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

• Decision Date: 06 December 1927
• Citation: 123 Or. 259,261 P. 899
• Court: Oregon Supreme Court
• Parties: CARR v. OREGON-WASHINGTON R. & NAV. CO.

261 P. 899

123 Or. 259

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

Supreme Court of Oregon, En Banc.

December 6, 1927

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by Dora Carr, administratrix of the estate of Howard J Caton, deceased, against the Oregon-Washington Railroad &amp Navigation Company. Judgment for plaintiff, and defendant appeals. Reversed.

This is an action by the plaintiff as administratrix of the estate of Howard J. Caton. She alleges that the defendant's negligence caused the death of deceased. The verdict and judgment were for the plaintiff; defendant appeals.

Various errors are assigned; among these we find that the defendant contends that the lower court erred when it denied defendant's motion for a nonsuit and also its motion for a directed verdict. We believe that the case can be disposed of by a consideration and disposition of these rulings.

The facts are: In the Blue Mountains of this state is a small community known as Kamela. Here the defendant maintains the helper engines which it employs to haul its trains over the mountain grades. At Kamela it has installed a station house partly used as a hotel, also two main tracks and six others there are oil tanks, small outbuildings, water tanks, a coal chute, and similar equipment. Deceased, at the time of his death, was a boy of the age of 8; his grandmother operated the hotel portion of a station house. The hotel was comparatively small, and derived almost all of its patronage from the railroad men; about 300 or 350 feet from the station house the defendant had a quantity of ties for the maintenance of its tracks. These ties were nicely arranged in piles. Beyond these piles of ties were the coal chute, oil station, tanks, water tanks, and other equipment we have previously mentioned; all of the foregoing buildings, tanks rails, and other structures were upon property owned by the defendant. Some of the plaintiff's witnesses testified that the people making up the community used portions of the right of way quite freely, more especially in winter; but the points used are not indicated in the evidence. The right of way near the depot was 200 feet in width. An area about the station house was graveled so as to mark the station grounds. White posts set in the ground, the graveled area, and the arrangement of the outbuildings indicated the area set apart for those using the depot and hotel facilities. The ties, tanks, coal chutes, and other equipment were at least 300 feet away.

On May 1, 1926, when supper had been prepared, the deceased asked his grandmother if he could go and call Jack Holst, a boy to whom he was related and who also stayed at the hotel, for supper; the permission being granted, Howard left the kitchen and apparently went down the right of way to the vicinity of the place where the ties were piled. Here he found Jack and another boy playing about some rails that were lying upon the ground. For a while he also played with the rails, then he amused himself by walking around. A few minutes later he played upon the pile of ties. After the other two boys had gone some steps toward the station house Howard evidently descended from the pile of ties, and then one of the ties fell upon him and crushed out his life. The ties were piled 5 feet from the fence which marked the edge of defendant's right of way. No attractive object was near the ties; the ties themselves did not have the bright, new appearance which is inherent in newly cut lumber, but had been treated with chemical solutions in the defendant's tietreating plant at The Dallas, which gave to them a dark appearance. They were piled in accordance with rules promulgated by the defendant. So that these rules might be more readily understood and followed by the defendant's workmen, it prepared and distributed blueprints showing precisely how to pile ties. The method thus set forth was to place two ties upon the ground parallel to one another. Then a row of eleven ties was placed on top of these two at right angles to them; the two outer ties were placed on their 9-inch surface; the nine inner ones were placed upon their 11-inch surface; thus the two outer ties projected 2 inches above the inner ties. The next layer was placed upon these eleven ties in a similar fashion except at right angles. This arrangement thus allowed an air space between the rows. Two of the piles contained nine layers of ties each, including the two foundation ties; the third pile was a fractional pile, containing only two and a portion of a third layer of ties. These piles were not permanent structures, but constituted a surplus to which the maintenance department might have access from time to time for the repair of the defendant's roadbed.

