Calhoun v. Portland Ry., Light & Power Co.

• Decision Date: 24 February 1919
• Docket Number: 15054.
• Court: Washington Supreme Court
• Parties: CALHOUN v. PORTLAND RY., LIGHT & POWER CO. POWER CO.

178 P. 805

105 Wash. 592

CALHOUN v. PORTLAND RY., LIGHT & POWER CO. POWER CO.

No. 15054.

Supreme Court of Washington

February 24, 1919

Department 2.

Appeal from Superior Court, Clarke County; Everett Smith, Judge.

Action by Victor Harry Calhoun against the Portland Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Miller & Wilkinson, of Vancouver, and Griffith, Leiter & Allen and F. J. Lonergan, all of Portland, Or., for appellant.

McMaster Hall & Drowley, of Vancouver, and Wilbur, Spencer & Beckett of Portland, Or., for respondent.

FULLERTON, J.

In this action the respondent recovered against the appellant for personal injuries received by him while attempting to board a street car owned and operated by the appellant.

The specific charge of negligence in the complaint is in substance this: The respondent approached the street car line of the appellant at the usual stopping place of the cars intending to board, as a passenger, an oncoming car. The car stopped at the place named in such manner as to lead him to believe he was invited to enter it. He attempted to enter the car, and had gotten upon the steps thereof, but had not reached a place of safety, when the car was started forward suddenly, and with sufficient force and violence to throw him to the ground and under the wheels of the car.

In its answer the appellant, while not denying that the respondent was injured by the car at the time and place alleged in his complaint, denied that the injury was caused in the manner therein alleged, averring that the injury was the result of the respondent's own negligence in that he attempted to board the car while the same was in motion, at a time when he knew, or by the exercise of due care and caution for his own safety ought to have known, that an attempt to so board the car was liable to cause him to fall and receive an injury. The affirmative allegations of the answer were denied by the reply, and at the trial the contest before the jury was whether the accident was caused in the manner alleged in the complaint or in the manner set forth in the answer.

At the appropriate time in the course of the trial the appellant requested the court to give the jury the following instruction:

'The court instructs the jury that if you find from the evidence in this case that the plaintiff was injured by reason of his attempting to board a moving car of the defendant, no matter how fast or how slow the car may have been moving, and without any negligence on the part of the defendant, then your verdict must be for the defendant.'

The instruction was not given in the form requested, and it is contended by the appellant that it was not given in substance or effect. On the contrary, it is contended that the court gave an instruction to the opposite effect. The refusal to give the requested instruction and the giving of the claimed contrary instruction constitute the first error assigned.

It will be conceded, we think, since the respondent set forth in his complaint the specific cause of the accident and the specific manner in which it occurred, and since the allegation was that the car had stopped at the time he attempted to board it, he was bound to prove the allegation as alleged, and the appellant was entitled to have the instruction requested given to the jury, either in the language of the request or in language of the same purport and effect. But we cannot conclude that the charge was not to that effect. The instructions are too extended to be quoted here in full, but their perusal leaves little doubt that the jury must have understood from them that they could not find for the appellant unless they found that the attempt to board the car was made while the car was standing still, and not before it had ceased or after it resumed its motion. In stating the issues the court specifically mentioned the allegation that the car had stopped as a material allegation of the complaint, and in its general instruction told the jury that the burden was upon the respondent to prove all of the material allegations of the complaint by a preponderance of the evidence. Again, in stating the grounds upon which the appellant's liability rested, one of the conditions recited was that the car must have stopped for plaintiff to board. Upon the specific question this language was used:

'It is not a question of the rate of speed at which a car is moving which justifies an attempt to board it. If defendant's operatives did not stop for plaintiff to board said car, or if said operatives did not know that he was attempting to board said car, they cannot be charged with negligence towards plaintiff in the operation of the car at the time of the accident.'- The court did, however, in the sentence preceding the quotation made, give the further instruction, namely:

'If you find that the plaintiff attempted to board the street car while the same was in motion, and that the attempt to board the car while in motion was the proximate cause of the injury, or contributed to the accident resulting in his injury, then he cannot recover, and your verdict must be in favor of the defendant.'

It is upon this instruction that the contention is founded that the jury were allowed to depart...