Cederson v. Oregon R. & Nav. Co.

• Decision Date: 04 February 1901
• Citation: 38 Or. 343,63 P. 763
• Parties: CEDERSON v. OREGON R. & NAV. CO.
• Court: Oregon Supreme Court

63 P. 763

38 Or. 343

CEDERSON v. OREGON R. & NAV. CO.

Supreme Court of Oregon

February 4, 1901

On rehearing. Petition overruled.

For former opinion, see 62 P. 637.

WOLVERTON, J.

Counsel for appellant have presented a very able and exhaustive petition for a rehearing of this cause, but devoted largely to a reargument of matters heretofore fully considered. Their chief reliance, however, is based upon questions which they insist the court overlooked in disposing of the case.

Referring to the question of departure in the pleadings, it is asserted with emphasis that the complaint was intended to, and does state the ownership of the locus in quo to be in Seufert Bros. Company. But, let it be admitted that it does; it is difficult to see how this could help the defendant, because at most, the reply contains nothing more than a new assignment,--simply a restatement of matters going to make up plaintiff's cause of action, describing more particularly what had been before described too generally,--and a departure cannot be predicated thereon. Phil.Code Pl. § 273; Bank v. Richards, 6 Mo.App. 454, affirmed in 74 Mo 77. The testimony touching the ownership of the locus in quo would be equally admissible under this view as under the one adopted in the opinion. The conveyances, the admission of which is complained of, if they serve no other purpose operate as color of title, and were therefore proper to go to the jury. And it cannot be doubted that there is ample evidence in the record upon which to put the case to the jury upon the question of adverse possession.

The defendant tried the cause in the court below upon the theory that the decedent was a trespasser, or at most was upon the defendant's right of way with its mere tacit assent, and hence that defendant owed him no duty of active vigilance to avoid hurting him, or, to state it in another form, that it owed him no duty except that it should not wantonly and willfully injure him. On the other hand, the plaintiff urged the theory that the decedent was something more than a trespasser or mere licensee; that he was at the place where he was killed by the encouragement and invitation of the defendant's officers and employés. At the trial here great emphasis was laid upon this especial issue, which received the greater attention because it presented the most important as well as the most vital question in the case. The instructions fairly presented the issue to the jury, and while they may not be entirely unexceptionable, they are intelligible, and were undoubtedly understood by that body. The only doubt we entertained touching them was whether the court, in view of the attending circumstances and conditions had sufficiently described or defined what would be reasonable care on the part of the defendant in the management and operation of its trains, having in mind the different phases of the proposition respecting the decedent's right to be at the place where he lost his life. But no instructions were suggested that were more explicit upon the subject. The jury could not have mistaken the real issue, so we concluded there was no error, and are of the same opinion now. It would have been a work of...