Harvey v. Deep River Logging Co.

• Decision Date: 11 June 1907
• Citation: 49 Or. 583,90 P. 501
• Parties: HARVEY v. DEEP RIVER LOGGING CO.
• Court: Oregon Supreme Court

90 P. 501

49 Or. 583

HARVEY v. DEEP RIVER LOGGING CO.

Supreme Court of Oregon

June 11, 1907

Appeal from Circuit Court, Multnomah County; A.L. Frazer, Judge.

Action by James F. Harvey against the Deep River Logging Company. Judgment for plaintiff. Defendant appeals. Affirmed.

E.E Coovert, for appellant.

Dan J Malarkey, for respondent.

BEAN C.J.

This is a personal injury case. The defendant is a corporation engaged in the logging business in the state of Washington and, as a part of its appliances, owns and operates a logging steam railroad from a landing on Deep River to its logging camp, a distance of about four miles. The equipment of the road consists of three engines and the necessary logging trucks. A logging truck is a platform about six by ten feet in size, supported by four wheels, upon which one end of a log rests while being hauled; the other end resting upon a similar truck. The defendant has no passenger coaches or cars, and is not engaged in the carrying of passengers; but it was a custom to send an engine and one or more of its logging trucks to the landing three or four times a week for freight and supplies, and any person desiring to ride was permitted by the employé in charge of the train to get in the engine cab or on the car, and be carried from point to point without the payment of fare. The evidence tended to show that this practice prevailed generally from the time the road was completed until the injury to the plaintiff, a period of three or four years.

On September 1, 1904, the manager of the company sent a train consisting of an engine and one flat car, or truck, in charge of an engineer, to the landing to get his wife and children and some freight belonging to the company. When within 200 or 300 yards of the landing, the train passed the plaintiff, who is an itinerant vender of goods, and three or four other persons who were waiting to go out to the camp, and the plaintiff inquired of the engineer if the train would stop at that point on its return. The engineer, in reply, told him it would not, and if he wanted to go to the camp he must get on the car there, and stopped the train for that purpose. The plaintiff and the other persons thereupon boarded the flat car, and the train proceeded to the landing, where some freight was put on the car, and the superintendent's wife and children and another lady got in the cab of the engine to ride to the camp. The train then started back, stopping about 500 yards from the landing to take aboard some section hands and their car, and while passing around a sharp curve in the road it suddenly came into collision with another train loaded with logs, which had been carelessly and negligently permitted to leave the camp. The plaintiff was thrown from the car and seriously injured, and brings this action to recover damages therefor. In his complaint he alleges that for some time prior to the injury defendant customarily and habitually carried passengers and persons on its trains, and that on September 1, 1904, he desired to go and be carried from the river terminus of the defendant's railroad to its logging camp, and for that purpose got aboard and took passage on one of its trains in good faith, by the invitation and permission of defendant's agents and employés, and was by such persons accepted and received as a passenger on such train. The answer, after denying the allegations of the complaint, sets up affirmatively that plaintiff furtively and negligently got on board one of defendant's logging trucks, and was riding thereon at the time of the injury, without permission or consent of the defendant. After plaintiff rested his case, the defendant moved for a nonsuit, which being overruled, it gave evidence in support of its defense, and the jury rendered a verdict in favor of the plaintiff. From the judgment rendered therein, the defendant appeals, alleging as the only error the overruling of its motion for a nonsuit.

The position of the defendant is that plaintiff was not a passenger at the time of his injury, but at most was a mere licensee, to which it owed no duty, except not to willfully or wantonly injure him. It is clear that plaintiff was not entitled by law to be...