Brundage v. Southern Pac. Co.

JOHNS, J. — 1. "While there are no specific allegations made in the complaint, of the failure and neglect to promulgate and enforce rules and regulations, yet under the authority of Wild v. Oregon Short Line Co., 21 Or. 159 (27 Pac. 954), the allegations made are broad — 488 — enough to permit proof of any such failure and neglect as tending to show negligence. It appears from the record that the plaintiff did not offer any testimony whatever as to any rules or regulations of any kind or for any purpose, or as to the failure of the- defendant to adopt any rules and regulations for the conduct of its business, or as to any established usage or custom. The record shows that the defendant did offer in evidence a printed book or copy of its rules and regulations for the operation of its trains and the government and control of its employees and that such rules and regulations were known as ‘ ‘ Standard Rules ’ ’ and became effective April 1, 1909. It also appears from the'application to the defendant for employment, by the deceased, the body of which is in his own handwriting, that he was first employed by the defendant as a lineman on other of its properties in July, 1910, and worked until November, 1911; that he was again so employed in January, 1913, and worked until April, 1914, and again from February, 1916, to April, 1916; that at the time of making his application for his last employment, where he met his death, he signed the following statement: “I hereby acknowledge receipt of a copy of the rules and regulations for the government of employees of the operating department of this company, and all amendments thereto, and also a copy of the current time table, and agree to familiarize myself with and observe all the same, and to keep advised of such amendments to said rules sus may be hereafter made, and have had explained to me the dangerous nature of the service in which I am about to engage.” It also appears from the evidence that on April 21, 1916, the defendant mailed to him from its San Fran — 489 — cisco office a letter advising him of the shipment of the speeder, in which he was thus instructed: “Also in rounding curves or obscure points have your car under complete control at all times and do not proceed without properly protecting yourself or flagging. Every precaution is to be taken so that the car will not be damaged and yourself injured.” There is no testimony which shows or tends to show that in the operation of any railroad there was any established rule, custom or regulation requiring any kind of a tunnel to be lighted either by day or night. Neither is there any specific evidence which shows or tends to show that between sunrise and sunset there should be a light of any kind anywhere on a construction train passing through a tunnel. The court instructed, the jury that among other grounds of negligence the complaint alleged the following: “That the said defendant corporation # # negligently failed to have any light upon said train and negligently failed to have any light upon the east end of said train and negligently failed to have any lights in said tunnel of any kind whatever, and which tunnel was about 624 feet long and is built on a curve so that it is dark at all times within said tunnel; and that the said defendant corporation, as aforesaid, so negligently operated said unlighted train through said dark tunnel and without any warning,” and that the plaintiff claimed that the defendant was negligent in four respects, the last of which is as follows : “That the defendant negligently failed to have any lights upon the east end of the train and failed to have any lights in the tunnel,” and then gave the following instruction: — 490 — “I instruct you that before the plaintiff would be entitled to recover in this case, he must prove by a preponderance of the evidence that the defendant was negligent in the particulars or some of the particulars alleged in the complaint, and that such negligence, if there was negligence, was the proximate cause of the death of William J. Framhein. ’ ’ In a number of its instructions the court, in legal effect, told the jury that it could find against the defendant upon any one of the grounds of negligence charged in the complaint. The failure “to have any lights upon the east end of the train” and the failure “to have any lights in the tunnel” were particular grounds of negligence specified in the complaint and by such instructions each of said grounds was submitted to the jury, and under such instructions the jury could have returned its verdict on both or either of them. This squarely presents the questions as to-whether the failure and neglect of the defendant to maintain lights in its tunnels is in itself evidence of negligence sufficient to sustain the verdict, and whether the failure and neglect of the defendant to maintain lights upon a construction train going through a tunnel, between sunrise and sunset, is in itself sufficient evidence of neglect.to sustain the verdict. The record shows that the defendant had adopted and had in use since April 1, 1909, certain rules and regulations for the operation of its trains and the control of its employees, known as “Standard Rules,” and that the deceased was an experienced lineman and as such had been in the employ of the defendant at different times and places for about three years, and there is strong testimony tending to show that he had knowledge of the existence of such rules. It is provided in Rule 772 of the defendant that: — 491 — “All oars must display a white light at both front and rear when operated between sunset and sunrise.” But there is no rule which requires that a light