Johnston v. Oregon Short Line & U.N. Ry. Co.

• Decision Date: 25 October 1892
• Citation: 31 P. 283,23 Or. 94
• Parties: JOHNSTON v. OREGON S.L. & U.N. RY. CO.
• Court: Oregon Supreme Court

31 P. 283

23 Or. 94

JOHNSTON v. OREGON S.L. & U.N. RY. CO.

Supreme Court of Oregon

October 25, 1892

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action by William B. Johnston, administrator, against the Oregon Short Line & Utah Northern Railway Company. Defendant had judgment, and plaintiff appeals. Reversed.

Thos. O'Day, for appellant.

W.W Cotton and Zera Snow, for respondent.

MOORE, J.

The appellant commenced an action in the circuit court for Multnomah county against the respondent to recover damages for wrongfully causing the death of David H. Cope. The appellant alleged in his complaint, in substance, that he was the administrator of the estate of David H. Cope, and that the respondent was a corporation duly incorporated and engaged in operating a railroad in this state; that on the 9th day of December, 1890, David H. Cope was an employe of the defendant for hire as switchman, in its yard at The Dalles in this state, and while so engaged was injured by being struck by a target pole on defendant's road in the said yard, and thrown under the wheels of one of defendant's cars, whereby his legs were crushed, from which injury he died on the 10th day of December, 1890; that defendant had negligently caused to be erected and maintained in its yard at The Dalles a switch, to be used in switching engines and cars; that part of said switch consisted of a securely fastened perpendicular shaft, some six feet high generally called a switch target pole, which was carelessly erected and maintained in such close proximity to its track as to needlessly hazard the life of said David H. Cope and other employes engaged in switching, and that the dangerous and hazardous condition of said switch was well known to defendant; that at the time of the injury said Cope was in the due performance of his duties, and defendant, regardless of its duties, failed to furnish said Cope and other employes in switching cars, at the time such injury occurred, with the usual and ordinary switch engine in use in said switch yard at The Dalles, but caused and directed said Cope and other employes to use an ordinary road engine for such switching that in switching it was necessary for said Cope, as switchman, to ride on the cars or engine from one portion of the yard to another; that the switch engine in ordinary use at said yard is provided with footboards, hand rails, and hand stakes on the front and rear of the engine, so that the switchmen may ride thereon in safety, but that said road engine had no such footboards, hand rails, or hand stakes, and that, in order to do his duty as such switchman he had to ride on one of the cars that at the time was being switched; that at the time of the injury, in passing said switch target pole, and without any negligence or fault on the part

of said Cope, he was struck by said switch target pole, and received the injury complained of; that the defendant failed to provide the switches in said yard with switch lights; that the switch where said Cope was injured was erected much nearer the track than is usual for like switches to be placed; that the usual switch engine is provided with both head and rear lights, but that said road engine then being used had no light in the rear, while switching, and that the absence of said light directly contributed to the injury of said Cope, as said engine was then backing up, pulling the cars that were being switched, and that the switch target pole could not be seen by said Cope so as to avoid the injury; that by reason of the negligence of defendant, and without any negligence of said Cope, and without the breach of any of the conditions of his employment, and while in the due performance of his duty, said Cope was injured by defendant, and his death caused thereby, to the damage of his estate. A demurrer was interposed to this complaint, on the ground that the same did not contain facts sufficient to constitute a cause of action, which the circuit court sustained, and plaintiff was given leave to amend, which was done by alleging, in addition to the original complaint, that said Cope was employed for hire, being a "night" switchman, and also adding, "but said Cope had only been employed in said yard a few days, and his work was in the nighttime, and the dangerous condition of said switch and yard was unknown to him." An answer and reply were filed, the issue completed, and appellant submitted his testimony, upon which the respondent then moved the court for a nonsuit, which was granted, from which judgment this appeal is taken, and the following are assigned as errors: "First. The court erred in sustaining the demurrer to appellant's original complaint, and requiring him to amend and allege that deceased had no knowledge of the dangerous condition of the switch, as knowledge of the condition of any unusually dangerous or hazardous machinery or appliance is a matter of defense. Second. The court erred in refusing to allow the witness Holland to answer the two questions put to him, viz.: 'What Cope said as to his injury, when he went to him to pick him up at the switch where he was injured,' and 'whether or not it was proper for him to ride on the ladder of the car, where he was riding at the time of the injury.' Third. The court erred in sustaining defendant's motion for a nonsuit, and refusing to submit the evidence to the jury, for the reasons (1) that whether the switch in question was maintained too near the track, and (2) whether deceased assumed the risk, as one of the ordinary risks of his emplyment, were questions of fact for the jury, and not questions of law to be determined by the court."

