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Action by Sam Howard against Clatsop the district attorney, and this is wherein the county. Judgment for defendant. Plaintifr two acts differ, and distinguishes this case appeals. Reversed.

from State v. Moore. The $10 fee required to Claud Straban and Waldemar Seton, for

be collected from a private party, under sec

tion 1074, being one to which the district atappellant. Harrison Allen, for respondent

torney was entitled, as a prerequisite for a

duty performed by him, the act of 1899 put. WOLVERTON, J. The plaintiff was re- ting him upon a salary, and expressly deny. quired, as a condition to the commencement ing to him any further salary, fees, etc., must of a suit for divorce, to pay to the clerk of be held to supersede, and thereby to repeal, Clatsop county a fee of $10. This sum he section 1074 as to such fee in judicial disnow seeks to recover as an unlawful exac- tricts other than the Fourth, as the two provition, and the single question presented is sions are utterly inconsistent, one with the whether the district attorney or the county other, and both cannot stand. Plaintiff is enis now entitled to such fee. Under section titled, therefore, upon the face of his com1074, Hill's Ann. Laws, the plaintiff in every plaint, to recover from the county, and the divorce suit is required to deposit $10 with demurrer should have been overruled. the clerk of the court in which the suit is The judgment of the trial court will thereinstituted, which must be paid to the district fore be reversed, and the cause remanded attorney as his fee in such suit, when allow- | with directions to overrule the demurrer; and ed by the court. This fee, as determined in it is so ordered. State v. Moore, 37 Or. 536, 62 Pac. 26, is to be collected by the clerk from private

(41 Or. 82) parties for services rendered by the district attorney, and as a part of his compensation.

TUCKER V. NORTHERN PAC. TERMINAL

CO.' In 1898 an act was passed to regulate and fix the compensation of the district attorney (Supreme Court of Oregon. April 7, 1902.) in the Fourth judicial district, wherein he RAILROAD EMPLOYE-DEATH IN COUPLING was allowed $3,500 per annum, in addition to

CARS-ASSUMPTION OF RISK-PLEAD

ING-NECESSITY. the yearly salary of $500, in full compensa

1. In an action for the death of an employé, tion for services rendered by him. Sess. the answer need not allege that he assumed Laws 1898, p. 7. It was also provided (section the risk that caused his injury, if the hazard 2) that he should receive no other salary,

was ordinary.

2. A railroad employé was used to coupling fees, percentages, or compensation of any flat cars loaded with iron rails, which usually kind, and by section 8 that the fees, percent- shift in transit. In an action for his death, ages, commissions, and charges now estab- it appears that, while thus employed, a flat car

was "kicked" toward a loaded car, and, while lished by law, or in any manner allowed, for

endeavoring to couple them, he was caught be. the performance of any act or duty by or re- tween the projecting rails and the moving car, quired of the district attorney (except for

No one saw the accident, but it occurred before

sunset, and his view of the cars was unobservices rendered for or on behalf of the state

structed, though what his position was before or Multnomah county, for which no charge

the cars

came together was not shown. It shall be made), shall continue and remain the was apparent that he must have stooped to established fees, percentages, etc., for such

avoid the danger at the time of the accident.

field, that it was an ordinary risk of his eman act or duty, which are required to be col

ployment, which he had assumed. lected and paid over to the county treasurer. Under this act it was held (State v. Moore,

Appeal from circuit court, Multnomab supra) that a party instituting a suit in Mult

county; Alfred F. Sears, Jr., Judge. nomah county for divorce was still required

Action by Jane Tucker, administratrix of to pay the fee of $10, as a condition to filing

James A. Tucker, deceased, against the the complaint, but for the use of the county.