shall be displayed upon an operated car between sunrise and sunset. In 3 Labatt’s Master and Servant (2 ed.), page 2948, the author says: “The presumption of law is in favor of the sufficiency of the rules adopted by a master for the government of his servants and business, as bearing upon the question of negligence of the master rendering him liable for injury to a servant. Unless those rules are shown to be ‘palpably unreasonable or clearly insufficient,’ the master ought not to be charged with negligence on account of their adoption and use,” and on page 2951 of the same volume it is said: “But in the absence of evidence showing that rules would be useful and feasible under the circumstances, the master cannot be found negligent in not having promulgated them. It is, therefore, error to leave the case to the jury where the plaintiff has offered no evidence which indicates that other employers in the same business had promulgated any such rule, or that the suggested rule was necessary or practicable, or that the necessity and propriety of making such a rule was so obvious as to make the question one of common knowledge and experience. Especially is it unwarrantable to infer culpability in the absence of such evidence, where it appears that the rules actually promulgated by the defendant supplied an adequate protection against the occurrence of accidents like the one in question, so far as they could be prevented by rules.” In Corcoran v. Delaware, L. & W. R. Co., 126 N. Y. 673 (27 N. E. 1022), the court said: “We think that there was no proof of neglect on the part of the defendant to make and promulgate suitable and proper rules for the information and government — 492 — of its employees, to warrant the submission of the case to the jury.” In 26 Cyc., page 1159, it is said: “While the adoption or nonadoption of rules by others in the same line of business is not conclusive as to the duty of the master in this respect, yet as a rule his adoption of such regulations as are in general use will relieve him from liability; and where there is no evidence that any rules relating to the business had been adopted by others, or were necessary or practicable, he is not chargeable with negligence in failing to adopt any.” In 18 E. C. L., page 574, we find: “But, ordinarily, the usage of employers generally is the standard by which the necessity for a rule is to be determined. The fact that no rule covering the.circumstances out of which the injury arose has been promulgated by other employers in the same kind of business points very strongly to the conclusion that the failure to promulgate such a rule is not actionable negligence.” In Grant v. Union Pacific Ry. Co., 45 Fed. 673, in which Shir as, J., orally charged the jury, the syllabus lays down this rule: “It is not negligence on the part of a railroad company to have switches without lights on them in its yard, unless it appears that it was the common and uniform practice to' have such lights, and that the switchmen had a right to expect them.” In Ferrari v. Beaver Hill Coal Co., 54 Or. 210 (94 Pac. 181, 95 Pac. 498, 102 Pac. 175, 1016), subdivision 19 of the syllabus is as follows : “The question whether the master was at fault in failing to adopt suitable rules is not for the jury, unless there is something in the testimony from which the inference may be drawn that it was practicable to have — 493 — provided against the occurrence of the accident complained of by such a rule.” In Wagner v. Portland, 40 Or. 389-404 (60 Pac. 985; 67 Pac. 300), this court holds: “The servant assumes the dangers of the employment to which he voluntarily and intelligently consents, and while ordinarily he is to be subjected only to the hazards necessarily incident to his employment, if he knows that proper precautions have been neglected, and' still knowingly consents to incur the risk to which he will be exposed thereby, his assent dispenses with the duty of the master to take such precautions. * * The question whether the defendant was at fault in omitting to adopt suitable rules is not one for the jury, unless there is something in the testimony from which the inference may be drawn that it was practicable to have provided against the occurrence of the accident complained of by such a rule. * * If, notwithstanding they were in fact necessary and practicable, it was a matter susceptible of proof, by showing that other,municipalities, companies, or persons engaged in handling electrical machinery and appliances for generating and utilizing electrical currents had adopted and put into operation such rules, with serviceable results, or by the testimony of persons possessing peculiar skill and experience in the construction, repair, management and operation of such machinery and appliances. No suc£ proof is to be found in the record, and hence a case has not been made in this particular upon which to put the question of negligence of the defendant in omitting the adoption and promulgation of the rules insisted upon to the jury.” In Blust v. Pacific States Telephone Co., 48 Or. 34, 37 (84 Pac. 847), this court says: “The evidence shows that he was an experienced lineman. He had worked at that business for several years, and was accustomed to putting up cables of the — 494 — kind which he was at work on when injured. He was familiar, not only with that character of work in general, but with defendant’s method of doing it in particular. * * The case is ruled by the established principle that a servant entering or continuing in the employment of a master, with knowledge of the defective appliances used by him or the imperfect method of his work, without objection or complaint, assumes the added risk caused