Adskim v. Oregon-Washington R. & Nav. Co.

• Decision Date: 30 December 1930
• Citation: 294 P. 605,134 Or. 574
• Parties: ADSKIM v. OREGON-WASHINGTON R. & NAV. CO.
• Court: Oregon Supreme Court

294 P. 605

134 Or. 574

ADSKIM v. OREGON-WASHINGTON R. & NAV. CO.

Supreme Court of Oregon

December 30, 1930

Department 1.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Action by John N. Adskim against the Oregon-Washington Railroad &amp Navigation Company, a corporation. Judgment for plaintiff and defendant appeals.

Affirmed.

This case was originally assigned to the late Mr. Justice McBride. Owing to his fatal illness beginning in April, 1930, sooner disposition of the case could not be made.

This is the second appeal in this case. For a statement of the case and the issues involved see Adskim v. O.-W. R. & N Co., 129 Or. 169, 276 P. 1094. There was no change in the issues on the second trial. There was some additional evidence adduced by both parties. Some new questions of practice are raised on this appeal.

W. A Robbins, of Portland (A. C. Spencer and F. J. Betz, both of Portland, on the brief), for appellant.

Frank C. Hanley, of Portland, for respondent.

COSHOW C.J.

Questions of law which have arisen and been decided upon a former appeal become the law of the case so far as applicable to the facts developed on the second trial. Reed v. Hollister, 106 Or. 407, 212 P. 367; Douglas v. Rumelin, 130 Or. 375, 377, 280 P. 329; Bloech v. Hyland Homes Co., 128 Or. 292, 299, 274 P. 318; Hostetler v. Eccles, 112 Or. 572, 578, 579, 230 P. 549.

In addition to the testimony adduced by plaintiff in the former trial, he introduced the deposition of J. R. Livingston, who was night operator in the employ of defendant at Hilgard at the time of the accident. Mr. Livingston testified that he went to work at 4 p. m. on the day of the accident, that at that time there was a pile of cinders and gravel between the main and passing tracks, and that he saw plaintiff stumble over it.

Defendant insists on the same defense in the second trial that it did on the first. It contends now, as it did on the first appeal, that there is not sufficient evidence of neglect on the part of defendant to justify the submission of the case to the jury. The evidence adduced at the first trial was repeated at the second trial, with some additional testimony. For that reason the decision on the first appeal is controlling in this appeal upon that issue. There is more than a mere scintilla of evidence of negligence in the record. There is substantial material evidence of negligence. The additional evidence was merely cumulative.

Did plaintiff assume the risk? That question presents the principal issue on this appeal. Defendant argues that, in alighting from the train in the darkness, without knowing where he was going to land, plaintiff assumed the risk of the injury he received as a result. That question was also decided in the former appeal against defendant.

Defendant contends that plaintiff alighted from the train while it was moving from 5 to 8 miles an hour to save himself the exertion of remaining on the train until it stopped and then walking from 800 to 900 feet to the station. The evidence tends to show that plaintiff's conduct in alighting from the moving train was the customary, ordinary, and usual practice of brakemen. He was required to go to the station to get the list of cars his train was to pick up at Hilgard.

We cannot say as a matter of law that plaintiff so alighted from the train as a matter of personal convenience. Neither can we hold plaintiff chose a dangerous method of doing his work when he could have taken a safe way. This contention was also disposed of in the first appeal. There is no material difference in the evidence on that issue, if issue it may be called, between the first trial and the second. Defendant concedes that brakemen were accustomed to proceed as plaintiff did.

There is evidence in the record tending to show that there was a path from the passing track where plaintiff alighted from the train to go to the station, and said path was habitually used by brakemen when going from the train to the station for orders. The evidence also tends to show that the alleged pile of cinders and gravel obstructed that path. The evidence also tends to show that plaintiff had no knowledge that said obstruction was in the path. The facts being substantially the same in the second trial as in the first, the decision on the former appeal is the law on this appeal on that issue.

