Ebell v. Oregon-Washington R. & N. Co.

RAND, J. The plaintiff alleges and the defendant admits that at the time of the accident plaintiff’s intestate and defendant were both engaged in interstate commerce. The case, therefore, is governed exclusively by the provisions of the federal Employers’ Liability Act and “the applicable principles of common law as interpreted and applied in the federal courts.” Southern Ry. Co. v. Gray, 241 U. S. 333 (60 L. Ed. 1030, 36 Sup. Ct. Rep. 558, see, also, Rose’s U. S. Notes). The whole evidence of the plaintiff discloses that the injury sustained by plaintiff’s intestate was not caused by any violation by the defendant company of any federal statute enacted for the safety of its employees, nor by reason of any defect or insufficiency in its property or equipment. And there is no evidence in the record in explanation of how plaintiff’s intestate, an experienced brakeman, whose duties did not require him to cross the track or to go upon it at all, came to be on the track and immediately in front of the helpers, 80 feet away from — 673 — the point where he himself was to make the coupling-; nor why, being there, he did not step off the track in time to avoid injury; nor what, if anything, caused him to stagger and fall. From the time he was seen, by Larcom, talking to members of another train crew, to the time he was observed, by Neff, in front of the two helpers, his whereabouts are wholly unaccounted for. There is no contention that plaintiff’s intestate, while in the center of the track and only four feet away from the front of the engine, could be seen from the cab by either the engineer or fireman of the front helper, or that they had any knowledge of his being there. The fact that he sustained injuries resulting in his death by reason of his being on the track in front of an approaching engine, without any explanation of how he came to be there, in itself, raises no inference of negligence upon the part of the company, as “the fact of acciden carries with it no presumption of negligence on the part of the employer.” Patton v. Texas & Pac. Ry. Co., 179 U. S. 658, 663 (45 L. Ed. 361, 21 Sup. Ct. Rep. 275, see, also, Rose’s U. S. Notes). Hence, testimony which merely shows that plaintiff’s intestate sustained injuries from which he died by being run over while on the' track in front of a moving engine, where, at the time, his duties did not require him to be, in itself alone is not sufficient proof upon which to base an inference of negligence against the defendant company. The rules of the company require both the engineer and fireman, while switching, to remain on the engine and give close attention to signals. Plaintiff contends, because of this rule and of evidence tending to show that the helpers could have been — 674 — stopped within from four to eight feet after the application of the emergency brake, and that when Neff first observed plaintiff’s intestate staggering and falling on the track, he immediately gave an emergency stop signal, which, if it had been observed by the fireman of the front helper and had been instantly communicated to the engineer and the emergency brake had then been set, might have stopped the engines before plaintiff’s intestate received the injury from which he died, that this was sufficient to establish negligence upon the part of the defendant. Over the objection and exception of the defendant the Circuit Court adopted that theory, holding it to be sufficient to take the case to the jury, and instructed the jury, in effect, that proof of these facts was sufficient to justify them in finding a verdict in favor of the plaintiff. Under a reasonable interpretation, the rule that the fireman, while switching, must remain on the engine and give close attention to signals does not mean that, while switching, he must discontinue the performance of all other duties and devote his entire attention to watching out for the safety of that particular employee who, at the time, is engaged in coupling his engine to another engine or car. The engines and cars of the defendant company are equipped with automatic couplers which couple from impact. In coupling it was not necessary for plaintiff’s intestate to go between the cars, and the rules of the company forbade his doing so. Plaintiff’s intestate was supposed to look out for his own safety, and neither the engineer nor fireman had reason to anticipate that he would go upon the track or that he would fail to exercise ordinary care and prudence for his own safety. As it was his duty, at the time of the accident, to couple the — 675 — helpers to the train, it was his duty to signal the engineer snch information as was essential to their operation of the helpers and for the time being he had control of their movements. Ordinarily, they would look to him alone for signals. If, however, they saw signals given by other trainmen, they were bound to observe them, but primarily they were only required to look for signals to the one in charge of their operations. Not seeing him in a place of danger and not having any reason to anticipate that he was in a place of danger, they were under no legal duty to him. They had a right to rely upon his doing everything essential to his own safety, and were not required to take unusual precautions to prevent an injury which they had no reason tn anticipate. As the engineer and fireman, in that respect, owed him no legal duty, the defendant company could not be charged with a greater duty towards him than that owed by them. He was run over 80 feet away from the place where the coupling was to be made. The track over which the helpers were to move was between that place and the rear end of the train. It was this