Jackson v. Sumpter Valley Ry. Co.

• Decision Date: 07 January 1908
• Citation: 93 P. 356,50 Or. 455
• Parties: JACKSON v. SUMPTER VALLEY RY. CO. [*]
• Court: Oregon Supreme Court

93 P. 356

50 Or. 455

JACKSON v. SUMPTER VALLEY RY. CO. ^[*]

Supreme Court of Oregon

January 7, 1908

Appeal from Circuit Court, Baker County; William Smith, Judge.

Action by S.H. Jackson against the Sumpter Valley Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff sues on two causes of action to recover in damages the value of some of his milch cows, which were killed and injured by defendant's moving railroad cars and engine on its track near the town of Sumpter, in Baker county. A nonsuit was granted as to the first cause of action, which is not to be considered here. For the second cause of action it is averred that a number of plaintiff's cows, on August 6, 1906 went upon defendant's unfenced track, and four of them were killed and two were injured by one of defendant's moving trains and engine drawing the same. The answer denies generally the averments of the complaint, excepting defendant's incorporation and ownership and operation of the railroad leading from Baker city to Sumpter on which the cows were killed. As an affirmative defense, it is alleged in substance, that on August 6, 1906, certain cows of plaintiff being then and there under the immediate care custody, direction, and control of plaintiff and his servant one Robert Allen, were by them carelessly and negligently, and without right or authority, wrongfully herded and pastured upon and along defendant's right of way and railroad track, within its switching and station yards, inside the corporate limits of the city of Sumpter, and that plaintiff and his servant, Robert Allen, well knowing that defendant's trains were regularly passing over said tracks and right of way, and well knowing said stock was within defendant's switching yards, and that said right of way and said switching yards were dangerous and unsafe places for said stock to be, and that they had no right to have said stock in said places, carelessly and negligently permitted said stock to remain upon and along said track and right of way, and that thereby said stock sustained the injuries alleged, if at all, and that whatever damage plaintiff may have suffered from said injuries was due solely to his own said negligence and carelessness in driving and herding his said stock upon and along defendant's track and right of way, as aforesaid, and not to any fault or negligence of this defendant. By the reply, plaintiff denied generally all the averments of the answer, excepting that "certain cows of the plaintiff, being then and there under the immediate care, custody, and control of plaintiff." After the issues were thus joined a trial was had before a jury, and at the conclusion of plaintiff's testimony defendant moved a nonsuit, on the ground that the evidence shows plaintiff to have been guilty of contributory negligence sufficient to bar his right to recover. This being overruled, defendant offered his testimony, and the cause was submitted to the jury, which returned a verdict in favor of plaintiff in the sum of $330, upon which judgment was entered, from which defendant appeals.

V.W. Tomlinson, for appellant.

C.H. McCulloch, for respondent.

SLATER C. (after stating the facts as above).

The first and principal error relied upon to reverse the judgment is the denial by the court of defendant's motion for a nonsuit to the second cause of action. In this state contributory negligence is a matter of defense, and the burden of establishing it is on the defendant. Johnston v. O.S.L. Ry. Co., 23 Or. 94, 31 P. 283; Grant v. Baker, 12 Or. 329, 7 P. 318. But, if plaintiff's declaration or evidence establishes his own contributory negligence, it bars his recovery, no matter where the burden rests. 7 Am. & Eng.Ency. (2d Ed.) 454; Tucker v. Northern Terminal Co., 41 Or. 82, 68 P. 426; Scott v. Oregon Ry. & N. Co., 14 Or. 211, 13 P. 98.