The plaintiff charges that the defendant was negligent in its method of piling the ties; particularly the complaint alleges:

"* * * That the top row of ties on the westerly pile extended north and south lengthwise and were so laid that there existed a ledge only 5 1/2 inches wide to support the outside tie on the east side thereof; that said top row of ties should have had, but did not have, a tie placed on the center thereof at right angles with said ties as a means of holding them securely in place; that said piles of ties were thus maintained by said defendant at all times herein complained of; that, because of the narrowness of the ledge aforesaid, the said outside tie on the top of the east side of the westerly pile of ties rested insecurely thereon and was liable to fall from its position to the ground, and, because of that fact and the manner in which said ties were piled, said piles were dangerous to any one near them and were also rendered dangerous by the failure of said defendant to place a binder tie on top of said westerly pile of ties, as alleged, all of which danger was at all times known to said defendant, but that said defendant failed to place an inclosure around said piles of ties as a protection to people who might be near them, or to place any sign thereon as a warning thereof to any one approaching to whom the danger was unknown; * * * that said defendant, in piling said ties, and particularly the outside top tie on the east side of the west pile, and maintaining them as alleged, was guilty of carelessness and negligence; that said defendant was likewise careless and negligent in not placing a binder tie on the top of said pile; that said defendant was also negligent and careless in not placing an inclosure around said ties to prevent the children, including the deceased, who were allowed by said defendant to play in said yards and other children from having access to said piles and in not placing a notice or sign thereon, warning them that it was dangerous to approach said ties."

Roy F. Shields, of Portland, and Geo. T. Cochran, of La Grande (Arthur C. Spencer, Cochran & Eberhard, and W. A. Robbins, all of Portland, on the brief), for appellant.

E. R. Ringo, of La Grande, for respondent.

ROSSMAN, J. (after stating the facts as above).

Both parties have treated the law applicable to the foregoing facts as though this court has embraced that body of law frequently referred to by the name of turntable cases, the pioneer of which was Lynch v. Nurdin, 1 Q. B. 113 Eng. Reprints, 1041, and which first received serious attention when the federal Supreme Court announced its decision in Sioux City P. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745. This court has many times dealt with groups of facts somewhat analogous to those embraced in the attractive nuisances cases, but has never been compelled to squarely adopt or reject the doctrine. Some of our cases are Hill v. Tualatin Academy, 61 Or. 190, 121 P. 901; Riggle v. Lens, 71 Or. 125, 142 P. 346, L. R. A. 1915A, 150, Ann. Cas. 1916C, 1083; Burroughs v. P. Tel. & Tel. Co., 109 Or. 404, 220 P. 152; Cooper v. North Coast Power Co., 117 Or. 652, 244 P. 665, 245 P. 317; Fisher v. Burrell, 116 Or. 317, 241 P. 40; Haynes v. O. W. R. & N. Co., 77 Or. 236, 150 P. 286; Ward v. Southern P. Co., 25 Or. 433, 36 P. 166, 23 L. R. A. 715; Kesterson v. Cal. Or. Power Co., 114 Or. 22, 228 P. 1092; Rathbone v. Oregon R. Co., 40 Or. 225, 66 P. 909.

Since the doctrine of the turntable cases found its way into some units of our American jurisprudence, the analysis and criticism which it has received from courts and writers has revealed both weakness and strength in the doctrine. The very fact that it has survived the criticism and found its way into the law of a very large number of jurisdictions is quite persuasive that its foundation is something more substantial than the court's sympathy for an injured child. But the criticism of the doctrine has shown to many courts the wisdom of limiting the application of the doctrine more stringently than the first decisions indicated. Thus the federal Supreme Court has very recently said:

"* * * But the doctrine needs very careful statement not to make an unjust and impracticable requirement. * * * But the principle, if accepted, must be very cautiously applied." United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A. L. R. 28.

The fallacy of the invitation fiction which originally was the backbone of the doctrine has been quite fully revealed. For instance, suppose that the child, who has responded to the so-called invitation to come and play, should carry away the attractive instrumentality after having played with it, and is now being sued for conversion, or is being prosecuted by the state, or let us suppose that his act has seriously injured the object, and that he is being sued for damages, would the so-called invitation become defensive matter in such a case; we do not believe for a moment that any court would carry the...