaining the injury of which he immediately died. It appears that several globular rocks, about two feet in diameter, were partially imbedded in the earth, forming the slope of the roadbed about 6 or 8 feet from the rail on the side of the track where the accident happened. No obstruction of any kind, however, is mentioned as having been found on the berm of the grade along which Mr. York walked as near the ends of the ties as the width of the cars would safely permit. All the cars that were placed upon the spur track were supplied with handholds and stirrups, whereby a person accustomed to the service could safely have boarded the train when it was starting. No testimony was offered tending to show that it was — 701 — Mr. York’s custom, except "when loading cars, to indicate when they should he started, or that it might reasonably be expected he would on that occasion signal the engineer to move the train. It is contended by plaintiff’s counsel that the jury having visited the scene of the accident, thereby acquired' such a knowledge of the locus in quo as to enable them carefully to consider and accurately to determine the degree of danger to be encountered at that place under the circumstances detailed, and such being true, an error was committed in granting the judgment of nonsuit. A different conclusion has heretofore been reached by this court which determined that the only purpose to be subserved by permitting a view of premises by a jury, was to enable them intelligently to apply the evidence received at the trial to the mental picture thus obtained, and that their verdict must be predicated upon the testimony of witnesses so given and not upon such observation: Crane v. Oregon R. & N. Co., 66 Or. 317 (133 Pac. 810); Molalla Electric Co. v. Wheeler, 79 Or. 478 (154 Pac. 686). No valid reason is perceived for changing the rule thus established. 1. Invoking the legal principle announced in the case of Hartman v. Oregon Electric R. Co., 77 Or. 310, 317 (149 Pac. 893, 151 Pac. 472), where it was said: “When there are two or more probable causes of an injury, the question should be submitted to the jury, ’ ’ plaintiff’s counsel maintain that the facts herein bring the case within that rule and hence an error was committed in granting the nonsuit. In the case so relied upon, J. E. Harris, who was working in a tunnel which was then being cut for that defendant company, heard a scream and hastily going to the mouth of the excavation, he found the plaintiff’s son lying dead, probably — 702 — from a shock of electricity which might have been caused from a defective switch or from lack of an assistant. As no person witnessed the death, the presumption was indulged that the deceased had exercised due care (Cassidy v. Angell, 12 R. I. 447 (34 Am. Rep. 690); McBride v. Northern Pac. R. Co., 19 Or. 64 (23 Pac. 814), and it was held that no error was committed in submitting the case to the jury. In the case at bar, however, as Mr. Krumlauf witnessed the accident, which did not involve any probability as to its cause, there was no necessity to invoke any presumption as to the manner in which the injury was inflicted. No error was committed in this particular. On the cross-examination of Mr. Krumlauf, the defendant’s counsel referring’ to the interval occurring after the compressed air was released from the brake cylinders inquired: “During the time the train was standing there York was walking back along the train?” The witness replied, “ Yes, sir. ” , “Q. What was there to prevent him from getting on the train while it was standing there? “A. Nothing that I know of. “Q. When the train started up, did it start slowly and then increase in speed? “A. Yes, sir. * “Q. It kept going faster? “A. Yes, sir. “Q. When it first started off it started.slow? “A. Not so very slow. ‘ ‘ Q. What was there to prevent him from getting on when it first started up? “A. I don’t know; nothing, I g-uess. “Q. Did the train start up with any big jerk or just in the usual way as they do in there in those flying-switches ? “A. Just like they usually do.” — 703 — On redirect examination this witness was further asked: “How do they always start in making a flying-switch? “A. They have got to start kind of fast. “Q. And they started that way before Mr. York got on? “A. Yes, sir.” Mr. York, having been in the employ of defendants more than a year and engaged in the service which he was performing when he was hurt, must have known when he assisted in preparing the cars to make a flying-switch, that the train would soon start, and as he could have boarded the cars at any place, self-preservation should have prompted him to do so before the train was put in motion. 2. A careful examination of all the testimony given at the trial fails to disclose any negligence on the part of the defendants’ employees, that caused the injury set forth in the complaint. While contributory negligence is not a bar to the maintenance of an action of this kind, there must be some carelessness on the part of an employer or of his servant before any basis can be established upon which must be constructed the fabric of contributory negligence. Failing to find any testimony tending to create such foundation, no error was committed in granting the nonsuit. The judgment is therefore affirmed. Affirmed. Rehearing Denied. Mr. Chief Justice McBride and Mr. Justice Mc-Camant concur.