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

CourtSupreme Court of Oregon
Writing for the CourtMcCAMANT, J. (after stating the facts as above).
PartiesMORATA v. OREGON-WASHINGTON R. & NAV. CO.
Decision Date22 January 1917

170 P. 291

87 Or. 219

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

Supreme Court of Oregon

January 22, 1917


Department 2.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Action by Loreneso Morata against the Oregon-Washington Railroad & Navigation Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action brought to recover damages for a personal injury sustained by plaintiff on December 31, 1915. At that time plaintiff had been in the employ of the track department of the defendant for approximately 15 months. Prior to December 31st it had been snowing and early on the morning of that day plaintiff had been ordered to clean away the snow from a switch at the west end of the passing track at Bacon, a station in Union county between Union Junction and Telocasset. He began work a few minutes after 7 o'clock in the morning, and was injured between 7:30 and 8. The wind was blowing from the east and the weather was cold. Plaintiff's cap partially covered his ears, and may have impaired his hearing. In the performance of his work he was required to bend over and was facing westerly. While in this position a train consisting of a rotary snowplow, tender, and caboose backing down hill ran into him and caused the injuries of which he complains. Plaintiff testifies that when he was hurt he was standing with one foot on the end of the tie and the other foot on the ground. He testifies that he could have seen the train at a distance of half to three-quarters of a mile from the place of the accident; that generally he was looking every few minutes. A light engine had passed in a westerly direction at about 7:15. Plaintiff testifies that he did not expect any other train in the same direction so soon thereafter, but that he had looked in an easterly direction from three to five minutes before he was hurt. Negligence is charged against the defendant, based on its alleged failure to keep a lookout on the train and to give warning of its approach. The defendant pleads affirmatively contributory negligence and assumption of risk. Plaintiff recovered judgment in the court below. Defendant appeals.

W. A. Robbins, of Portland (A. C. Spencer, of Portland, on the brief), for appellant. Edward J. Brazell, of Portland, for respondent.

McCAMANT, J. (after stating the facts as above).

The assignments of error are directed wholly to the denial of defendant's motions for a nonsuit and for a directed verdict. In speaking of a motion for a directed verdict, Mr. Justice Wolverton says, in Stager v. Troy Laundry Co., 41 Or. 141, 143, 68 P. 405:

"Like a motion for a nonsuit, or a demurrer to the evidence, it admits everything to be true that the testimony[87 Or. 222] legally tends to prove, ascribing to every statement of fact in evidence absolute credence; so that if there is testimony in the case from which the jury can, by application of intelligent and reasonable deduction fairly and legitimately infer the fact in issue, the jury are to determine the matter, notwithstanding other evidence may have been adduced in direct conflict therewith."

The foregoing principles have been many times affirmed by this court. The question to be decided is whether, viewing the testimony in the light of the above principles, we can say as a matter of law that the evidence fails to charge the defendant with negligence, or that the evidence makes out one or both of the affirmative defenses set up in the answer. There is no evidence whatever to sustain the charge that the defendant failed to maintain a lookout as the train in question approached the place where plaintiff was working. All the evidence is to the contrary.

The defendant's witnesses testify that the whistle was blown one or more times as the train approached plaintiff, and the defendant contends that no inference to the contrary is to be drawn from plaintiff's evidence. Plaintiff testified by the aid of an interpreter, and his testimony therefore appears in the record in the third person. He testifies in part as follows:

"Q. Was any warning given of the approach of that train A. No, sir; he heard no warning at all; the first train that went by, that light engine, blew a whistle, and when he heard the whistle blown he just got away; but this second one, the only thing he remembers, he got struck by this train and fell down, and that is all he can remember, and he don't remember anything else. Q. Did you see any part of the train that struck you? [87 Or. 223] A. No, sir; he didn't see nothing at all. Q. Is your hearing good? A. Yes, sir. Q. Can you hear a
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3 practice notes
  • Brundage v. Southern P. Co.
    • United States
    • Supreme Court of Oregon
    • 10 Septiembre 1918
    ...available to the defendant. Jacobs v. Southern Railway Co., 241 U.S. 229, 36 S.Ct. 588, 60 L.Ed. 970; Morata v. Oregon-Wash. R. & N. Co., 87 Or. 219, 225, 170 P. 291. The answer denies that the defendant was negligent, and then pleads contributory negligence and assumption of risk. The plai......
  • Cheffings v. Hines
    • United States
    • Supreme Court of Oregon
    • 27 Abril 1922
    ...is available to the defendant. Jacobs v. Southern Ry. Co., 241 U.S. 229, 60 L.Ed. 204, 36 S.Ct. 588; Morata v. Oregon-Wash. R. & N. Co., 87 Or. 219, 225, 170 P. 291. * * * Framhein [the decedent] assumed all the risks that were ordinarily incident to his employment and also [104 Or. 93] ext......
  • Fargo v. Dickover
    • United States
    • Supreme Court of Oregon
    • 22 Enero 1918
    ...as overruling these cases. The case of Jamieson v. Potts will be followed whenever a similar state of facts shall arise, but we still [87 Or. 219] hold that section 16, L. O. L., is without application to a cause of action arising in another state between nonresidents of Oregon. The circuit......
3 cases
  • Brundage v. Southern P. Co.
    • United States
    • Supreme Court of Oregon
    • 10 Septiembre 1918
    ...available to the defendant. Jacobs v. Southern Railway Co., 241 U.S. 229, 36 S.Ct. 588, 60 L.Ed. 970; Morata v. Oregon-Wash. R. & N. Co., 87 Or. 219, 225, 170 P. 291. The answer denies that the defendant was negligent, and then pleads contributory negligence and assumption of risk. The plai......
  • Cheffings v. Hines
    • United States
    • Supreme Court of Oregon
    • 27 Abril 1922
    ...is available to the defendant. Jacobs v. Southern Ry. Co., 241 U.S. 229, 60 L.Ed. 204, 36 S.Ct. 588; Morata v. Oregon-Wash. R. & N. Co., 87 Or. 219, 225, 170 P. 291. * * * Framhein [the decedent] assumed all the risks that were ordinarily incident to his employment and also [104 Or. 93] ext......
  • Fargo v. Dickover
    • United States
    • Supreme Court of Oregon
    • 22 Enero 1918
    ...as overruling these cases. The case of Jamieson v. Potts will be followed whenever a similar state of facts shall arise, but we still [87 Or. 219] hold that section 16, L. O. L., is without application to a cause of action arising in another state between nonresidents of Oregon. The circuit......

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