Northern Pacific Terminal Company. PlainThe act is local in its operation, and applies

tiff was nonsuited, and she appeals. Affirmto Multnomah county only, as it comp?ses

ed. the Fourth judicial district. In 1899 the leg- This is an action by Jane Tucker, as adislature passed a general act (Sess. Laws ministratrix of the estate of James A. Tuck1899, p. 184) amendatory of sections 2301 and er, deceased, against the Northern Pacific 2304, Hill's Ann. Laws, extending the term Terminal Company, a corporation, to recover of office of the district attorneys, in the sev- damages for a personal injury sustained by eral judicial districts, from two to four years, her intestate, causing his death. The plainand fixing their salaries. By section 3 it is tiff alleges, in substance, that the defendant provided that no salary, fees, percentages, or is in possession of a railroad terminal yard compensation of any kind shall be allowed or in Portland, Or., and engaged, among other received by them, except as therein provided, things, in repairing freight cars, readjusting and section 5 repeals all acts, or parts of acts, their loads, and in making up trains; that in conflict therewith. The act contains no on July 10, 1899, it received from the South. clause or provision corresponding to section 8 ern Pacific Company a freight car in a damin the act of 1898, supra, continuing in force aged condition, loaded with iron rails, which the established fees, percentages, commis- had shifted, so that their ends extended over tions, and charges for the acts or duties of the end of the car from one to three feet;

* Rehearing denied June 9, 1902

that the company repaired the car but did ing his death, which is the same injury and not rearrange its load, and four days later, death mentioned in the complaint; that the knowing the condition of the car and its injury was caused solely by the negligence load, and that any attempt to couple it to and want of attention on the part of Tucker, another car would expose a switchman to and without any fault or negligence of the unnecessary danger, carelessly ordered James defendant. The averments of new matter A. Tucker, a car coupler and switchman in in the answer having been put in issue by its employ, to make such coupling; that, not the reply, the plaintiff introduced her testiknowing, and unable to ascertain, the dis- mony and rested, whereupon the court granttance which the rails extended, unconscious ed a judgment of nonsuit, and she appeals. of the danger to which he was exposed, and in pursuance of the command, he undertook

E. B. Watson, for appellant. Rufus Mato make the coupling, and while thus en

lory, for respondent. gaged, and in the exercise of due care, his head was caught between the projecting rail MOORE, J. (after stating the facts). The and an iron guard upon the rear end of the question to be considered is whether the approaching car, and so crushed that he died testimony introduced at the trial, aided by in a few minutes; that the injury was presumptions based thereon and deducible caused by the negligence of the defendant, inferences, was sufficient to require the subwithout any fault or want of due care, skill, mission of the cause to the jury. An examprudence, or caution on the part of the de- ination of the bill of exceptions shows that ceased. The answer after denying the ma- Tucker, at the time of his death, was 23 terial allegations of the complaint alleges, years old, and for more than a year prior in effect, among other things, that it was the thereto had been employed by the defendant business of the defendant to receive cars in its yard as a switchinan and car coupler; from railroads terminating in its yard to that the defendant owns in Portland, Or., be made up into trains; that cars loaded a terminal yard, consisting of a series of with iron rails are frequently received by railway and side tracks, with which are it, and inspected by persons appointed for connected lines of railway, operated respectthat purpose by the railroad companies whose ively by the Northern Pacific Railway Comlines of railway connect with its yard, over pany, the Oregon Railway & Navigation Comwhose acts the defendant has no control, pany, and the Southern Pacific Company, whose duty it is to inspect the loads upon and is engaged in receiving into its yard cars so received by the defendant, and, if from said railway companies cars which are found to be in an unsafe or dangerous condi- uncoupled, and when they are returned or tion, the inspector should refuse to accept hauled over either of the other lines of railsuch car, until the load thereon was prop- way are made up into trains by the defenderly adjusted by the railroad company de- ant's servants; that on July 10, 1899, the livering it; that, while James A. Tucker defendant received from the Southern Pawas employed as a switchman and car coup- cific Company a flat car, 30 feet in length, ler, cars loaded with iron rails were fre- loaded with iron rails of the same length, quently received, and in most cases the ends which car was to be shipped over the line of the rails extended more or less past the of the Northern Pacific Railway Company. end of the car, and such projection is not an This car, being out of order when so unsafe method of loading, if the extended ceived, was repaired by the defendant, and rails do not come in contact with the next set out on one of its side tracks, to be made car in the train, which fact Tucker well up into a train for its destination. A flat knew, and he was in the habit of coupling car, with an automatic coupler, was "kicked" cars with loads in substantially the same down, to be coupled to the loaded car, which condition as the car in question; that such had a common drawhead. No witness was cars can be safely coupled by stooping below called who saw Tucker when he attempted the projecting rails, which fact he well knew, to make the coupling, so that the manner and that neither he nor any other car coupler of his injury is to be inferred from the cirwas required to make such coupling, if in his cumstances. The side track at the scene judgment he could not do so with safety. of the accident runs north and south, at the That some of the rails on this car extended west side of which his body was found, with over the end, but none more than 24 inches, the head crushed. In the patent drawhead a and in such condition the car was not dan- coupling link was found fastened, the other gerous, and was accepted by the inspector for end of wbich was entered in the common the Northern Pacific Railway Company, over drawhead, the pin in the latter having fallen whose lines it was to be transported; that over, and one of the iron rails, extending over when a car approaching the car so loaded the end of the car 29 inches, came within had reached a point near enough to be cou- about 3 or 4 inches of an iron cleat surpled to it, Tucker stooped to make the rounding a stake pocket on the end of the coupling, but carelessly and negligently fail- car "kicked" down, and blood was discoved to stoop low enough to permit the rails ered upon the end of the projecting rail, and to pass over his head, and when the cars upon this clamp, thus tending to show that came together he sustained the injury caus- the near approach of these blood-marked

