Martini v. Oregon-Washington R. & Nav. Co.

• Decision Date: 20 October 1914
• Citation: Martini v. Oregon-Washington R. & Nav. Co., 73 Or. 283, 144 P. 104 (Or. 1914)
• Parties: MARTINI v. OREGON-WASHINGTON R. & NAV. CO.
• Court: Oregon Supreme Court

144 P. 104

73 Or. 283

MARTINI v. OREGON-WASHINGTON R. & NAV. CO.

Supreme Court of Oregon

October 20, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by Calestro Martini against the Oregon-Washington Railroad &amp Navigation Company. From an order setting aside a verdict and judgment for plaintiff and a new trial, he appeals. Affirmed.

E. R. Ringo, of Salem (Kimball & Ringo, of Portland, on the brief), for appellant. C. E. Cochran, of Portland (W. W Cotton and A. C. Spencer, both of Portland, on the brief) for respondent.

RAMSEY J.

This is an action to recover damages for personal injuries, occurring to the plaintiff in the state of Washington. The Northern Pacific Railway Company maintains a double track railroad from Portland to Tacoma and other points in the state of Washington. This road runs via Vancouver Ridgefield, and other towns in Washington. By authority of a contract with the Northern Pacific Railway Company, the defendant runs regular passenger and freight trains over said double track railroad from the city of Portland via Vancouver, Ridgefield, and other points, to Tacoma and other Puget Sound cities.

On the 3d day of February, 1913, the plaintiff was in the employ of the Northern Pacific Railway Company as a track walker, at and near Ridgefield, in Clarke county, state of Washington. It was his duty to walk the said track of said company from the station at Ridgefield south, a distance of a mile and a half, in Clarke county. He was to begin his work at 7 o'clock a. m., each day, and walk over said track frequently during the day, for the purpose of discovering obstructions thereon, etc. He was not a servant or employé of the defendant. From 30 to 40 trains pass over said track daily.

On February 3, 1913, he appears to have begun his work as early as 6:15 a. m., and when he had walked about a mile south of Ridgefield, at about 7 o'clock a. m., he was struck by a freight train of the defendant going south. His left leg was broken, and he received other serious injuries, which, he contends, incapacitated him permanently to earn a living. He demands damages in the sum of $25,000.

The following portions of the complaint state the plaintiff's cause of action:

"That on the 3d day of February, 1913, plaintiff was employed by the Northern Pacific Railway Company on said double track line of railway between the city of Tacoma, Wash., and the city of Portland, Or., as a 'track walker' between the stations of Ridgefield and Felida, in Clarke county, Wash., and that in the performance of his duty as such track walker on said day, at about the hour of 7 a. m., plaintiff was walking on said track on the lookout for obstructions, and, while engaged as aforesaid, defendant's employés and servants, in charge of one of defendant's trains running on said double track, carelessly and negligently ran said train at a high and dangerous rate of speed upon plaintiff, and said train struck and hit plaintiff and threw plaintiff with great force and violence off said track. That defendant's employés and servants, in the operation of said train as aforesaid, carelessly and negligently failed to give any warning to plaintiff of said train, and carelessly and negligently failed to ring the bell or blow the whistle of the said train as said train approached plaintiff while in the performance of his duty as aforesaid, and that plaintiff, because of the careless and negligent acts of defendant's servants and employés as aforesaid, suffered a compound fracture of his left leg, fractures of ten ribs, great and severe bruises, contusions, lacerations, and wounds about the head, back, arms, lungs, legs, and his private organs, and because thereof plaintiff has suffered and still suffers great pain and mental anguish, and because thereof plaintiff has been and now is incapacitated, permanently disabled, and unable to earn his livelihood."

