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

• Decision Date: 28 July 1914
• Citation: 143 P. 623,71 Or. 576
• Parties: DOYLE v. PORTLAND RY., LIGHT & POWER CO.
• Court: Oregon Supreme Court

143 P. 623

71 Or. 576

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

Supreme Court of Oregon

July 28, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; T. J. Cleeton, Judge.

Action by William C. Doyle against the Portland Railway, Light &amp Power Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

This is an action to recover damages for personal injuries. A verdict and a judgment were rendered for the defendant. The plaintiff appeals. The facts are sufficiently stated in the opinion.

I. N Smith, of Portland (Shirley D. Parker and Littlefield & Smith, all of Portland, on the brief), for appellant. R. A. Leiter, of Portland (Griffith, Leiter &amp Allen, of Portland, on the brief), for respondent.

RAMSEY J.

This is an action to recover damages for personal injuries, based on alleged negligence of the defendants. The action was dismissed as to the Oregon Water Power & Railway Company, and it proceeded against the Portland Railway, Light & Power Company. The trial resulted in a judgment against the plaintiff. The latter appeals, and the last-named company is the respondent.

The complaint, an answer, and a reply were filed. The errors assigned relate to the instructions given by the court and to those refused; but we will consider only certain of the charges that were given and excepted to.

At the time of the accident complained of, and for several years prior thereto, the defendant, the Portland Railway, Light &amp Power Company, was engaged in running and conducting an electric railroad for carrying persons and freight, and the mail as a common carrier, from the city of Portland to Estacada, Or. The complaint alleges, inter alia, the following:

"As part and parcel of the system of electric railroads and railways so owned and operated by defendant, the defendant operated a railroad between Portland, Or., and Estacada, as above stated, and along the right of way thereof was a high and dangerous trestle, approximately 40 feet in height and about 80 yards long, extending over and across Johnson creek, between Berkley and Ardenwald stations, and that said railroad was so constructed that it constituted and was the sole and only means and method of transportation and of crossing over the said creek, and that in the vicinity of said trestle there is a populous settlement, and that the people residing in the vicinity thereof from the date of the construction of said trestle, thence hitherto, have used said trestle as a footpath or passageway or crossing over and across said creek, and have used the same frequently at various hours of each and every day, and the said trestle constituted and was a pathway or passageway ordinarily and customarily used by the public without objection on the part of the said defendants, and of such customary and public use the said defendants and each of them well knew prior to the happening of the injuries to the plaintiff."

The complaint then describes the general character of the approaches to the trestle, and alleges knowledge of the defendant of the use by the people, and proceeds:

"On January 29, A. D. 1913, at about the hour of 6 o'clock p. m., this plaintiff, together with his wife, was lawfully traveling upon said trestle and using the same as a footpath for lawful purposes, and for crossing the said creek, and was proceeding with due care and caution to cross said trestle, and had traveled approximately three-quarters of the distance across said trestle, going in an easterly direction, whereupon one of the trains so operated by the defendants as a part and parcel of their system of electric railway lines approached said trestle at a high and a dangerous and excessive rate of speed, and at a rate greater than that usually attained by the trains of the said defendants in approaching and crossing said trestle, and at a rate of approximately 40 miles an hour. That the name of the conductor in charge of said train is not known to plaintiff. The number of said train is not known to plaintiff. After said train had entered or passed the cuts in its approach to the said trestle, the operatives thereof had a clear and unobstructed view and vision of this plaintiff and his said wife, and realized the danger in which plaintiff and his wife were and the dangers to which they

were exposed, and thereafter and after said operatives so in charge of such train had realized the danger to which plaintiff was exposed the said operatives had full time and opportunity to have stopped the said train and have saved this plaintiff from the injuries hereafter described, but that said operatives carelessly, recklessly, and negligently failed to control the said train, but, on the contrary, ran the same at a high and a dangerous rate of speed and collided with this plaintiff, causing plaintiff the injuries hereafter stated. Plaintiff realized a train was approaching while he and his wife were on the trestle, and placed his wife in a place of safety, and could not himself get to a place of safety before being struck by the train. At said time and place, and after said operatives had time and opportunity to have stopped said train and prevented the injuries to plaintiff, as above alleged, the said train collided with this plaintiff with great force and violence," etc.

The evidence shows that the plaintiff and his wife had been working in a mill a short distance west of the trestle across Johnson creek, referred to in the complaint, and that they lived a short distance east of said trestle. They quit work a short time before 6 o'clock p. m., but were too late to take a car going east, and hence decided to walk home. The only convenient way across Johnson creek was the defendant's bridge and trestle, crossing said creek. They had used this bridge as a passageway frequently prior to that time. They decided to walk over it. It was about 6 o'clock p. m., when they reached the bridge. They had gone about three-fourths of the distance across it, when they discovered the defendant's car, only a short distance away, running at a high rate of speed. The plaintiff assisted his wife to get out of the way of the car, but did not have time to get off the bridge himself, and he was struck by the car and knocked off the bridge, and fell to the ground, a distance of about 30 feet. He was seriously injured, and rendered unconscious for several days. The car did not stop until it had passed over the bridge and beyond the point where it struck the plaintiff. This bridge is 176 feet long. The motorman says that he saw the plaintiff and his wife when the car was 20 or 30 feet from the end of the bridge, and he claims that he did all that he could to stop the car and prevent the accident. Witnesses for the defendant testified that the car could be stopped while going a distance of 90 feet after the brakes were applied.

There was evidence tending to prove that, with the aid of the headlight, the motorman could see a person in front of the car when 200 or 300 feet distant from him. The evidence shows that a considerable number of people reside in the vicinity of said bridge, and that said bridge had been constantly used for several years prior to the date of the accident, by numerous persons, as a passageway over Johnson creek for pedestrians, and that school children and others had so used it. The evidence tends strongly to prove that the defendant and its servants knew of this use and acquiesced therein. The defendant had placed at each end of said bridge, the following notice: "No Thoroughfare. This is Private Property. Trespassing Hereon Forbidden." There was sufficient evidence, tending to show that said bridge had been and was used by the public as a passageway for pedestrians, to make it necessary for the trial court to instruct the jury as to the degree of care that the defendant should have used in approaching and passing over said bridge with its cars.

The plaintiff contends that the injury to him was caused by the negligence of the defendant and its employés in running its car when approaching said bridge, and in not stopping it before the car reached him, etc. He claims, also, that if the defendant's employés had used proper care, and had kept a proper lookout, they could and would have seen him when at a considerable distance before reaching said bridge, and in ample time to have stopped said car before reaching him, etc. The defendant, on the other hand, contends that the injury to the plaintiff was the result of an unavoidable accident or of the negligence of the plaintiff. These were questions to be determined by the jury, from the evidence, under proper instructions from the trial court.

1. The plaintiff contends that the instructions were too long and that they were given in such a manner that they tended to confuse the jury. The instructions given comprised 23 typewritten pages. We think that the criticism of the plaintiff is not wholly without foundation. The court gave the jury lengthy instructions, and then gave numerous charges that were requested by the parties. In some instances, the court read charges to the jury, telling them which party had requested them, and then informed the jury that it had modified said charges, and then read the modified charges to the jury. Under such conditions, it is hardly probable that the jury could remember the differences between the charges as they were first read, and as they were in their modified forms. Such practice tends to confuse the jury, as they are not likely to be able to separate the chaff from the wheat.

The writer of this opinion believes that it is the better practice for the trial court to examine the charges requested, and to make such changes therein as are deemed necessary, and then to give all the...