re

objects probably caused his death. The tes- Tucker had inserted the link in the approachtimony also shows that railroad rails shipped | ing car which he was accompanying, and on cars usually shift in transit, so that they in the hurry incident to the performance of extend over the end of the car 18 inches or his dangerous work did not see the shifted more, and that the only safe way in which rails, and was not conscious of his extreme a car in this condition can be coupled is by peril until too late to stoop low enough to the switchman stooping, so that the rails permit the protruding obstacles to pass over may pass over his head. The intestate hay

his head. That he was stooping when he ing been killed at aboạt 7 o'clock p. m., be- sustained the injury is evident from the tesfore sunset, and at a point where his view timony, which shows that, if he had been of the cars to be coupled was unobstructed, standing erect when attempting to make the the question is, assuming from a contempla- coupling, the projecting rail would have tion of the foregoing testimony, which is a struck his breast instead of his head. The fair résumé of that given at the trial, that fact that the coupling link was entered in the defendant was guilty of negligence in the common drawhead would seem to renot readjusting the rails, was Tucker also fute the inference that he was unconscious guilty of negligence contributing to his in- of the danger to which he was exposed, for, jury, and, if so, was the evidence of his want if he had been following the approaching of care so conclusive that the court could, car until he saw the extended rails, his effort as a matter of law, take the question from to escape the impending danger would probthe consideration of the jury? The rule is ably have prevented him from attempting, settled in this state that it is unnecessary as he must have done, to enter the link for a plaintiff, in a complaint in an action in the common drawhead. Another circumto recover damages for a personal injury, stance that seems irresistibly to lead to the to allege or affirmatively show at the trial conclusion that Tucker must have thought that he was free from negligence; but if it that he stooped low enough to avoid injury should appear from his own proof, offered is the fact that the bed of the car loaded for the purpose of establishing the defend- with iron rails must have been lower than ant's negligence, that he was also guilty of that of the car to which it was to be counegligence, without which the injury com- pled, for it will be remembered that his head plained of would not have occurred, such was injured by being between the iron rail proof will defeat a recovery. Grant v. Baker, and the stake pocket; and, if the cars had 12 Or. 329, T Pac. 318; Scott v. Navigation been of the same height, the rails would have Co., 14 Or. 211, 13 Pac. 98; Johnston v. passed over the deck of the approaching car, Railway Co., 23 Or. 99, 31 Pac. 283. The so that he may have reasonably supposed, in defense of contributory negligence is made the hurry of the work, that, his head being upon the theory that, notwithstanding the below the end of the car that had been defendant has been guilty of negligence, the “kicked" back, he was out of all danger. Asperson injured has also been guilty thereof, suming, without deciding, that the defendand, as the law will not measure the degrees ant was guilty in not readjusting the load, of wrong where each party is guilty, the it would seen that the plaintiff's intestate plaintiff cannot recover. The answer denies was also guilty of negligence contributing to that the defendant was guilty of any negli- his injury, in that he did not stoop low gence, and avers that the intestate's death