The defendant denied most of the allegations of the complaint, and set up negligence on the part of the plaintiff. After alleging that it was very foggy on the morning of February 7, 1913, when the plaintiff was injured, etc., the answer alleges:

"A short distance from Ridgefield, Wash., and outside the yard limits, and particularly on the main track of said railroad, the plaintiff was walking along between the rails thereof. His presence was not known to the defendant or its crew in the operation of said train. Said plaintiff did wrongfully trespass and go upon said railroad track, and did carelessly and negligently be and remain upon, and walk along, said railroad track outside of yard limits, without right, without authority, and against the will and consent of either the Northern Pacific Railway Company, or of this defendant, or of any other railroad company operating trains thereover. Defendant's train, upon said occasion, was approaching Ridgefield, was reasonably well loaded and making a large amount of noise, which sounds of the running train were easily and readily heard for some time prior to the time the said train arrived at the point where plaintiff was walking. The headlight of the defendant's engine was burning brightly during all of the time the train was proceeding from Ridgefield to and beyond the place where plaintiff was walking. The plaintiff had no right to be or remain upon, or walk along, said track, but was trespassing thereon, and, notwithstanding plaintiff was wrongfully and unlawfully on said railroad track, yet he did also carelessly and negligently fail, neglect, and omit to listen for the approach of defendant's said or any train, or to look for the approach of the same, and, if he had listened and looked for the said train, he could have heard its approach in ample time to have stepped from said track and avoided the collision hereinafter mentioned. Said plaintiff did also carelessly and negligently remain upon and walk along said track, and did continue to do so until said train arrived within such close proximity to plaintiff that a collision with him was unavoidable, and said engine did collide with plaintiff, whereby he suffered injury, if any, and not otherwise. The defendant was operating said train at a reasonable rate of speed, and had no reason to anticipate the presence of the plaintiff on said track at said point."

The reply traversed the larger part of the new matter of the answer. A verdict was rendered in favor of the plaintiff for the sum of $12,500, and a judgment was entered thereon. The defendant filed a motion to set aside the verdict and judgment, and for a new trial, for various reasons, including errors of law, occurring at the trial and excepted to by the defendant. The grounds for the motion were set out with particularity, but we find it unnecessary to consider more than one of the reasons stated in the motion, to wit: "That there is no legal evidence to support said verdict." The court below took said motion under advisement, and later allowed the same and granted a new trial. The order granting a new trial is expressed in general terms; but we understand that the trial court was of the opinion that there is no legal evidence to support the verdict.

Under our present statute an order granting a new trial is appealable, and we think that, when a trial court grants a new trial, it should state upon what ground it grants it.

1. A verdict of a jury can be set aside for want of evidence to support it only when the court can say affirmatively that there is no evidence to support it. State Constitution, art.

7, § 3.

In order that a verdict may be supported by the evidence, there must be some legal evidence tending to prove every material fact in issue, as to which the party, in whose favor the verdict was rendered, had the burden of proof.

2. Under the settled practice in this state, in actions for negligence, it is necessary that the complaint state the negligent acts or omissions constituting the cause of action. Heilner v. Union County, 7 Or. 83, 33 Am. Rep. 703; Kohn v. Hinshaw, 17 Or. 308, 20 P. 629; Woodward v. O. R. & N. Co., 18 Or. 289, 22 P. 1076.

In this case, the negligent acts of which the plaintiff complains are stated in the complaint. Briefly stated, they are as follows: (a) That the defendant's employés and servants "carelessly and negligently ran said train at a high and dangerous rate of speed"; (b) that the defendant's employés and servants, in operating said train, "carelessly and negligently failed to give any warning to the plaintiff of the approach of said train, and carelessly and negligently failed to ring the bell or blow the whistle of said train as said train approached the plaintiff, while in the performance of his duty as aforesaid, and that the plaintiff, because of the careless and negligent acts of the defendant's servants and employés, as aforesaid, suffered a compound fracture," etc.

The foregoing are all of the negligent acts and omissions of which the plaintiff complains. The acts or omissions complained of are the alleged high and dangerous rate of speed at which the train was running; the failure of the employés and servants of the defendant to give to the plaintiff warning of the approach of the train; and the failure to ring the bell or blow the whistle of the train as it approached the plaintiff. The plaintiff's right to recover is based on said allegations of negligence, and no other negligent acts or omissions can be considered by us.

Section 725, L. O. L., provides that the evidence shall correspond with the substance of the material allegations, and be relevant to the questions in dispute, and collateral questions shall therefore be avoided. There is no allegation that the employés of the defendant neglected to keep a lookout for the...