Defendant insists that plaintiff used an inefficient lantern, although the defendant provided for his use an efficient lantern. Much discussion appears in the briefs regarding the extent the electric Conger lantern reflected its rays and whether or not that reflection was directly down or circular. In our view of the case, it is not very material. Defendant acquiesced in the use of the kind of lantern employed by plaintiff at the time he was injured. Some of the brakemen bought their own electric lanterns and defendant supplied them with the light bulb to be used in said lanterns.

Defendant is not in a situation, therefore, to complain about the particular lantern used by plaintiff. It furnished the light used by plaintiff, and cannot now be heard to say that it was an improper light. The position taken by defendant with reference to the lantern is not consistent. It argues that the light was cast directly down in one part of its brief and in another part thereof argues that the lantern used by plaintiff on that occasion threw a circular light further than that testified to by plaintiff. Defendant introduced testimony tending to prove that plaintiff should have seen the alleged pile of cinders and gravel. Regardless of that fact, and in the light that defendant supplied the lamp used in the lantern, there is substantial evidence in the case tending to show that plaintiff did not see the alleged obstruction between the main track and siding track until he stumbled over it.

It is not the duty of this court to weigh the evidence adduced by the opposing parties nor to pass on the credibility of the witnesses in an action at law. We cannot say as a matter of law, because it was possible for plaintiff to have discovered the obstruction, that he did so before he stumbled over it. It was for the jury to determine whether or not he ought to have seen the obstruction. One on a moving car will not see as distinctly as one who is standing looking at an object.

The witness Livingston, whose deposition was taken, said he could see the obstruction some 20 or 25 feet therefrom while he was standing on the platform of the station. But the witness Livingston saw the obstruction when he went to work at 4 o'clock in the afternoon. He knew it was there. Plaintiff testified that he did not know it was there, had no warning that it was there, and there was no light upon it to attract his attention.

We agree with the opinion in the former appeal that that question was for the jury to determine, and its verdict concludes this court upon that issue. The fact that there was no evidence regarding the power of the electric Conger lantern in the first trial can make no difference so far as the question is one for the jury to answer. We cannot say as a matter of law, because the electric lantern did not cast its rays as broadly as the oil lantern would have done, that plaintiff assumed the risk of stumbling over an object which should not have been between the two tracks.

Defendant's testimony tends to show that there was no obstruction at the place plaintiff stumbled causing his fall. Defendant's testimony was addressed to the jury for the purpose of proving that no such pile of cinders and gravel as plaintiff described was at that place. There was a direct conflict on that matter between plaintiff and defendant's evidence. The matter was properly submitted to the jury for its decision.

Both briefs are devoted largely to discussing the weight of the testimony. We must confine our investigation to determining whether or not there is material evidence tending to support the allegation of negligence. In view of the fact that this very question was thoroughly considered on the former appeal, and that the only additional evidence in the record is cumulative, requires us to hold that the question of negligence was determined in the former trial, and that is the law of this case.

Another difference between the evidence on the two trials claimed by defendant is that it was not clearly shown at the first trial that it was necessary to place ballast between the main and passing tracks at Hilgard. This argument might be persuasive were it not for the fact that defendant insisted at the trial that there was no ballast left between the two tracks at the time plaintiff was injured. It is not claimed that it was necessary to leave ballast between the two tracks so as to form an obstruction there.

If in alighting from the train plaintiff had found conditions as they usually were at that place, and stumbled and fell, a different question would be presented. The evidence adduced by defendant tends to show that defendant did not leave ballast in front of the station overnight without such ballast having been spread. It denies absolutely that a pile of ballast, such as is described by plaintiff in the instant case, was there. One would imply from this evidence that defendant intended to keep the space between the passing tracks, where brakemen were wont to travel when alighting from a train to go to the station for orders, clear and free from all obstructions.

Defendant is not charged with negligence because it was ballasting its tracks in the usual manner, but, according to the testimony of defendant, it was not usual to leave ballast in an irregular pile so as to obstruct a passageway for brakemen. Whether or not it was negligence for it to do so was a...