enough. was caused by his carelessness and want of It may be suggested that it was incumbent attention. It is impossible to say from an upon the jury, and not within the province inspection of the testimony, or from a con- of the court, to deduce inferences of fact sideration of the circumstances attending from the circumstances attending the injuTucker's death, whether he had been follow- ry, in view of which it is deemed proper to ing the flat car that was "kicked" down, or consider the question of Tucker's assumption was standing at the loaded car waiting to of the risk, in case any error may have ocmake the coupling at the instant of con- curred in reaching the conclusion that he tact. If he occupied the latter position, he was guilty of contributory negligence. The would undoubtedly have had sufficient time, plea of an assumption of risk is a defense and, the sun not having set, ample oppor- in which, if the injury results from a peril tunity, to inspect the car near which he was ordinarily incident to the employment, the standing, and, having had experience in coup- question whether the servant was in the ling cars on which the rails had slipped in execution of due care at the time he sustainthis manner, he must have known that he

ed the injury is wholly immaterial. Railway could successfully perform the duty required Co. v. Husson, 101 Pa. 1, 47 Am. Rep. 690. of him only by stooping, so that the rails It is not alleged in the answer that plaintiff's might pass over his head when he effected intestate assumed the risk that caused his the coupling, and, if he failed to bend for- injury, and such averment is unnecessary, if ward low enough, the fault was his, and the hazard was ordinary, for the rule of the necessarily defeats a recovery. It might be common law is that when a servant, of suitinferred, from the fact that the coupling link able age and sufficient intelligence, enters inwas found fastened in the automatic coupler, to the employ of the master, he is presumed but not pinned in the common drawhead, that to understand, and, therefore, in consideration of the rate of compensation agreed to be on which they were loaded, and, it appearpaid, voluntarily assumes, all the risks ordi- ing that he was aware of a regulation of the narily incident to the business in which be company requiring persons coupling such engages (Johnston v. Railway Co., supra; cars to stoop for that purpose, it was held Brown v. Lumber Co., 24 Or. 315, 33 Pac. that the risk run by the brakeman was not 557; Snow v. Railway Co., 8 Allen, 441, 85 extraordinary. In Railroad Co. v. Plunkett, Am. Dec. 720; Hare v. McIntire, 82 Me. 240, 25 Kan. 188, it was held that where a rail19 Atl. 453, 8 L. R. A. 450, 17 Am. St. Rep. road company is in the habit of receiving 476; Wonder v. Railway Co., 32 Md. 411, cars from other roads loaded with timbers 3 Am. Rep. 143); and wbenever the law pre- projecting over the ends of the cars, so as to sumes a fact, it is not necessary to aver the make it dangerous for any one except a caresame in a pleading. Bliss, Code Pl. (3d Ed.) ful, skillful, and prudent person to attempt $ 175. The rule appears to be otherwise, how- to couple the cars together, it is not neglierer, in respect to extraordinary risks, in gence for the railroad company to order and which case the servant's assumption thereof, | permit such a person, who has been in the to be available as a waiver, must be affirma- employ of the railroad company doing that tively alleged in the answer. Mayes v. Rail- kind of business for about five months, to way Co., 63 Iowa, 562, 14 N. W. 340, 19 N. attempt to make such a coupling, where the W. 680; Fisher y. Lead Co., 156 Mo. 479, 56 attempt is made in broad daylight, although S. W. 1107; Stock Yards v. Goodwin, 57 it may be raining at the time. In Boyle v. Neb. 138, 77 N. W. 357; Lloyd y. Hanęs, 126 Railway Co., 151 Mass. 102, 23 N. E. 827, N. O. 359, 35 S. E. 611; Lee v. Mills Co., 21 the plaintiff's intestate, in