Aune v. Oregon Trunk Ry.

• Decision Date: 26 November 1935
• Citation: 51 P.2d 663,151 Or. 622
• Parties: AUNE v. OREGON TRUNK RY. et al.
• Court: Oregon Supreme Court

51 P.2d 663

151 Or. 622

AUNE v. OREGON TRUNK RY. et al.

Supreme Court of Oregon

November 26, 1935

In Banc.

Appeal from Circuit Court, Deschutes County; T. E. J. Duffy, Judge.

Action by Anton Aune against the Oregon Trunk Railway and another. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

Jay H. Upton, of Bend (Upton & De-Armond, of Bend on the brief), for appellant.

Fletcher Rockwood, of Portland (Carey, Hart, Spencer & McCulloch of Portland, and N. G. Wallace, of Bend, on the brief), for respondents.

RAND, Justice.

This is an action to recover the damage resulting from the burning of a warehouse and blacksmith shop in Bend. The defendants demurred to the amended complaint upon the ground that it failed to state a cause of action. The trial court sustained the demurrer, and, upon plaintiff's refusal to plead further, dismissed the action from which judgment the plaintiff has appealed.

The complaint alleges that on August 14, 1933, the defendant Oregon Trunk Railway, switched certain empty boxcars on to a spur leading to plaintiff's warehouse and left them alongside of the warehouse without locking the doors thereof and without placing any guard or watchman over them; that the spur had been constructed for the purpose of transporting freight to and from said warehouse and was under the supervision and control of the defendant company; that on the night following the spotting of these cars, the defendant company permitted certain unknown persons designated in the complaint as "transients" or "hobos" to enter the cars and start a fire therein which burned the cars, and, communicating with the warehouse and blacksmith shop, burned them, together with their contents.

It is alleged that the spotting of these cars on the spur alongside of plaintiff's warehouse without locking their doors or placing them in charge of a watchman and in permitting hobos to congregate in them created a nuisance and fire hazard to plaintiff's property and constituted negligence upon the part of the defendant company and H. M. La Bertew, its station agent, who was in charge of the movement of the cars and caused plaintiff to sustain the injury complained of.

The complaint alleges that the defendant company permitted these hobos to occupy these cars, but there was no allegation in the complaint that the defendant company, or any of its employees, knew of their presence in the cars, and it is specifically alleged in the complaint that these unknown persons "had no lawful or other right to enter said box cars at said time."

Where as here, a complaint is challenged by a demurrer, it is to be construed most strongly against the pleader. Corliss v. Van Duzer, 132 Or. 265, 285 P. 253; McIntosh Livestock Co. v. Buffington, 108 Or. 358, 217 P. 635. The allegation, therefore, that the persons who started the fire that burned defendants' boxcars and plaintiff's buildings had no right to enter the boxcars directly contradicts the allegation that they had been permitted to occupy them, and hence plaintiff's complaint must be construed as if it had alleged that such persons were not invitees, permittees, or licensees of the defendant company at the time they started the fire which destroyed plaintiff's buildings. If, however, a different construction should be placed upon the complaint, and it should be held that the allegations were sufficient to charge that the relationship of licensor and licensee existed between the defendant company and these unknown persons while congregated in these empty cars, then the doctrine that applies to a licensor landowner, namely, that the owner of land is not liable for injury caused by the acts of licensees unless such acts constitute a nuisance which the owner knowingly suffers to remain, would be applicable to the defendant company. Brooks v. Henrietta Mills Co., Inc., 182 N.C. 719, 110 S.E. 96; Inhabitants of Rockport v. Granite Co., 177 Mass. 246, 58 N.E. 1017, 51 L. R. A. 779. And since the mere presence of these hobos in these cars at the time of the fire would not, in itself alone, be sufficient to constitute a nuisance, the defendant company would not be responsible for the acts of such persons.

In every civil action for damages, before the plaintiff can be entitled to recover, he must allege and show that some wrongful act has been committed by the defendant, and that he has sustained some legal damage as a consequence of such act. In 20 R. C. L., on page 10, the rule is stated thus: "In order to constitute actionable negligence there must exist three essential elements-namely, a duty or obligation which the defendant is under to protect the plaintiff from injury; a failure to discharge that duty; and injury resulting from the failure. Not only must the complaint disclose these essentials, but the evidence must support them, and the absence of proof of any of them is fatal to a recovery. It is not to be supposed that anyone will attempt to deny the truth of these propositions; they are platitudes."

No act is an actionably negligent act (1) till it inflicts injury on some other person; (2) which injury is a natural and probable result to be foreseen by a reasonable person at the time of acting. See footnote 9 in 1 Beven on Negligence (2d Ed.) p. 91. Hence, in this case, it being a tort action based on negligence or want of due care, in order to state a good cause of action, the plaintiff must allege in his complaint (1) that the defendants owed some duty or obligation to him which they failed to discharge or fulfill; and (2) that the burning of the buildings was the natural and probable consequence of defendants' failure to perform such duty or obligation.

There is no allegation in the complaint of any fact or set of facts which made it wrongful or a violation of plaintiff's rights for the defendants to spot empty freight cars on the spur and leave them overnight alongside of plaintiff's warehouse. The spur was owned and operated by the defendant company. In the nature of things, empty cars, when not in use, cannot be safely left on the main line, but must be switched on to some spur or side track. This conforms to railroad practice everywhere, and there was no allegation in the complaint that it is the usual or customary usage of railroads to lock the doors of empty freight cars, or to place them in charge of a watchman when not in use and standing on some spur or switch. For this reason, none of the acts alleged in the complaint were negligent or wrongful. The demurrer, therefore, was properly sustained.

Moreover, if the acts of the defendants were negligent as contended for, they were too remote and not the proximate cause of the injury.

"*** Negligence is the proximate cause of an injury only when the injury is the natural and probable result of it, and, in the light of attending circumstances, it ought to have been foreseen by a person of ordinary care. Those elements may exist and the producing cause be followed by lapse of time and several intervening events, so long as they are all set in motion by the first cause, and all form a continuous chain down to the injury." The above is quoted by Watson on Damages, § 32, from Deisenrieter v. Kraus-Merkel Malting Co., 97 Wis. 279, 72 N.W. 735.

Under the circumstances as stated, the burning of plaintiff's buildings by hobos who had congregated in these empty unlocked boxcars was not a natural and probable consequence of leaving them on the spur, nor was it a result which, in the light of attending circumstances, should or...