Stout v. Union Pacific RailRoad

WILSON, J. Plaintiff, a brakeman employed by defendant in its yards at The Dalles, Oregon, brought this action for personal injuries pursuant to the Federal Employers’ Liability Act. (45 U.S.C.A. § 51 et seq.) The action was tried by a jury which rendered a verdict in favor of defendant. Plaintiff has appealed from the judgment entered on the verdict.

The principal question raised on the appeal is whether the evidence is sufficient to sustain the verdict. No citation of authorities is necessary on these propositions: (1) The burden is on plaintiff to prove that he was injured, that defendant was negligent in providing an unsafe appliance and that such negligence was the proximate cause of plaintiff’s injury; (2) when it is contended that the judgment is unsupported by the evidence the power of a reviewing court is limited to a determination whether there is any substantial evidence, contradicted or uncontradicted, that will support the judgment; (3) all conflicts in the evidence must be resolved in favor of the prevailing party. A review of the evidence in the instant action demonstrates that it is sufficient to sustain the verdict and the judgment entered thereon.

[101]' At the time of the accident plaintiff was engaged as a brakeman in riding on one of a cut of five freight cars for the purpose of controlling their speed and stopping them by means of operating a hand brake on one of the ears. Plaintiff contends the hand brake was defective and inefficient and when plaintiff operated it in the usual manner it failed to slow the movement of the ears and that by reason of his exertion of unusual force in attempting to turn the brake wheel he injured his back, for which he seeks to recover.

The five freight cars had been cut loose from a train and were rolling free onto a siding which had a slight grade in the direction in which the cars were rolling; plaintiff had been instructed to set the brakes and stop the ears when they had rolled clear of the switch; he boarded a box car on which there was installed an Ajax brake of a newer and presumably more efficient type than the brakes on the other ears; the wheel that operated the brakes was located at the end of the ear and was about 2 feet in diameter, set parallel with the end of the ear; plaintiff stood on a small platform facing the wheel; in order to tighten the brake it was necessary to turn the wheel clockwise; usually the brake can be set with one hand. Plaintiff took hold of a grab iron with his left hand and wound the brake wheel with his right; the cars did not stop and he then used both hands, pulling with all his strength, at which time he testified his back was injured. He stated the cars kept on rolling arid he stepped off.