attempting to R. I. 322, 43 Atl. 536. "The waiver of the couple cars, had his head crushed by pronegligence of the defendant,” says Mr. Jus- jecting timber, and, the injury baving octice Beck, in Wells v. Railway Co., 56 Iowa, curred in daylight, it was held that he as520, 9 N. W. 364,"places the case in the sumed the risk, and that no recovery could same position as though the defendant had be had. In Day v. Railway Co., 42 Mich. not been negligent; and without the negli- | 523, 4 N. W. 203, a brakeman, in stooping gence of the defendant there can be no re- to couple cars, had his fingers injured by the covery.” The servant's assumption of ex- coupling link, caused by lumber projecting traordinary risks is a waiver in advance of beyond the end of the car, and it was held all claims for damage that may arise in con- that the injury resulted from one of thu sequence of the master's negligence, and, as risks incident to his occupation, and that no a plea of such fact admits a right of action error was committed in taking the case from in the servant, but seeks to avoid recovery the jury. In Railway Co. v. Gower, 85 Tenn. by reason of the waiver, it seems to be neces- 465, 3 S. W. 824, a brakeman, in coupling sary to allege such defense, if relied upon. cars having been injured by lumber projectThe important question to be considered is ing beyond the end of the car, brought an whether the shifting of iron rails in transit, action against the railway company for the so that they project beyond the end of the damages sustained, and it was held that the car on which they are loaded, creates an ex- risk, being necessarily incident to the busitraordinary risk. · "The ordinary risks of a ness of railroad transportation, was assumed particular business," say Shearman and Red- by him, and that no recovery could be had. field in their work on Negligence (5th Ed.) § In Railway Co. v. Shean (Tex. Sup.) 18 S. 185, "are those which are part of the natural W. 151, an experienced switchman, having and ordinary method of conducting that busi- charge of an engine and its movements, unDess, even though they might fairly be called dertook, without objection, to couple a flat extraordinary with reference to a different car, with its load projecting over the end, business, or a different department of the to a box car, knowing the dangerous way in same business." In Jackson v. Railway Co., which it was loaded, and, having been in104 Mo. 448, 16 S. W. 413, it was held that jured in the performance of his duty, he when a railroad company is in the habit of brought an action to recover the damages receiving and transporting cars laden with sustained, but it was held that he had astimbers and iron rails projecting over the sumed the risk, and could not recover. For ends of the cars, the risk arising therefrom authorities to the effect that a brakeman in is the ordinary one assumed by a brakeman coupling cars on which the load projects beengaged in the company's service. Mr. Jus- yond the end of the car assumes the risk intice Black, speaking for the court, says: cident to the service, see Ely v. Railway Co. “The business of a brakeman is beset with (Tex. Civ. App.) 40 S. W. 174; Brennan v. many dangers which are incident to his busi- Railway Co. (Mich.) 53 N. W. 358; Railway ness, and these risks arising from cars loaded Co. v. Black, 88 Ill. 112; Scott v. Navigation with projecting timbers and rails are risks Co., supra. The reason upon which the prinincident to this particular business, and as ciple rests that material projecting beyond to that business are not extraordinary." In the end of the car is a risk ordinarily inRailway Co. v. Husson, supra, a brakeman cident to the business of a brakeman is thus was killed in coupling cars by having his succinctly put by Mr. Justice Snodgrass, in bead crushed between the ends of bridge Railway Co. v. Gower, supra, in which he frons projecting beyond the ends of the cars says: "Lumber of all kinds, iron, steel, and

