Long v. Pacific Ry. & Navigation Co.

• Decision Date: 10 November 1914
• Citation: 144 P. 462,74 Or. 502
• Parties: LONG v. PACIFIC RY. & NAVIGATION CO.
• Court: Oregon Supreme Court

144 P. 462

74 Or. 502

LONG v. PACIFIC RY. & NAVIGATION CO.

Supreme Court of Oregon

November 10, 1914

Department 1.

Appeal from Circuit Court, Tillamook County; William Galloway Judge.

Action by Frank Long,, Sr., as administrator of the estate of William Campbell, deceased, against the Pacific Railway &amp Navigation Company, a corporation, to recover damages for the death of the deceased, which is alleged to have been caused by the defendant's negligence. From a judgment for plaintiff in the sum of $2,000, defendant appeals. Reversed and action dismissed.

John F. Reilly, of Portland (Wm. D. Fenton and Ralph E Moody, both of Portland, and Webster Holmes, of Tillamook, on the brief), for appellant. R. R. Duniway, of Portland (S. S. Johnson, of Tillamook, on the brief), for respondent.

MOORE J.

It is maintained that the testimony shows the deceased was guilty of negligence, contributing to his injury, and, this being so, errors were committed in denying a motion for a judgment of nonsuit and in refusing to direct a verdict for the defendant. The defendant operates, from Portland to Tillamook, in this state, a railroad, a part of which is built along the south shore of Nehalem Bay, where the line is constructed through Vosburg, or Wheeler, and a little east thereof, through New Wheeler. A landslide having occurred west of Wheeler, the defendant on November 4, 1912, was engaged in hauling the débris that had fallen near its track and dumping same near New Wheeler. The train used for that purpose was known as "Extra No. 1," and consisted of three flat cars, a passenger coach, used as a caboose, and a locomotive, with a tender. When loaded, the train was run backwards; the position of the cars and engine being in the order stated. On the day mentioned extra No. 1, loaded with mud, sand, and gravel, was run upon a spur near a sawmill at Wheeler, in order to permit freight train No. 2500 to pass, going east. As soon as the rear end of that train crossed the line of the switch connecting the mill slip, extra No. 1 came out and began backing east on the main line, only a few hundred feet behind the freight train. William Campbell who had been standing near the mill office, crossed the track to the south as soon as train No. 2500 passed. He then went east on a plank walk a short distance to the end thereof, when, without looking back, he stepped upon the track in front of extra No. 1, and, having taken 4 or 5 paces, was hit by the car, knocked down, and injured, from the effects of which he died. Jay Houser, who was 14 years old, appearing as plaintiff's witness and referring to William Campbell as of the time of the accident, testified as follows:

"He started up above [referring to the location of the sawmill], and got to the end of the walk, and the 2500 had just passed, and he stepped in behind it, and he stepped off the walk, and there was another train (extra No. 1), with a couple of flat cars--two or three; I don't know for sure how many, but there were either two or three--and they were going by, and they had mud in them, and he stepped in behind the 2500 and went walking right up the platform, and when he got to the end he stepped off of the platform into the track; and I hallooed at him and whistled at him to get off the track, and he didn't hear me, I guess, and he just walked two or three steps, and the train hit him, and it struck him right about in the back."

On cross-examination this witness testified as follows:

"Q. Now when he [Campbell] came along this board walk, did he look back any time? A. No, sir; he went on when that train was gone down there. Q. What train? A. The 2500. Q. Where was he when they came through? A. Right about in here (referring to a photograph). Q. That is, he was standing clear over at the sawmill? A. Yes, sir. * * * Q. Then he came from there onto this board platform, which parallels the railroad track? A. He walked on that board walk right down by it. * * * Q. And he walked clear the whole length of that, did he? A. Yes, sir. * * * Q. During the time he was walking along that board walk there he was clear of the railroad track? A. Yes, sir. Q. He was where the train wouldn't hit him, wasn't he? A. He was where it wouldn't hit him, if he walked over further. Q. If he walked along the walk, the way he was going, the engine or none of the train would have hit him; isn't that so? A. Yes; but if he had kept on he would have walked into a ditch. Q. After he came to the end of the walk? A. Yes. * * * Q. He didn't look back at any time? A. No. * * * Q. Did he look back any time he was walking on the track? A. Well, I was right over on the platform there by the cook house, and I hallooed at him, and he looked at me; never looked back, though. I told him to come in and have supper. Q. That was when he was on the board walk? A. Yes, Q. I mean after he got on the track? A. No. * * * Q. How far was the train from him when he stepped onto the track--the train that hit him? A. I couldn't say. * * * Q. Just about the length of the room (referring to the courtroom)? A. Just about. Q. That is, he was just about that far ahead of the train when he stepped onto the track in front of it? A. Yes, sir; maybe not that far. (The room referred to was thereupon measured, and found to be 49 feet in length.) * * * Q. Now, when you saw him step on the track, you hallooed at him; is that right? A. Yes. Q. What did you halloo at him? A. I just told him to get off the track. Q. Did you halloo very loud at him? A. Well, as loud--I don't know how loud I hallooed. I hallooed loud enough for he ought to have heard. He could have heard, if it hadn't been storming, I know. Q. How far were you from him, about? A. I don't know. Q. How far were you--say how would it compare with the length of the courtroom here? A. It is further; * * * well, it is about twice as far, I guess."

The deposition of Mabel Tillotson is to the effect that she saw the accident; that the train causing the injury was moving with extraordinary speed; that she saw no person in charge or control of the cars, nor did she hear any signals given. A part of her sworn statement is as follows:

"Q. Do you think you could have heard a bell ringing from your position? A. I am sure I could, because I heard the bell and whistle from the train that had just passed (No. 2500). I was standing in the same place. Q. You speak of the train that had just passed. Explain what you mean? A. I was speaking of the other train, that just passed a little in advance of this one. They were whistling and ringing the bell for a man to get off the trestle. Q. At the time of the accident? A. While they were making all this noise, the other train came along and struck this man. Q. About how far was the train that was whistling ahead of the train that struck Campbell? A. Do you mean how far between the trains? Q. Yes. A. About three or four car lengths, I should say. Q. About how long had it passed the point where Campbell was struck, before he was struck by the other train? A. I wouldn't be sure, but just a little while."

The plaintiff introduced testimony tending to show that a trail had been cut through the brush from Wheeler to New Wheeler, but that most pedestrians from one of these places to the other passed along the railroad, although in doing so it was necessary to walk along a trestle.

The foregoing is thought to be the important parts of the testimony received when the motion for a nonsuit was interposed.

Thereafter W. H. Frink, as defendant's witness, testified that at the time of the accident he was employed as a brakeman and stood on the leading car, about 15 feet from the forward end as it was backed east; that after the freight train passed the mill slip he gave a back-up signal, to which the engineer responded with three short blasts of the whistle, and after reaching the main line a crossing whistle was also given; that when the witness first saw Campbell he was about two car lengths ahead, going east on the platform, and reaching the end thereof he stepped to the earth and took about three paces, when, without looking back, he sprang on the track about 15 feet ahead of the work train Upon this subject the witness testified as follows:

"Q. What did you do, if anything, when you saw him jump on the track in front of the car? A. I hallooed at him when he stepped off the end of the plank walk there, and he didn't seem to pay any attention to me, and when he stepped on the track I hallooed and whistled and everything else, everything in my power, to get him off the track, and gave violent stop signals to the engineer."

This witness further...