Cassida v. Oregon Ry. & Nav. Co.

• Decision Date: 07 March 1887
• Citation: 13 P. 438,14 Or. 551
• Parties: CASSIDA, Adm'r, etc., v. OREGON RY. & NAV. CO.
• Court: Oregon Supreme Court

13 P. 438

14 Or. 551

CASSIDA, Adm'r, etc., v. OREGON RY. & NAV. CO.

Supreme Court of Oregon

March 7, 1887

Appeal from circuit court, Wasco county.

A.S. Bennett, for appellant.

Rufus Mallory, for respondent.

THAYER J.

The appellant, as administrator of the estate of Mary Elizabeth Cassida, deceased, commenced an action against the respondent for causing her death. He alleged in his complaint that the respondent's agents and employes, while running one of its trains of cars and locomotives upon its railroad which runs between Portland and The Dalles, and points beyond carelessly and negligently, and with gross and wanton negligence, ran its said locomotive upon and over appellant's said intestate. The respondent denied any negligence upon its part, and alleged that the occurrence happened in consequence of the negligence of the deceased her parents, and those having her in charge. There is no material difference between the respective counsel as to the general facts of the case. The respondent's brief contains the following statement:

"The respondent owns and operates a railroad from Portland to The Dalles. There is a station on the line of its road between these points, called 'Cascade Locks,' at which trains stop in passing each way. At the station is a platform one hundred feet or more in length, by the side of the railroad. At a point on the railroad 600 or 700 feet east of the station a trestle commences, which extends 150 or 200 feet east over a ravine, which is 18 to 20 feet deep from the top of the trestle. From the west end of this trestle the grade of the road is up each way 36 feet to the mile, and extends at that grade easterly something over a mile, and as far, and perhaps further west. The track is straight, running east from the station to and over the trestle, and about 1,100 or 1,200 feet beyond, where it bends to the right around an elevated point, and passes out of sight of one at either end of the trestle. About three-fourths of a mile east from the station, and out of sight round the curve, is a whistling-post. The up grade extends east past the whistling-post one-fourth or one-half of a mile. A train of cars moving west on the railroad reaches this 36-feet down grade to the west about one-fourth to one-half mile east of the whistling-post, from which point it will run to the station without steam, and its speed down the grade is regulated and controlled by the brakes. A county road crosses the railroad track about 70 or 80 feet west of the west end of the trestle.

"On the day of the accident, June 5, 1884, the regular freight train, consisting of a locomotive, 17 loaded cars, and a caboose, was moving west on the respondent's road, and was in charge of a conductor, two brakemen, an engineer and fireman. The train hands all swear that the engineer sounded the whistle at the whistling-post; that the train was moving down the grade without steam, under control of the brakes, at its usual speed of 10 or 12 miles per hour. The engineer swears that, as the locomotive came around the curve to the straight track leading over the trestle to the station, he discovered three persons on the track near the east end of the trestle, and apparently in the act of crossing the railroad, but in an instant afterwards he discovered that they had started to cross the trestle. He instantly called for brakes, reversed his engine, turning the drive-wheel backwards, and applied sand to the track, sounded an alarm with the whistle. The brakemen and conductor applied the brakes as rapidly as possible, doing all in their power to stop the train. The persons on the track were three daughters of John Cassida, the appellant, aged, respectively, seven, nine, and eleven years. The children ran along the trestle, ahead of the train, to within ten or twelve feet of the west end, when the elder two girls let go the youngest, and jumped off, the youngest lying down on a tie with her right arm around the track, and her head upon it, where she was struck by the wheels of the locomotive, and her head severed from her body, the train passing on about its length from where she was killed before it could be stopped. The distance from where the children could be first seen by the engineer to where they were at that time was about 900 or 1,000 feet, and from where they could be seen to the place where the child was struck was, say, 1,200 feet. The engineer and conductor and other witnesses, accustomed to handling trains, swore that such a train, moving at the rate of 10 or 12 miles an hour, on such a grade, cannot be stopped in less than 2,000 or 2,500 feet, and that it was not possible to have stopped this train in the distance from where the child was killed to the point where the train passed around the curve where she could be seen by the engineer.

"Witnesses for plaintiff swore that they did not hear the whistle sound at the whistling-post, nor did they hear the bell ring as the locomotive came down the grade. They also swore that the wind was blowing a smart gale up stream, or towards the east; that the train was running at an unusually rapid speed; that it was several minutes ahead of schedule time; that the brakemen were not at their posts; that the engineer did not call for brakes as soon as the children could be seen by him. All these things were contradicted by the witnesses for the respondent, except that the engineer admits that he did not call for brakes at the instant he first saw the children, because he thought them in the act of crossing the track; but testifies that he did call for brakes, reverse the engine, and do all in his power to stop the train as soon as he saw the children were starting upon the trestle."

-- And the following is contained in that of the appellant:

"On the fifth day of June, 1884, said Mary E. Cassida, a child of seven years, with her two sisters of nine and twelve years, respectively, was upon the east end of a bridge or trestle upon defendant's railroad track, running from The Dalles, and other points further up the country, to Portland. Some distance east of where the killing occurred there is a curve in the road, and a high bluff which shuts off the view of the track. On the day of the killing, the freight train which did the injury came around this curve, running west, and in the direction of the children. It seems from the evidence that the children did not see the train when it first came around the curve, but as soon as they did see it they commenced running towards the west end of the bridge, (away from the train,) and had nearly reached the end of the bridge (within nine ties) when the train overtook them. The two older children jumped from or through the bridge, and escaped, but the little one was struck by the cow-catcher, and her head severed from her body. The place where the accident occurred was in the edge of a little village of five or six families, (Upper Cascades,) and about 80 feet east from a public crossing. The point on the curve where the engine first came in sight was 1,120 feet east from where the child was killed, and the engine passed on 600 feet beyond the child before it stopped."

The appellant's counsel offered to prove that persons including children, had been in the habit of traveling up and down and across the railroad track, at the place where the accident occurred, for four years prior to its occurrence. The evidence was objected to by the respondent's counsel, and the court excluded it, to which ruling the appellant's counsel saved an exception. The appellant's counsel also offered to show the following: "That the child, for the death of which...