Leonard v. Southern P. Co.

• Decision Date: 18 January 1892
• Parties: LEONARD v. SOUTHERN PAC. CO.
• Court: Oregon Supreme Court

28 P. 887

21 Or. 555

LEONARD v. SOUTHERN PAC. CO.

Supreme Court of Oregon

January 18, 1892

Appeal from circuit court, Marion county; R.P. BOISE, Judge.

Action by Silas M. Leonard against the Southern Pacific Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

Bronaugh, McArthur, Fenton & Bronaugh, for appellant.

Dell Stewart and Geo. D. Young, for respondent.

LORD J.

This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant on the occasion of the wrecking of the defendant's railroad train at Lake Labish. The trial resulted in a judgment for the plaintiff, from which the defendant prosecutes this appeal.

There are several assignments of error, all of which relate to the admission of evidence, but which for convenience have been grouped under two heads or objections, and thus presented to this court. Before proceeding to their consideration, and as essential to a fair understanding of them, it is necessary to ascertain the issue to be tried, and the facts and circumstances under which the exceptions were taken, as shown by the bill of exceptions. Among other things, the complaint alleges that Lake Labish--the place where the train was wrecked--"is a low, wet, marshy place, well suited to the decay of bridge timbers, or any other wooden structure pertaining to a railroad. That it was of such character of soil as to prevent adequate foundation or stability of structure for a railroad bridge, though the defendant maintained a bridge across the same at the time, and so crossed its trains over. That defendant rendered said foundation even less stable by casting gravel and loose stone therein, instead of properly filling it. That the nature of said soil and foundation were well known to the defendant at said time, or with ordinary care on its part would have been known. That said bridge was permitted to stand and was used by defendant to pass its trains over, although the timbers and materials therein were decayed and worthless and wholly unfit for the purposes for which they were used. That on said day said bridge, by reason of said worthless foundation, and the negligent manner in which it was maintained by defendant, and by reason of its said improper construction, and the failure of defendant to make proper repairs, gave way underneath said train, and the car on which plaintiff was being carried was thrown from the track, and cast to the bottom of said lake, and turned partly over and on end, and thus it was that plaintiff was thrown violently down and about said car, and was greatly injured," etc. The bill of exceptions shows that "evidence was introduced tending to show that the bridge or trestle-work across the place known as 'Lake Labish,' mentioned in the pleadings, was a structure built of timber. That the trestles or bents were composed of mud-sills, upon each of which rested four posts, the two outside posts, called 'batter posts,' inclining inward towards each other and the two inside posts, called 'plumb posts,' standing perpendicularly; upon the top of which four posts rested another timber, called the 'cap.' That longitudinal timbers, known as 'stringers,' rested upon these caps, upon which stringers the cross-ties were laid which supported the steel rails of the track of the defendant's road mentioned in the pleadings. That the said bents were of different heights at different points, and ranged from eight or ten to sixteen or eighteen feet high. That the mud-sills of the bent rested on piling driven into the ground, and the stringers and rails were fastened together with bolts, upon one end of each of which was a head, and the other end a screw-thread for a nut. That the entire length of said trestle-work or bridge was about 1,500 feet; and that about 600 feet thereof, measuring from the north bank of said Lake Labish, was involved in the wreck and fell to the ground at the time when the train mentioned in the pleadings was wrecked." There was evidence also "tending to show that said bents were about twenty feet apart, and that some twenty-five of the bents which fell were erected of new timber about eighteen months prior to the date of said wreck."

It will be noted that the bridge is one continuous structure, made of bents and stringers, and that its length from one bank of the lake to the other is 1,500 feet, and that 600 feet of it went down underneath the train. The main ground of complaint is that the plaintiff was allowed by the trial court to introduce evidence in regard to other portions of the bridge than that portion of it--estimated to be 600 feet--involved in the wreck. The contention is that the evidence must be confined to the wrecked portion of the bridge alone, and that the admission of evidence tending to show that the southerly portion of the bridge, more than a hundred feet away from the wreck, was not in a good condition, or out of repair, was error. The bill of exceptions shows that Mr. Lovell, a witness for the plaintiff, was asked: "How was the remainder of the bridge, with reference to that in appearance?" (The word "that," here used, referred to that portion involved in the wreck.) An objection was made to the reception of this testimony, on the ground that it related to a part of the bridge not involved in the wreck; but the court overruled it, and the witness answered: "Apparently the same age and of the same construction as these five bents [involved in the wreck;] and those bents at that point were built with mortises and tenons, and the timbers generally appeared to be of the same condition and age. Question. What do you mean by 'the same condition?' Answer. Well, there would be some bents. Perhaps one end of the timber would be comparatively sound, and the next would be almost worthless. Q. What did you find with reference to the bolts through the stringers in the bridge, if anything, as to their condition and the nuts on them? [ This question referred to all that portion of the structure in the neighborhood of that which broke down.] A. Quite a number of bolts--I think 76--in that portion of the structure had no nuts on them at all." Another witness was asked: "Q. You may state the condition of the piling at that time. A. There was some piling that was sound as when they were driven there, but there was some of them very rotten. Sometimes you would find a bent with one rotten pile, sometimes it would have two, and sometimes they would all be sound. They were scattered all through the trestle, from one end to the other. I could not say that there was any rotten piling in the north end, nor in the south end, but they were in the trestle." This answer was objected to, but the court held that "it was competent to show everything about the whole bridge." There is other evidence of the same character, and to which the same objection was made and overruled, but this much is sufficient to test the force of the objection to its competency and materiality. It is no doubt true, as claimed by counsel, that defects in other portions of a railroad track, remote from the place of the injury, and in no way whatever contributing to it, are inadmissible as evidence. The cases cited support this view, and some reference to them is necessary to show their application. In Railroad Co. v. Fox, 11 Bush, 505, the evidence showed that the road was divided into sections of several miles in extent, and the immediate supervision of the track in each committed to a section boss. The accident occurred on a section under control of one Howard, a section boss, and the plaintiff was permitted to prove, against the objections of...