Cooper v. North Coast Power Co.
| Decision Date | 16 March 1926 |
| Citation | 117 Or. 652,244 P. 665 |
| Parties | COOPER v. NORTH COAST POWER CO. ET AL. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Columbia County; J. A. Eakin, Judge.
Action by Sadie Cooper against the North Coast Power Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.
See also, 244 P. 671.
This is an appeal from a judgment in favor of plaintiff for the recovery of damages in the sum of $4,000, on account of the death on May 24, 1922, of Walter Cooper, her only son, a boy of 12 years, by coming in contact with uninsulated electric wires belonging to the defendant North Coast Power Company, a corporation.
The defendant corporation owns and operates an electric power line between the towns of Goble and Rainier, Columbia county Or., and, in such operation, its codefendant, George Ringle as its lawful representative, at all times herein mentioned had sole charge and control of the construction and maintenance of the line, and of the manufacture transmission, and distribution of electricity thereby. On May 24, 1922, the date of the accident above referred to, the defendant corporation was engaged in the manufacture and transmission, by means of its power line, of electricity of a high and dangerous voltage.
Plaintiff avers that, at the time of the construction of the power line of the corporation, there was standing on land known as the "Newsome tract," which tract was frequented by the public, a large yew tree with broad, outspreading branches; that, in the erection of the power line, the defendants carelessly constructed the line in such manner that three of its electric wires passed on a direct line with the tree and over the roof of an abandoned shack that had been constructed underneath its branches; and that, in order to give clearance to the wires, the defendant company topped the above-mentioned tree immediately under the electric wires, leaving a stump 2 feet and 8 inches in diameter at the top, 16 feet and 4 inches high, and with large spreading branches reaching out from the body of the tree as low as 6 feet from the ground. She avers what she claims was the duty of the defendants in reference to the construction and maintenance of their lines, and their negligence in the performance thereof; that the power lines, tree, and shack were attractive to children, "and was a veritable death trap and of grave danger to the members of the public generally"; that on May 24, 1922, Walter Cooper, in company with about 25 other boys and girls of similar age, pupils of the Rainier public school, together with their teacher and a patron of the school, went upon the "Newsome tract," as the public and residents of Rainier were accustomed to do, for the purpose of picnicking and spending the day in childish sport and games; "that, immediately upon entering said grounds, the deceased, Walter Cooper, together with a number of other boys of like age, attracted by said yew tree and its unusual appearance, position, accessibility, and ease of being climbed, entered the branches thereof and climbed to the top; that the electric wires aforementioned were not easily discernible, and that the deceased * * * was ignorant of the presence of said wires, and * * * was ignorant of the character and danger of electric currents and electric wires and did not know nor appreciate the presence nor danger of said electric wires and the electric current being transmitted thereby."
The plaintiff alleges that, upon gaining the top of the stump of the yew tree, the lad came in contact with the defendant company's electric wires, and, as a result, was instantly killed. She avers that her husband, the father of Walter Cooper, is dead; that the boy would have labored and earned until he attained his majority; and that she would have been entitled to receive such earnings.
The defendant corporation, answering, admits the ownership and construction of the power line, its location across the "Newsome tract" and over the abandoned shack and yew tree stump; and for a further and separate defense it avers that Walter Cooper, in company with other boys and girls, went upon the Newsome tract of land without any right or authority and without the knowledge or consent of the defendant, or of Mary Newsome, the owner of the tract of land; that Walter Cooper and other young people, in company with him, were warned and instructed not to go near the electric wires of the defendant or to come in contact therewith, for the reason that such wires carried a dangerous voltage of electricity; that the lines were constructed and maintained carefully; and that the boy's death was caused solely through his own negligence "in going upon said premises and right of way of the defendant, and in disregarding the warning not to touch and come in contract with, or get near the wires of the defendant, and in climbing up the yew tree and touching or coming in contact with one of the defendant's wires." George Ringle filed a similar answer.