The appellant prepared and filed a bill of exceptions, which is simply a transcript of a stenographer's notes taken at the trial of the cause. This bill of exceptions contains the objections of counsel for both parties, the rulings of the court on such objections, and the exceptions taken, and respondent files a motion to strike the bill of exceptions from the record, relying upon the decision of this court in Eaton v. Navigation Co., 30 P. 311. In Eaton v. Navigation Co., supra, objection was taken in the court below to the form of the bill of exceptions, and protest there made by plaintiff's counsel. In this case the order admitting and allowing the bill of exceptions says that the same was presented to counsel for defendant, and by consent it was allowed as a bill of exceptions. The error, if any, occurred when appellant concluded his testimony, by the court sustaining the motion for a nonsuit. There is much immaterial matter contained in this bill of exceptions, but, as the question is raised that the court erred in sustaining the motion for a nonsuit, this necessitates an examination of more testimony than almost any other question that could be presented. It is a general rule that, unless the bill of exceptions contains all the evidence, it will be presumed there was sufficient to support the verdict. White v. Transportation Co., (Wis.) 1 N.W.Rep. 75. For these reasons the motion to strike the bill of exceptions from the record must be denied.

Mr Wood, in his work on Railway Law, (section 386,) thus states facts which must be established by the servant in order to recover for injuries received from defective appliances and machinery: "The servant, in order to recover for defects in the appliances of the business, is called upon to establish three propositions: (1) That the appliance was defective. (2) That the master had notice thereof, or knowledge, or ought to have had. (3) That the servant did not know of the defect, and had not an equal means of knowing with the master. Is it necessary for the plaintiff to allege the third ground, as laid down by Mr. Wood? In Kahn v. Love, 3 Or. 206, this court held that "the plaintiff, in an action for damages occasioned by defendant's negligence, must so frame his complaint as not to leave an inference that he was guilty of negligence that contributed to his injury." In Walsh v. Navigation Co., 10 Or. 253, this court says: "He must prove that the accident was caused by the wrongful act, omission, or neglect of the defendant, and that the injury of which he complains was not the result of his own negligence, and the want of ordinary care and caution." We think the latter clause of the above quotation was certainly a lapsus linguae, and all that was intended thereby was that the plaintiff must be prepared to meet this issue when presented as a defense. A careful examination of the whole opinion in this case clearly shows that the court did not intend to lay down such a rule. In Grant v. Baker, 12 Or. 329, 7 P. 318, this court explained the foregoing by comparing it with the whole opinion, and showed that it was not intended by the court at that time to so enunciate a general rule, but to apply the facts to that particular case. THAYER, J., speaking for the court, laid down the rule as follows: "I think it has always been understood by this court that contributory negligence is a defense, and must be averred as such," and "where the injury results from the direct act or omission of the defendant, which prima facie is negligence in itself, and the plaintiff receives an injury in consequence thereof while pursuing his ordinary course of affairs, he will not be compelled, in order to recover his damages, to prove that he was free from fault." In Coughtry v. Railway Co., 21 Or. 245, 27 P. 1031, STRAHAN, C.J., says: "The gist of this action is negligence; and...