Hopkins v. S., P. S. Ry. Co. , 137 Or. 287 ( 1931 )

Petition for rehearing denied September 15, 1931 ON PETITION FOR REHEARING (2 P.2d 1105) Respondent's carefully prepared petition for a rehearing has caused us once more to bestow much consideration upon this action.

The brief accompanying the petition cites and reviews many authorities, most of which we have read. None of them, however, involved a set of circumstances where an intelligent young man, who had ample time to make measurements, came to his injury by reason of his failure to do so. That is the situation brought before us by this appeal. The plaintiff was not called upon to measure clearance between the top of a car and the ceiling of a tunnel, while riding upon a rapidly moving train approaching the tunnel, like Wainright v. Railway Co., 9 Ohio Circuit Dec. 530; nor was the plaintiff required to leap upon a locomotive, like the nineteen-year-old Syrian laborer in Cannonv. Railway Co., 29 S.D. 433 (137 N.W. 347); nor did the plaintiff's duty subject him to the hidden danger of repairing, as a lineman, an electrical transformer, like the deceased inFisher v. Prairie, 26 Okla. 337 (109 P. 514); nor was he deceived into putting his hand into a power-driven sausage cutter by an unexpected crust which formed over the top of the hopper, like the inexperienced workman in Richardson v. Swift Co., 37 C.C.A. 557 (96 Fed. 699). The foregoing and many of the other cases upon which the plaintiff relies may be distinguished from the instant case in the circumstance that those injured workmen were required to act suddenly or instantaneously; in some instances were required to keep up with the machine which they were attending. All of them were inexperienced workmen; in fact, the plaintiff in Cannon v. Railway Co. was a laborer who declared he had been drafted against his will to act as a switchman. In all of those instances the opportunity for measuring distance or taking note of the dangerous factor was very brief.

In the case at bar nothing was in motion when the plaintiff was required to act. Nothing hurried him. He freely conceded that he was aware of the results that would follow if he failed to provide sufficient clearance. His sole criticism of his employer's instructions is an alleged failure of the latter to instruct him how to measure the distance of three feet. We all know from our earliest childhood experiences the results that followed when we failed to provide sufficient clearance, and each one of us can recall as one of his earliest achievements the learning of a method of assuring clearance for our playthings and ourselves. This involved nothing more than the measuring of short distances. Everyone daily is required to measure distance in providing clearance for his safety in making movements; we do so as we park our automobiles, place furniture, walk about the streets, enter elevators, etc. Thus from innumerable experiences extending from infancy we all have acquired methods of measuring short distances. And in the absence of being compelled to use them hurriedly or in the midst of much motion and confusion our methods do not fail us where precise accuracy is nonconsequential.

There was nothing complicated about the task which the plaintiff was required to perform. He knew, according to his own frank admissions, that in making the cut he must provide two or three feet of clearance. The objects to be separated by this distance (as a matter of fact one foot of clearance would have sufficed) were plainly visible; the one was a bulky freight car and the other was a bright, shining rail. Both were motionless and the plaintiff was between the two. Sufficient time was available so that he could have measured the space by any method which his past experiences had taught him, and so that he could also have applied any test he cared to select as an assurance that he had actually provided sufficient space. As he stood there he knew that upon his signal the engine with its accompanying cars, with himself aboard, after going forward a short distance would return upon the rails where he stood, and that they would be unable to dodge the obstructing freight car. Under these circumstances, we do not believe that anyone can say that the defendants' failure to tell the plaintiff how to measure a distance of three feet was the cause of his omission to provide a foot or more of clearance.

The plaintiff urges that the issue involved in this case was for the jury's determination. As above suggested, the foregoing facts were established by uncontroverted evidence. In fact, the plaintiff himself employs the above facts in his argument that an issue awaited the jury's determination. Apparently he concedes that, if he had been taught by the defendant how to measure three feet and had failed to employ the method thus taught him at the crucial moment, the responsibility for the accident would have been upon him. But, as stated in our previous decision, a failure by the employer to instruct is not culpable if the injured employee acquired the same knowledge from other sources. We believe it is evident that he did.

We conclude that the petition for rehearing must be denied.

BEAN, C.J., RAND and KELLY, JJ., concur.