At the conclusion of the plaintiff's evidence, the defendants requested the court peremptorily to instruct the jury to return a verdict in their favor upon the ground that negligence on the part of the defendant was not shown, and that the evidence showed that the deceased was guilty of contributory negligence. The motion was denied. Both parties rested. On appeal the defendants assign a number of errors, but rely chiefly upon the alleged insufficiency of the evidence to support the plaintiff's cause.
H. B. Beckett, of Portland (Wilbur, Beckett & Howell and E. K. Oppenheimer, all of Portland, on the brief), for appellant North Coast Power Co.
F. D. Metzger, of Tacoma, Wash. (Hayden, Langhorne & Metzger, of Tacoma, Wash., on the brief), for appellant Ringle.
Glen R. Metsker, of St. Helens, for respondent.
BROWN, J. (after stating the facts as above).
The motion filed by defendants challenges the sufficiency of plaintiff's evidence to take the question of their alleged neglect to the jury. They further assert, in effect, that the evidence adduced by plaintiff establishes the negligence of the deceased boy in contributing to the injury sustained by him. Before a recovery can be had, the plaintiff, by some competent evidence, must prove the material averments of her complaint. When the plaintiff has met that requirement, notwithstanding any view we may entertain regarding the probative weight of the testimony, we are required to heed this imperative direction of our fundamental law:
"In actions at law, * * * the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict." Section 3c, art. 7, Oregon Constitution.
With all due deference to the constitutional command, the motion presents a difficult question for determination. The direction of a verdict, or the granting of a motion for nonsuit, takes the place of a demurrer to the evidence under the ancient common-law rules. Herrick v. Barzee, 190 P. 141, 96 Or. 357, and local citations; 2 Thompson on Trials (2d Ed.) § 1524; 6 Am. & Eng. Pleading & Practice, 692. In the disposition of this question, we must adhere to the rule that the court does not weigh the evidence nor determine the credibility of the witnesses. For the purpose of the motion, the witnesses are entirely credible and speak nothing but the truth. Furthermore, in considering this motion, every reasonable intendment and every fair and legitimate inference which can arise from the testimony of record must be made in favor of the plaintiff. Farrin v. State Industrial Accident Commission, 205 P. 984, 104 Or. 452, and local citations.
At the time of his death Walter Cooper was of the age of 12 years and 20 days. He was a well developed boy, in good health, and of average intelligence. He weighed 96 pounds, and his height was 4 feet 11 inches. On May 24, 1922, the day of the accident, the boy, in company with his teacher and certain other pupils of the Rainier public school, gathered for picnic purposes on the tract known as the "Newsome tract," a body of 5 or 6 acres of brush and timber lands situate within the corporate limits of the town of Rainier and between the Columbia River Highway and the Spokane, Portland & Seattle Railroad, about 1 1/2 acres of which were cleared. The tract had been partially inclosed by a fence in former times, but the fence had fallen into disrepair. On one side the land had been inclosed by a brush fence only. In the clearing near one edge that bordered upon the highway stood a lone yew tree, which, before being topped by the defendants, had attained the height of 50 feet and bore many widespreading branches. After the tree had been cut down to a stump 16 feet and 4 inches in height, there still remained many widespreading branches, and, being especially limbed for climbing, this stump was very attractive to children. In the vicinity of the tree was a brook where flowed an exceptionally good quality of drinking water. Near the tree, and partially covered by some of its branches, was a small uninhabited shack with a leanto.
By reason of the attraction afforded by the shade and water, and the beauty of the surroundings, the grounds were used by the public for camping and picnics. It is shown by the testimony that, from time to time, many persons gathered there. At the time the boy was injured, the place had been supplied with a "camp stove, table, and benches." Elizabeth Hinebaugh, the teacher, testified that the "Newsome tract" was "a very pretty place, near the town, * * * close enough to the school so the teachers could get back for the afternoon session."
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