Dubiver v. City & Suburban Ry. Co.

• Decision Date: 11 January 1904
• Citation: 44 Or. 227,74 P. 915
• Parties: DUBIVER v. CITY & SUBURBAN RY. CO.
• Court: Oregon Supreme Court

74 P. 915

44 Or. 227

DUBIVER v. CITY & SUBURBAN RY. CO.

Supreme Court of Oregon

January 11, 1904

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Action by David Dubiver, as guardian ad litem of William Dubiver against the City & Suburban Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The defendant operates an electric street railway, with double tracks, upon First street, in the city of Portland. David Dubiver, the father and guardian ad litem of William Dubiver a minor, was on November 21, 1902, occupying a store on the southeast corner of First and Jefferson streets, and William was engaged in delivering goods for him about the city with a light, one-horse, goose-neck express wagon, and had been so employed for more than a year. At the date indicated, about 5:30 o'clock in the evening, William drove south on Second street to Jefferson; thence east upon the latter, near the center thereof, to First street, continuing across the first and second tracks of the defendant's railway until the hind wheels of his wagon reached the east rail of the second or east track, when it was struck by a moving car of the defendant company going north, and William was thrown from the seat of the wagon, which he was then occupying, and injured; and this action was instituted to recover damages arising on account of such injuries. William was at the time 15 years of age. Referring to the bill of exceptions plaintiff's testimony tended to show that, when William arrived at the west crossing on First street, he stopped his horse, and looked both ways for any approaching car, and seeing none, drove forward in a slow walk toward the east; that when the wagon had passed over both tracks, except the hind wheels, which had just reached the east rail of the east track, the defendant's car running north at a high rate of speed came in contact with it, and, further, that William took the care and precaution ordinarily used in driving a wagon across the track of an electric railway, and exercised all the usual and ordinary diligence required to cross such a track in safety; that the motorman had no headlight on his car, although it was dusk, and that he failed to ring any gong or to give other warning, or to slow up his car, as it approached the crossing. The defendant's evidence tended to show that, as the car came down First street, it was moving at a high rate of speed; that the motorman in charge saw the express wagon as it was about to cross the tracks at Jefferson street, but at such a distance away that, at the rate it was moving, it would have ample time to clear the tracks before the car reached that street, but at once put the car under control; that after the horse and all the wagon had crossed the tracks, except the hind wheels, which were just at the east rail of the eastern track, and when far enough in front of the car for the wheels to have passed over, and entirely out of reach thereof, the driver suddenly stopped and turned the horse to the right, and that before the car could possibly be checked it came in contact with the wheels of the wagon so situated, and pushed them off the track; and that at the time of the collision the driver had turned the horse and fore wheels of the wagon to the south, so that they stood parallel with the track. It does not appear that the motorman took note of the driver of the wagon prior to the accident--whether he appeared to be a man grown or a youth--and the record is silent upon the subject from his standpoint. The plaintiff having recovered judgment, the defendant appeals.

Rufus Mallory, for appellant.

Alex. Bernstein, for respondent.

WOLVERTON J. (after stating the facts).

The trial court, after instructing the jury as to the law relative to contributory negligence, proceeded to say: "But in the case of children the court cannot say this as a matter of law. In such cases it is more or less a mixed question of law and fact"--and further instructed as follows: "The evidence shows that plaintiff's minor was at the time a minor somewhere about 15 years of age. This fact, however, does not excuse him from the obligation to exercise care according to his knowledge and capacity to understand danger, as boys of that age ordinarily are, and to use ordinary care to avoid it; and, if you find from the evidence in this case that plaintiff's minor had sufficient capacity to understand the danger of crossing a railroad track in such a situation, it was his duty to use ordinary care in crossing the track, so as to avoid getting in the way of moving cars; and if he failed to use such care, and because of such failure was injured, he was guilty of contributory negligence, and cannot recover in this action. A child would not be expected to use the same degree of care and prudence that a person of older years and larger discretion would use; but you are to take into consideration the age of the plaintiff's minor, and his character, and all the circumstances and facts--all the evidence throwing light upon the manner in which any injury may have occurred--and then determine whether he used the care which an ordinarily prudent boy of his age, under those circumstances, should have used. If he did use such care, he was not guilty of contributory negligence. If he failed to use such care, then he was guilty of contributory negligence, and the plaintiff cannot recover."

To these instructions, exceptions were taken and reserved, and the sole assignment of error contained in the record is relative thereto. Counsel for appellant insist that the instructions are erroneous (1) because the defendant had no knowledge or notice that the person in charge of the horse and wagon was a minor; that the occupation in which he was engaged was one for an adult, and not for an infant, and the defendant's liability could not in any way be made to depend upon the driver's capacity from considerations of his age; and (2) because the undisputed evidence conclusively shows that the person injured, although a minor, thoroughly understood the situation, the condition of the business in which he was engaged, the risks and hazards attending it, and especially of crossing the tracks of a street railway upon which were cars propelled by electricity, and therefore assumed all the hazards of the position, from which it follows that his infancy was wholly immaterial, and unavailable to limit his liability, or to enlarge that of the defendant.

The first reason advanced as a basis of counsel's position is manifestly without relevancy, under the conditions in which the case comes here. All the instructions pertaining to the negligence of the defendant are admittedly unexceptionable, and no objections were made or exceptions saved thereto in any form, so that the case had passed from the point where plaintiff had the laboring oar. The instructions complained of relate solely to the defense of contributory negligence--a matter devolving upon the defendant to establish--which is entirely distinct, and altogether another phase of the trial procedure. The plaintiff's case had become a closed book, the record unexceptionable. Not so upon the other hand. The defendant was not satisfied with the manner in which its separate and special defense was submitted to the jury; hence its exceptions, and these exceptions raise the sole and only question with which we can deal. In other words, the record shows that plaintiff's case was properly submitted, while the manner in which the defendant's case was submitted is alone questioned, so that the first reason advanced as a basis of counsel's position is without potency now.

The second reason is forceful and cogent, and the problem presented is not a little difficult of solution. The doctrine of the assumption of risks and hazards incident to the occupation in which a person has engaged does not apply otherwise than as between master and servant, but no such relation existed between the defendant and the plaintiff's minor herein. Counsel urge, however, that as the plaintiff's minor presented the same proofs of the exercise of care in crossing defendant's tracks as if he had been of full age, and took the same precautions that an adult would have done, using ordinary care and prudence (that is, by looking both ways as he approached the defendant's tracks, to ascertain if any cars were in sight, and then proceeding across them), and that, as he understood and appreciated the situation and the business in which he was engaged, and all the risks and hazards pertaining to it, and especially of crossing the tracks of a street railway, therefore the same rule would apply to him as to an adult, and the fact of his infancy was wholly immaterial, and could be of no avail to limit his responsibility. This, it seems to us, does not include the whole case. The very point of dispute centers about the boy driving off the tracks after he had entered upon them. His testimony tended to show that h...