Lange v. St. Johns Lumber Co.
| Decision Date | 14 July 1925 |
| Citation | 237 P. 696,115 Or. 337 |
| Parties | LANGE v. ST. JOHNS LUMBER CO. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.
Action by Agnes Lange against the St. Johns Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded with directions.
R. W. Wilbur, of Portland (Wilbur, Beckett & Howell of Portland, on the brief), for appellant.
G. G Smith, of Portland (Henry E. McGinn, of Portland, on the brief), for respondent.
The plaintiff, a woman of the age of 48 years, and hitherto in perfect health, brings this action against the defendant alleging among other things:
"That during all times herein mentioned the defendant was the owner, lessor, in possession and had charge of and controlled a certain large dock situate in the county of Multnomah, state of Oregon, extending from the shore to and protruding into said river,"
--meaning the Willamette river, which she alleges is a navigable stream and a public highway. After averring that a sea-going vessel engaged in loading merchandise was moored alongside of said dock at the time of the occurrences stated in the pleadings, she says in substance that the only access to said vessel from the shore line, and the one used by the general public, is across said dock; that on the night of March 4, 1922. while she was walking there coming from the vessel, she fell into an unguarded opening which was in that portion of the dock extending into the river, whereby she received injuries to her damage. For her specifications of negligence charged to the defendant she avers:
"That the proximate cause of said injury to plaintiff was the careless, reckless, wrongful, unlawful, and negligent acts of the defendant in (1) allowing said opening in said dock to be unguarded knowing, or with the exercise of reasonable care could and would have known that persons passed from the shore line over and across said dock to and from said vessel; (2) in failing to place a guard around and about said opening; (3) in failing to place a danger or warning signal at said opening on said dock; (4) in failing to keep a light upon said dock whereby persons crossing said dock could observe said opening and the danger in connection therewith; (5) for failure to cover said opening during the hours of the night when said opening was not being used; (6) in establishing, maintaining, employing and operating invisible, dangerous instrumentalities, devices, and agencies at the place aforementioned, the same being upon and along a public highway, and without giving any notice or warning of the location or existence thereof or the danger in connection therewith; (7) in establishing, maintaining, employing, and operating dangerous instrumentalities, devices, and agencies, at the place aforementioned, whereby a certain area or portion of said place, the same being a public highway, became dangerous premises without establishing or maintaining a guard or safety device to prevent persons from coming in contact therewith and being injured thereby, including a cover or safety device over said opening; (8) in establishing, maintaining, employing, and operating dangerous devices and agencies upon a public highway at the place aforementioned, without establishing and defining by properly marked notices and signals said dangerous area or by inclosing the same, thereby preventing injury to plaintiff and pedestrians."
The averments about the river, the ownership of the dock, and the presence of the vessel at the dock are admitted. The rest of the complaint is denied. It is stated in the answer, in substance, that the plaintiff, with others, went aboard the vessel during the evening of March 4, 1922, and remained there until the following morning between 2 and 3 o'clock, when she with others started to leave the boat; her destination being unknown to the defendant. It is averred that at the time she was a trespasser on the dock, and was not present there by any invitation, express or implied, on the part of the defendant. It is said likewise that leading from the portion of the dock where said vessel was moored there was an open and safe passageway from the boat to the street adjacent to the dock; that at the time of the accident there were no lights upon the dock, and that the plaintiff was unfamiliar with the dock, and was aware of the absence of lights thereon; that a guide in whose charge she placed herself was a person who had been on board with them, and was in no condition to guide her safely across the dock, and that, instead of going along the regular safe pathway, the plaintiff and her guide and party turned off from the same into a side alley between some lumber piles, where the plaintiff and her guide fell through a hole in the dock to a platform below, this being the accident referred to; that no one of them carried any light, although it was dark at the time of the accident, so that plaintiff and her guide wandered off from the safe path to the street, and fell into the hole as stated.
Contributory negligence is charged to the plaintiff in various forms. The new matter in the answer was traversed by the reply in many particulars. At the close of the plaintiff's testimony the defendant moved for a judgment of nonsuit, and at the close of all the testimony moved for a directed verdict in favor of the defendant, both of which motions were denied, and these rulings of the court are among the assignments of error. There was a verdict and judgment in favor of the plaintiff, and defendant appeals.
As a preface it may be stated that the complaint gains no additional force from the averment that the dock protrudes into the Willamette river. By an act of the Legislative Assembly in 1872, amended in 1874 and 1876 (Laws 1872, p. 129, Laws 1874, p. 76, Laws 1876, p. 69), the state of Oregon granted and confirmed to the owners of uplands abutting on that river all the lands opposite such holdings between high and low water marks. Hence it might be that the structure involved would protrude into the river and still be wholly on private property and not within the limits of the water highway. This theory is strengthened by the plaintiff's averment that the defendant is the owner and in possession of the dock.
The substance of the testimony on behalf of the plaintiff is that she and her husband and two daughters had been invited by the captain of the vessel to dine with him on board the ship, and in pursuance of the invitation they arrived there between 8 and 9 o'clock in the evening of March 4th. As they came to the dock they met a man who apparently was a watchman, and inquired about where the vessel was docked. He pointed towards the place, and started to conduct them thither, when the captain came up and escorted them aboard, after traversing the dock. After dining, they remained there until about 2 o'clock of the following morning, when they left the ship, conducted by the mate. The testimony shows that the route adopted by them in going aboard was an open way some 12 or 16 feet wide, kept open for the purpose of allowing lumber trucks to pass each other in delivering lumber about the dock. After leaving the vessel by its gangplank, they were required to go up an incline from the lower part of the dock to the upper part on a level with the lumber yard near where the vessel was situated. The testimony shows it was quite dark at the time. The moon had set about two hours before, and the darkness is described all the way from so dark that the people could not see, but could only feel the lumber piles, to a statement that the people could only see very dimly. The evidence shows that, after reaching the head of the incline, the parties proceeded a little way along the open way, when they turned off to the left between some lumber piles, and soon came to the hole in the dock. This was the opening on the chute by which timbers were conveyed into the river. The plaintiff and the guide and one of her daughters, all adults, fell into this opening, whereby the plaintiff sustained the injuries of which she complains.
So far as here involved, the dock is used exclusively by the defendant as a storage place for lumber, which it ships to other points. The vessel was then moored to the dock for the purpose of taking on a cargo of lumber from the defendant's sawmill, also on the dock. The only testimony directly upon the point of the purpose of the plaintiff's presence on the dock was given by her husband as follows:
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