finished structures must often necessarily be case where the load is capable of being platransported on cars of shorter length than ced so that no part of it will extend beyond the material to be transported. It may not the deck of the car; and that, if the ends of be practicable or proper to solidify the train the rails do project, it is because of careless by loading upon connected cars, and it must, loading, or is the result of displacement in of necessity, result that this loading will pro transit; and, further, that such displacement ject, and still the cars require to be coupled. is not an uncommon occurrence,-in fact, acTo hold that such a service is not to be an cording to defendant's witnesses, it is to be ticipated by a railroad employé as an occa expected. It is also to be noticed that, acsional, incidental, though extremely hazard- | cording to these same witnesses, whenever ous duty to be performed, would be to do so such material projected so far as to endanin manifest disregard of the demands of the ger an adjoining car, it was customary to age upon transportation lines, and their com put the rails in place, either by moving them mon and well-understood service in conform by hand, or by pushing them back, using ity to such requirements." It is contended by heavy timbers and a locomotive,—butting' plaintiff's counsel that this rule has no ap themi, as one witness expressed it.” In that plication to material which, when carefully case no question of assumption of risk was loaded, would not extend beyond the ends of considered, the decision being put upon the the car, and that, the car in question being alleged negligence of the defendant and the of the same length as the rails which were contributory negligence of the plaintiff's inloaded thereon, no necessity existed for any testate. In Scott v. Navigation Co., supra, projection of the rails, and that such exten the plaintiff, a brakeman, having been insion, caused by the shifting of the rails, was jured in coupling a car loaded with iron rails not an ordinary risk incident to the business that extended over the end of the car, seof coupling cars, and hence the court erred cured a judgment against the defendant for in not submitting the cause to the jury. In the damages sustained, in reversing which Corbin v. Railway Co., 64 Minn. 185, 66 N. Mr. Justice Thayer, in speaking of the plainW. 271, a brakeman in the defendant's em tiff's employment as an experienced switchploy having been killed while coupling cars, man

and car coupler, says: “When he one of which was loaded with steel rails that engaged in the company's service in that caprojected over the end of the car due to care pacity, he assumed all the ordinary risks inless loading or resulting from displacement cident thereto; and, unless the company subwhile in transit, the administrator of his es jected him to unnecessary danger, it was not tate brought an action to recover the dam liable. This was the gist of the action, and ages sustained, and, having secured judg he had no right to have his case submitted to ment therefor, the company appealed. The the jury without first proving that the comevidence showed that the brakeman knew pany did subject him to extraordinary risks that the rails projected; that he saw the con in the affair, and that his injuries were reductor who had charge of the train uncouple ceived as the direct consequence thereof." the car in question by stooping below the The decision, however, seems to rest upon rails, and was cautioned by him to “look out the principle of contributory negligence, the for that car, as the rails stick over"; that majority of the court holding that, as the the deceased stooped and made the coupling, plaintiff bad the right to inspect the car in but raised his head a second too soon, and question, and to refuse to couple it if he a trifle too high, whereupon he was immedi found the load thereon dangerous, and not ately pinned against the adjoining car by having reported to the foreman in charge of the extended rail. It also appeared that ma the defendant's yard the condition of the car, terial of this character often shifted in tran he was not free from negligence, nor was sit, and when it extended so far as to inter the defendant guilty of such negligence as fere with the adjoining car its transporta rendered it liable, and that a judgment of tion became dangerous, and it was the cus nonsuit should have been given. Mr. Chief tom to reload the car or to side-track it for Justice Lord, in a dissenting opinion, intithat purpose; and that, the conductor hav mates that the rails having shifted on the ing knowledge of the condition of the rails car in transit was an unusual occurrence, on the car, the company had notice thereof, and created an extraordinary risk. and it was held that the court could not say It will be remembered that the defendant as a matter of law that the defendant was is not engaged in operating a line of railway, not negligent in permitting the car to re but in receiving and switching cars, and in main in the train, and that the question of coupling them up into trains. The size of its the brakeman's contributory negligence was yard, and the length and number of its properly submitted to the jury. Mr. Justice tracks, are not disclosed by the evidence; and Collins, in speaking of the extension of the while the care demanded of it in the perrails, says: “It is to be remembered that formance of its business is commensurate this is not a case where, from the size or with the danger incurred, the same degree shape of the articles carried, they must of of care cannot, upon principle, be required necessity project over one or both ends of a of it as is exacted of a railway company encar, as will heary sticks of timber, or heavy gaged in general transportation business, in castings, or threshing machines, but it is a which case its trains are moved upon sched

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