Haynes v. Oregon-Washington R. & Nav. Co.

• Decision Date: 13 July 1915
• Citation: 77 Or. 236,150 P. 286
• Parties: HAYNES v. OREGON-WASHINGTON R. & NAVIGATION CO. [d]
• Court: Oregon Supreme Court

150 P. 286

77 Or. 236

HAYNES v. OREGON-WASHINGTON R. & NAVIGATION CO. ^[d]

Supreme Court of Oregon

July 13, 1915

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by James O. Haynes, by his guardian, O. S. Haynes, against the Oregon-Washington Railroad & Navigation Company, a corporation. From a judgment for plaintiff, defendant appeals. Reversed and dismissed.

This is an action by James O. Haynes, a minor, by O. S. Haynes, his father and guardian ad litem, against the Oregon-Washington Railroad & Navigation Company, a corporation, to recover damages for a personal injury. The facts are that a part of the defendant's railway, extending northerly about a half mile from St. Johns, Or., is cut through a hill, which inclines westward toward the Willamette river. The top of the east slope of the passage, at the place in question, is about 37 feet above the track. From the surface of the bank at that place, the excavation is made through clay about 8 feet, the remainder of the depth being through sand. Wires strung on wooden posts, set on each slope 25 feet from the middle of the railway track and parallel therewith, form right of way fences. No public highway intersects or approaches the track at the place mentioned. Prior to November 23, 1913, a cave of about a cubic yard had been made in the sand on the east slope, immediately below the line of clay. On that day the plaintiff, then 12 years old, and three other boys, returning across lots from the river, went upon the railway track, and in order to escape a shower, climbed up to and entered the cave. After remaining there a few moments, one of the boys left to attack with clods his companions, who were playing the hole was a gold mine and he a robber, when the bank fell entombing the occupants of the cave and injuring the plaintiff. The complaint charges, in effect, that the defendant was negligent in failing to maintain on its right of way fences to protect children, and recklessly allowed the bank to become and remain unguarded; that in excavating the earth, crevices were made, and the bank of the cut was and for a long time had been dangerous; that the bank was carelessly allowed to be a place attractive to children of tender years who, without warning, resorted to it, of which facts the defendant had knowledge. The answer denies the material averments of the complaint, and for a further defense alleges that, without the defendant's knowledge and in violation of its rules, the plaintiff entered upon the railway track through the right of way fences, which were in good repair, and dug a hole in the bank, thereby removing a part of the support of some earth, causing it to fall upon him; and that whatever injury he sustained resulted from his negligence in that particular. The reply put in issue the allegations of new matter in the answer, and, a trial of the cause having resulted in a judgment for $500 against the defendant, it appeals.

Moore C.J., dissenting, and Harris, J., dissenting in part.

W. A Robbins, of Portland (A. C. Spencer, John P. Hannon, and C E. Cochran, all of Portland, on the brief), for appellant. W. A. Burke and J. C. Simmons, both of Portland, for respondent.

MOORE, C.J. (after stating the facts as above).

It is maintained that an error was committed in refusing to direct a verdict for the defendant, as requested by its counsel, to which action of the court an exception was taken. It is argued that the defendant, a landowner, was not liable to a trespasser for an unintentional injury, or for any failure properly to fence its right of way, or to guard the banks of its cut, which by lapse of time and the effect of the elements had become steep or even precipitous, or in permitting a hole to be made in a bank of earth to which cave children could resort to escape rain, or remain to play. It is not averred in the answer that the fences referred to were put up on the boundaries of the right of way. W. D. Scisinger, a section foreman employed by the defendant, testified that the fences were supposed to mark such boundary. St. Clair Thomas, a civil engineer in defendant's service, as its witness, in answer to the question, "Does that cave come within the right of way?" replied, "No." In referring to the east bank of the cut, and alluding to a cross-section plan which he had prepared, this witness stated upon oath: "Erosion and the elements have caused it to slough off here, to a perpendicular condition, as indicated by this drawing." No deed or other writing was offered in evidence to establish the width of the right of way at the place where the plaintiff was injured, nor was any testimony received tending to show that the cave was made by the defendant, as alleged in the complaint. In the absence of such proof, the sworn declaration of Mr. Thomas must be accepted as true, and the facts established that the cave was not on the defendant's real property, nor made by it.

Frank Haynes, the plaintiff's brother, who was with him when he was hurt, in referring to the fences along the right of way at that time, said they were down. Robert Roskowsky, who assisted in rescuing the plaintiff after the land slide, referring to the fences near the railway track, testified that "the wires were down."

It also appears from the testimony of plaintiff's witnesses that boys, during school vacation and holidays, customarily passed along and played on the railway track at the place where the slide occurred, and that the defendant's employés in charge of this part of its roadbed frequently saw such youths on these premises. This testimony is corroborated by the defendant's servants, who stated upon oath that though boys had been ordered to depart from the track, they refused to comply with the command. The defendant was therefore chargeable with notice of the trespass of the boys upon its railway track, and by the exercise of reasonable diligence, knowledge of the existence of the cave might have been acquired. The cut was made through the hill by the defendant in grading its roadbed. If in performing that work the incline extended beyond the line of the right of way, and there was a failure to give the bank sufficient slope, in consequence of which a slide of earth occurred that might reasonably have been guarded against, liability would attach in favor of passengers and employés, or those persons to whom a duty was owing to protect them from injury. Scott v. Astoria Railroad Company, 43 Or. 26, 72 P. 594, 62 L. R. A. 543, 99 Am. St. Rep. 710.

That the cave was alluring to boys must be conceded by every person whose curiosity has ever been excited by a novelty. It is not strange, then, that the plaintiff and his companions were attracted by the inviting shelter from the rain which the cave afforded, and, having gained the retreat by climbing the bank of the cut, it was not unusual that they should remain in the cave to play after the storm had abated. The writer believes that as the hole in the bank was not made or maintained for use in any manner by the defendant, and as it was obliged to guard the banks of the cut so as to protect its passengers and employés from danger of slides of earth the plaintiff, though a trespasser, having been tacitly invited to the hole by its allurement, was also entitled to recover damages for the injury suffered by reason of the negligence of the defendant in allowing the cave to remain as an attraction to an inquisitive boy. A majority of the court, however, in the case of Riggle v. Lens, 71 Or. 125, 142 P. 346, L. R. A. 1915A, 150, reached a different conclusion, and the rule there recognized is controlling herein. In that case it was held that the owner of a millrace that was not protected by fence or guard was not liable for the death of a child who, trespassing upon premises and playing upon the banks of the artificial water course, fell in and was drowned, though the millrace was occasionally resorted to by children for amusement. The decision rendered in that case is contrary to what is known as "The Turntable Cases." The first of that class in the Supreme Court of the United States is the case of Railroad Company v. Stout, 17 Wall. 657, 21 L.Ed. 745, 661, decided in the year 1873, where it...