Fagan v. Union Pacific Railroad

McCOMB, J. From a judgment in favor of plaintiff, after

trial before a jury, in an action to recover damages under the Federal Employers’ Liability Act [34 Stats. 65], 45 U.S.C.A. section 51, defendant appeals.

The record discloses the following pertinent facts:

On March 14, 1946, plaintiff was a brakeman employed by defendant and was injured while performing his duties on a lumber spur track at the Bridal Veil Lumber Company at Bridal Veil, Oregon, under the following circumstances: The track on which the accident occurred extends in a general easterly and westerly direction, with a curve to the right, or north. At the time of the accident a movement was being made in a westerly direction on the lumber mill spur track. The engine was facing westerly, shoving five freight cars ahead of it. The most westerly, or lead car, was to be stopped at the west end of the spur track. To reach the point where this car was to be stopped it was necessary for the five cars to be shoved over a ramp crossing of the lumberyard. Defendant provided special instructions concerning this crossing which required that this particular place must be protected by a member of the crew preceding any movement across the roadway. There was also a rule of defendant [585]company which required that when a brakeman, riding a car and giving signals which controlled the movement of the car, passed out of the sight of the other trainmen the movement of the train must be stopped immediately. At the westerly edge of the roadway there was a structure that caused impaired clearance and it was not possible to ride the side of a boxcar past that point. It was therefore necessary for a brakeman who was required to ride the side of the lead car on approaching this point to crawl from the side of the car onto the front end sill of it. The roadway was about 14 feet wide.

Plaintiff was instructed by the conductor to have the car shoved down the spur and to spot the lead car at “21,” and that was all he had to do, since he had told both foremen at the Bridal Veil Lumber Company that the move was to be made. The conductor did not station one of the trainmen at the roadway but instead told the plant foremen and relied on them to keep the crossing clear. As the engine started to move the cars westerly on the spur track at position “21,” plaintiff rode on the ladder on the side of the west end of the lead ear. As the move proceeded, plaintiff, as he rode the car, was out of the vision of the engineer, so it was necessary to station another man at a point about halfway between plaintiff and the engineer. The man stationed there was Mr. Apperson, whose duty it was to relay signals from plaintiff to the engineer. When the lead car was about 40 feet from the ramp crossing plaintiff gave a slow signal so that he might have the opportunity of climbing around on the front end of the car. This signal was not obeyed or acted upon by the engineer. The train continued at its then speed of about 4 or 5 miles an hour. After giving the signal, plaintiff started to climb around onto the front end of the ear and in doing so he went completely out of sight of the other trainmen. The train was not stopped immediately as required by the rule hereinbefore mentioned. It is conceded that had the engineer observed the rule, the train, at the speed at which it was then traveling, could have been stopped almost instantly.