portion of the track that they were required to observe. It was not to be expected that they would receive a signal intended to control the movement of their engines from a point between two freight trains standing on parallel tracks and close together, which point, the whole evidence shows, was 180 feet away from where they then were and 100 feet beyond that part of the track' over which they would have to move to reach the rear car of the train to which the helpers were to be coupled. To hold, under these circumstances, that evidence tending to show the failure of the fireman to instantly observe and communicate Neff’s emergency — 676 — stop signal to the engineer, and that because of such failure the engines were not brought to an immediate stop, was sufficient, in law, to impute negligence to the defendant company, would place a too strict accountability upon the carrier and one which finds no sanction in any decision of the federal courts, whose decisions are controlling upon us upon every question of liability arising under the federal • Employers ’ Liability Act. But regardless of these considerations, the failure of the fireman to observe and communicate Neff’s emergency stop signal was not a proximate cause of the injury. The injury resulted from decedent’s going upon the track in front of a moving engine and remaining there until the engine ran over him. This was the real and immediate cause of his injury, and this injury, so far as the evidence discloses, was brought about through no fault of the defendant. The facts proved were not sufficient to justify an inference that, if the fireman had seen the emergency stop signal when first given by Neff, it would have been possible to have avoided the injury, and whether the injury could have been avoided or not is clearly a mere surmise. But as the fireman’s failure was not the omission of a legal duty, it was not a proximate cause of the injury, but was merely a circumstance attendant upon a condition brought about by decedent’s presence upon the track immediately in front of a moving engine. It neither caused him to be there, nor caused him, to suffer the injuries from which he died. The law is settled by the decisions of the Supreme Court of the United States that where an injury results to a railroad employee, while the carrier and employee are both engaged in interstate — 677 — commerce, the causal negligence of the carrier is the test of its liability, and that if there was no causal negligence upon the part of the carrier, which in some way contributed or co-operated to bring about the injury complained of, the carrier is not liable: New York Cent. R. R. Co. v. Winfield, 244 U. S. 147 (Ann. Cas. 1917D, 1139, L. R. A. 19180, 439, 61 L. Ed. 1045, 37 Sup. Ct. Rep. 546, see, also, Rose’s U. S. Notes); Erie R. R. Co. v. Winfield, 244 U. S. 170 (Ann. Cas. 1918B, 662, 61 L. Ed. 1057, 37 Sup. Ct. Rep. 556). Before a recovery can be had under the federal Employers’ Liability Act, it must be established by the evidence that the negligence of the carrier was a proximate'cause of the injury complained of. It is not necessary that the negligence of the carrier should be the sole cause of the injury, but the negligence of the carrier must, in some' way, have cooperated to cause the injury complained of. There must be a proximate and causal relation between the damages sought to be recovered and the negligence of the carrier. The causal negligence of the carrier is an affirmative fact which the plaintiff must establish to entitle her to recover: Texas etc. Ry Co. v. Barrett, 166 U. S. 617 (41 L. Ed. 1136, 17 Sup. Ct. Rep. 707, see, also, Rose’s U. S. Notes); Patton v. Texas & Pac. Ry. Co., supra. “It is not sufficient for an injured employee to show that the employer may have been guilty of negligence — the evidence must point to the fact that he was.” Patton v. Texas & Pac. Co., supra. Under the Employers’ Liability Act, the right to sue is based on negligence only: Seaboard Air Line Co. v. Horton, 233 U. S. 492 (Ann. Cas. 1915B, 475, L. R. A. 19150, 1, 58 L. Ed. 1062, 34 Sup. Ct. Rep. 635, see, also, Rose’s — 678 — U. S. Notes). Before there can be a recovery, “it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Milwaukee etc. Co. v. Kellogg, 94 U. S. 469 (24 L. Ed. 256). But “if the negligence of the railroad company contributed to, that is to say, had a share in producing, the injury, the company was liable, * * .” Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700 (27 L. Ed. 266, 1 Sup. Ct. Rep. 493, see, also, Rose’s U. S. Notes). If plaintiff’s intestate could not have recovered for the injury he sustained, his administratrix cannot recover for his death: Frese v. Chicago etc. R. R. Co., 263 U. S. 1 (68 L. Ed. —), decided October 15, 1923. Before a carrier, under the act, can he held liable for the death or injury of an employee, it must appear that the carrier failed in the performance of some duty which it owed to that employee: Nelson v. Southern Ry. Co., 246 U. S. 253 (62 L. Ed. 699, 38 Sup. Ct. Rep. 233); affirmed, 170 N. C. 170 (86 S. E. 1036). In St. Louis etc. R. R. Co., v. Conarty, 238 U. S. 243 (59 L. Ed. 1290, 35 Sup. Ct. Rep. 785, see, also, Rose’s U. S. Notes), an employee engaged in switching received injuries in a collision between a switch engine on which he was riding and a loaded freight-car having no coupler or drawbar, which latter car was about to be placed on an isolated track for repair, and had been left near the switch leading to that track. The collision occurred in the dark and the deceased was standing on the footboard at the front of the switch engine, where he was caught between the engine and the body of the car at the end from which the coupler and