To support its contention counsel for defendant urges with much earnestness that the pleadings on the part of plaintiff admit that the cattle went upon the track while under the immediate care, custody, and control of plaintiff. This arises, it is argued, from the form of the denial used in the reply. What the pleader intended to admit by excluding the quoted words from the effect of his denial is doubtful. Defendant's counsel arrive at their conclusion by a strict construction of the language quoted, and contend that such should be the rule. But, if their assumption as to the rule of construction and their interpretation of the implied admission be correct, the result would have entitled defendant to a judgment on the pleadings, which they should have asked before going to trial, and not wait to raise the question on motion for nonsuit. The province of a motion for a nonsuit is in the nature of a demurrer to the evidence ( Brown v. Oregon Lumber Co., 24 Or. 315, 33 P. 557), and it is an unusual method of taking advantage of a defect in the pleadings, and the appellant rather than respondent should be held to strict rules. "It has been held," says Mr. Justice Thayer, in Specht v. Allen, 12 Or. 117-122, 6 P. 494, 495, "that when a pleading did not contain a cause of action or defense as the case might be, and the objection to it was made for the first time at the trial by opposing the introduction of evidence to support it, the party would be deemed to have waived any objection to its sufficiency. I am of the opinion that the party in such case should be compelled to resort to a motion for judgment, notwithstanding the verdict, in case one were to be rendered against him, as the party interposing the pleading ought, when it had not been demurred to, to be entitled to the presumptions a verdict in his favor would afford. That appears to me to be the course the Code intends should be pursued. But, on the other hand, where a party has no sufficient pleading to stand upon, and judgment has gone against him, he is not in a favorable condition to ask for its reversal, particularly where a verdict would not have cured the defect. An appellate court in such a case would, I think, consistently determine that the error had not injured him." So, then, in this instance the reply should be construed as if the question arose upon a motion by defendant for a judgment, notwithstanding the verdict, that is, liberally, so that, if possible, the verdict may be sustained. Under these limitations, we are constrained to hold that the language used in the reply was intended to mean no more than that certain cows of the plaintiff were at the time of the accident under the care, custody, and control of plaintiff, not that they were under his care, custody, or control at the time they went upon the track and right of way of the defendant. When so construed and applied to the testimony hereinafter considered, plaintiff has relieved himself from any necessary inference of negligence on his part. But defendant is in no better condition, even if the language of the reply be construed strictly. A party who relies upon a technical defect is subjected to observance of technical rules. Hermann v. Hutcheson, 33 Or. 239, 53 P. 489; Small v. Lutz, 34 Or. 131, 55 P. 529, 58 P. 79; Bilyeu v. Smith, 18 Or. 335, 22 P. 1073. The admission, claimed by defendant to be included in the language of the reply above quoted, could not arise, except that reference be made to the affirmative matter of the answer to interpret it. The words "certain cows of the plaintiff" of themselves do not necessarily mean the cows mentioned in the complaint upon which the cause of action is based. The answer contains the same language, and there is nothing elsewhere therein that identifies the "certain cows of the plaintiff" to be those described in the complaint. For all that appears upon the face of the pleadings, the averments of the answer may be true, and yet be no bar to a recovery on the cause of action set forth in the complaint. Plaintiff may have had another and different cause of action, which for some reason he did not see fit to include in his complaint.

It necessarily follows that upon a strict construction of the answer the defense of contributory negligence is not in this case; at least defendant, when judgment has gone against him is not in a favorable position to ask for its reversal for this particular alleged error. Specht v. Allen, supra. Assuming, however, that the issue of contributory negligence is made by the answer, we will now examine plaintiff's testimony and ascertain whether any indisputable inference can be drawn from the uncontradicted facts which disclosed the omission or commission of any act by plaintiff or his servant, which the law adjudges negligent. The facts disclosed by the record are: That plaintiff operates a dairy in the vicinity of Sumpter, and had in his herd about 38 cows. That in the month of August, 1906, he pastured his cows for the most part on a farm called in the record the "Jett" place, situate about 2 miles east from the dairy and about 1 1/2 miles south and east of Sumpter Depot, and through which defendant's main line going from Sumpter to Baker City passes, but sometimes the cows were turned out to feed upon the commons. That defendant's track is unfenced from Sumpter Station to the Jett place. On the morning of August 6, 1906, the cows were driven by one of plaintiff's hired men out to feed upon the commons, and left back of the Jett place and in the vicinity of the smelter, which is upon or near a branch road leaving the main line between 1 1/4 and 1 1/2 miles south and east of the Sumpter Depot and going to Austin. That between the smelter and defendant's right of way and plaintiff's barn or dairy the country is not fenced, and is covered with brush, but affords good pasturage. About 3 o'clock in the afternoon of that day Robert...