Grant Adm'r v. Baker
| Decision Date | 08 June 1885 |
| Citation | 12 Or. 329,7 P. 318 |
| Court | Oregon Supreme Court |
| Parties | GRANT, Adm'r, v. BAKER and others. |
Appeal from Clatsop county.
G.W Yocum and Raleigh Stott, for appellant.
F.R Strong, for respondents.
This appeal is from the circuit court for the county of Clatsop. The appellant commenced an action in that court against the respondent to recover damages for wrongfully causing the death of Peter Grant. The appellant alleged in his complaint, in substance, that he was the administrator of said Peter Grant, and that the respondents were officers of the municipal corporation of the city of Astoria, in said county, constituting the common council of said city; that by the charter of said city it was the duty of the said common council to keep the streets of the said city in good order and repair, and safe for travel; that they willfully neglected their duty, and permitted one of the said streets known as "Squemoque Street," to become so much out of repair that it became unsafe for travel, and that, after being notified of the fact, they refused to repair it; that while said Peter Grant was lawfully traveling said street on the twenty-seventh day of November, 1881, and wholly unaware of the danger, he was accidentally, and without fault on his part, precipitated over the edge of the road-way, and thereby killed, which accident the appellant alleged was in consequence of the respondents' said neglect. The respondents filed an answer to the said complaint, in which they denied all the allegations thereof; and thereafter, at the January term, 1884, of said court, the issues so formed came on for trial before the said court, and a jury duly impaneled.
The appellant upon the trial gave evidence tending to prove the facts alleged in his complaint. It appears from the bill of exceptions that said Peter Grant was last seen alive on the evening previous to the said twenty-seventh day of November, 1881; that on the morning of that day he was found dead, lying in the mud and water in front of said street, opposite to where a railing had been off for some time. It also appears that said deceased had his lodgings at a house on said street, and that when last seen, upon the evening previous to his death, he was at the Occident Hotel, in Astoria; that between 10 and 11 o'clock at night he left there with the evident intention of going to his lodgings; that his route would naturally be along said street, which was considerably incumbered with lumber at the time. The evidence offered was doubtless sufficient to authorize the inference that the deceased, while going to his lodgings on said occasion, and along said street, fell from the same to the place where he was found dead, in consequence of its being so filled up with timber and lumber, and the rail being off the side, placed there as a protection to persons passing along the same. The street appears to have been upon piles across some tide-land, and several feet above the surface.
The appellant having rested his case, the respondents moved the court for a nonsuit, upon the grounds (1) that the evidence was insufficient to entitle the appellant to a recovery; (2) that the appellant had failed to show that the deceased was without fault at the time of the accident; that the appellant was required to show that deceased was, at the time of his death, free from contributory negligence, before a recovery could be had. The circuit court granted the motion, and the appellant was nonsuited, and judgment entered against him for costs, from which judgment this appeal is taken.
The first ground of the motion for the nonsuit was wholly untenable. The question whether the evidence was sufficient to entitle the appellant to a recovery was for the jury, and not the court. To authorize the court to nonsuit a plaintiff the latter must fail to prove a cause sufficient to be submitted to the jury. It must be such a case that, if the jury were to find a verdict for the plaintiff, the court could be required to set it aside for want of evidence to support it. Civil Code, §§ 243, 244. It would have to be a case where there was a total failure of proof of some material allegation of the complaint, which appears, from the bill of exceptions, not to have been the fact in this case. I do not suppose the nonsuit was granted upon that ground. It was not so claimed on the argument, and, I think, the counsel on both sides concede that it was upon the second ground of the motion that it was allowed, and that the circuit judge, in allowing it, followed what he supposed to have been held in Walsh v. Oregon Ry. & Nav. Co. 10 Or. 250. The impression seems to have prevailed, to some extent, at least, that this court there held that a plaintiff would not be entitled to recover in an action for negligence without showing affirmatively that the injury was not the result of his own negligence; that he would have to first establish that there was no contributory negligence upon his part. I do not think that is the law, nor...
To continue reading
Request your trial
-
Howell v. Boyle
...in Conroy, as examples of cases in which the burden is placed on the plaintiff to prove an absence of negligence). In Grant v. Baker, 12 Or. 329, 7 P. 318 (1885), this court changed course. In that case, the plaintiff initiated an action for the wrongful death of an individual, who was kill......
-
Klutschkowski v. Peacehealth
...353 Or. at 382–85, 298 P.3d 1. The doctrine was not treated as a defense in this state until the mid–1880s. See Grant v. Baker, 12 Or. 329, 332–33, 7 P. 318 (1885) (first decision to treat contributory negligence as an affirmative defense). It would seem to follow that the remedy clause aff......
-
Lamm v. Silver Falls Timber Co.
... ... of Workmen's Compensation Acts is to grant compensation ... to an injured workman on account of his status. He is an ... integral ... plaintiff." See, also, Grant v. Baker, 12 Or ... 329, 7 P. 318, 320, where it was held that, in order to take ... a case ... ...
-
Burnett v. Atchison, T. & S. F. R. Co.
...L. Ed. 262; Atch., T. & S. F. R. Co. v. Aderhold, 58 Kan. 293, 49 Pac. 83; Norton v. N. C. R., 122 N. C. 910, 29 S. E. 886; Grant v. Becker, 12 Or. 329, 7 Pac. 318; Hanlon v. Mo. P. Ry., 104 Mo. 381, 16 S. W. 233; Seska v. C., M. & St. P. R. R. Co., 77 Iowa, 137, 41 N. W. 596; 8 Ency. of Ev......