drawbar were missing. — 679 — Under one view of the evidence, had these appliances been in place, it would have kept the engine and the body of the car sufficiently apart to have prevented the injury, but, in their absence, the engine carne in immediate contact with the sill of the car, causing injuries from which he died six days later. The negligence charged was the failure to have the car equipped as required by the Safety Appliance Acts. In its decision the court said: “It is not claimed, nor could it be under the evidence, that the collision was proximately attributable to a violation of those provisions, but only that had they been complied with it would not have resulted in injury to the deceased. It therefore is necessary to consider with what purpose couplers and drawbars of the kind indicated are required, for where a duty is imposed for the protection of persons in particular situations or relations a breach of it which happens to result in injuiy to one in an altogether different situation or relation is not as to him actionable.” The decision of the court, deciding that the plaintiff was not entitled to recover, was announced in these words: “We are of opinion that the deceased, who was not endeavoring to couple or uncouple the car or to handle it in any way but was riding on the colliding engine, was not in a situation where the absence of the prescribed coupler and drawbar operated as a breach of a duty imposed for his benefit, and that the Supreme Court of the State erred in concluding that the Safety Appliance Acts required it to hold otherwise.” In Lang v. New York Cent. R. R. Co., 255 U. S. 455 (65 L. Ed. 729, 41 Sup. Ct. Rep. 881), plaintiff’s intestate, a brakeman, was crushed between a car upon which he was riding and a car without drawbar or coupler standing on the siding on to which the car — 680 — he was riding had been kicked, and it was his duty to stop the car before coming into collision with the defective car. The defective car was loaded with iron and was standing on the .siding waiting to be unloaded. He died from the injuries. In deciding the case the court held: “It was the duty of the crew, we repeat, and immediately the dnty of Lang, to stop the colliding car and to set the brakes upon it, ‘so as not to come into contact with the crippled car,’ to quote again from the trial court. That duty he failed to perform, and, if it may be said that, notwithstanding, he would not have been injured if the car collided with had been equipped with drawbar and coupler, we answer, as the Court of Appeals answered, still ‘the collision was not the proximate result of’ the defect. Or, in other words, and as expressed in effect in the Con-arty Case, that the collision under the evidence cannot be attributed to a violation of the provisions of the law ‘but only that had they been complied with it (the collision) would not have resulted in the injury to the deceased.’ ” In Davis v. Wolfe, 263 U. S. 239 (68 L. Ed. —, 44 Sup. Ct. Rep. 64), decided November 12, 1923, Mr. Justice Sanford, in commenting upon these two cases and two other cases not necessary to be referred to here, said: “The rule clearly deducible from these four cases is that, on the one hand, an employee cannot recover under the Safety Appliance Act if the failure to comply with its requirements is not a proximate cause of the accident which results in his injury, but merely creates an incidental condition or situation in which the accident, otherwise caused, results in such injury.” In referring especially to the two last cited cases, he said: “In these cases it was held that, the collisions not being proximately attributable to the absence of automatic — 681 — couplers on the standing cars, the carriers were not liable for the injuries received by the employees, even if the collisions would not have resulted in injuries to them had the couplers been on the standing cars, the requirement of automatic couplers not being intended to provide a place of safety between cars brought into collision through other causes.” Since the plaintiff tried her case in the Circuit Court upon a theory which we hold to be untenable, we deem it our duty to remand the cause for a new trial, thereby affording her an opportunity, if she can, of showing whether or not decedent’s being on the track at the time of the injury was caused by any negligent act or omission of the defendant company and under circumstances which relieved the decedent from assuming the risk. Since the case may be tried, we call attention to an instruction given upon the former trial which we deem to,be error. The court instructed the jury to the effect that the law presumes that the deceased exercised reasonable care for his own safety and that the plaintiff was entitled to have the jury consider said presumption in determining the liability or nonliability of the defendant. The giving of this instruction was error, because the presumption that the defendant company and its employees exercised due care upon their part was equally strong, and this offset and counteracted the presumption of due care upon the part of the deceased. “But the negligence of the defendant cannot be inferred from a presumption of care on the part of the person killed. A presumption in the performance of duty attends the defendant as well as the person killed. It must be overcome by direct evidence. One presumption cannot be built upon another.” Looney v. Metro — 682 — politcm R. R. Co., 200 U. S. 480 (50 L. Ed. 564, 26 Sup. Ct. Rep. 303, see, also, Rose’s U. S. Notes). See, also, Pratt v. Great No. Ry. Co., 105 Wash. 24 (177 Pac. 637). Judgment reversed and cause remanded. Reversed and Remanded. Rehearing Denied. Burnett, J., not sitting.