thereby, and cannot recover for an injury resulting from the use of such defective or insufficient method. * * “A servant who voluntarily enters the employment of another, with knowledge of the defective appliances or methods used by that other, cannot be heard to say that he did not appreciate or realize the danger where the defect was obvious and the danger would have been known and appreciated by an ordinarily prudent person of his intelligence and experience. ’ ’ In Chadwick v. Oregon-Wash. R. & N. Co., 74 Or. 19, 30 (144 Pac. 1165), this court, through Mr. Justice Burnett, lays down this rule: “It is requisite that the defendant should make suitable rules for the movement of its rolling stock. This obligation is due not only to its employees but also to the general public who patronize it in its capacity as a common carrier. Reasonable regulations thus devised become the standard by which care or negligence is determined. Custom may be used as the means of interpretation, but cannot be admitted to contradict explicit rules and positive orders. This is on the principle that as the admitted rules known to the plaintiff govern the relation between him and his employer, they are in a sense part of the contract of his employment.” The complaint alleges that: “Said William J. Framhein was required to ride through said tunnel on the said motor car”; and that: “He was required to travel on said motor car on said line of railway”; that: “He was required to ride — 495 — through what is known as Tunnel Number Four on said line of railway”; and that he: “Was proceeding through said tunnel on said motor car in accordance with his said duties.” The answer alleges that: “The said William J. Framhein suffered the injuries from which he met his death as a result of causing a motor car or speeder, then being operated by mechanical power, on which he was riding, to come into collision with a locomotive in Tunnel Number Four.” “ * * And in connection with the said employment was required to ride on a motor car operated by mechanical power, over the line of railroad of the Willamette Pacific Company in Lane County, Oregon.” Under such allegations the question is settled that the deceased was riding on his speeder at the time of the collision. Eule 772 of the company provides that motor cars “must be run with great caution at all times and particularly at night and in fogs” and that “when the view of approaching trains is so obscured by any cause that there would not be ample time to remove the car from the track before being struck by a train * * stop signals should be used in either or both directions. * * Employees operating inspection cars (motor cars or velocipedes) who have not enough assistance to flag in either or both directions when necessary as herein prescribed, must walk with their cars until the view for a safe distance is not obscured in either direction.” The letter of instruction of April 21, 1916, required the deceased in rounding curves or obscure points to have his car under complete control and not to proceed “without properly protecting” himself or flagging; and there is ample testimony tending to show that the deceased had knowledge of such rules. 2, 3. How and upon what theory can the defendant be liable for negligence to have and maintain lights in — 496 — its tunnels, -when it is a matter of common knowledge that no lights are kept or maintained in any railroad tunnel anywhere in the state, either by day or night? We are of the opinion that under the facts disclosed hy the record the failure to maintain lights in the tunnel was not an act of negligence and ought not to have been submitted to the jury. There is not any evidence as to whether there should have been a light on the front or lead car of a construction train, which had the right of way, going backward through such a tunnel between sunrise and sunset, or that modern and approved methods of railroading require or do not require such a light; neither counsel has cited any authority on that point, and for such reasons we are not inclined to pass upon that question at this time. 4. On the question of assumption of .risk the case of Wagner v. Portland, supra, is authority that if the deceased knew that there were no lights in the tunnel and that construction trains were operated through the tunnel without lights, between sunrise and sunset, and, having such knowledge, consented to accept, and continued in, his employment, his assent would dispense with the duty of the defendant to provide such lights. The deceased was in the employ of the defendant and using the speeder on its tracks for more than thirty days prior to his death and there is evidence from which the jury could have found that he knew there were no lights in the tunnel. If he did have knowledge of the_want of such lights in the tunnel and the operation of construction trains backward through the tunnel without such lights, he assumed the risk, and the absence of such lights, if a defect, would be one of which he would have no right to complain. 5. The court gave the following instruction: — 497 — “However, the only evidence in this case which you can consider as a violation of Rule 772 is the evidence with reference to the rate of speed which Framhein was traveling at the time of the accident.” That instruction was clearly wrong. Under it the jury would have no right to consider whether the deceased had complied with, or violated, any of the terms or provisions of Rule 772 or the letter of instruction of April 21, 1916, for the operation of his speeder. The judgment of the Circuit Court is reversed and the cause remanded for further proceedings. Reversed and Remanded. McBride, C. J., concurs.