Morrison v. Pacific Northwest Public Service Co.

Decision Date06 March 1934
Citation146 Or. 225,30 P.2d 344
CourtOregon Supreme Court

Department No. 2.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

Action by Earl Morrison against the Pacific Northwest Public Service Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with instruction.

Cassius R. Peck, of Portland (Griffith, Peck & Coke, of Portland, on the brief), for appellant.

William P. Lord, of Portland (Lord, Moulton & Krause, of Portland, on the brief), for respondent.

BAILEY Justice.

This action was brought by the plaintiff to recover damages from the defendant for injuries suffered by plaintiff, a passenger on defendant's street car, while alighting therefrom caused by plaintiff's slipping on some foreign substance on the floor of the front vestibule of the car. From a judgment in favor of the plaintiff, the defendant appeals.

Defendant assigns as error the denial by the court of its motion for a directed verdict in favor of defendant on the ground that there was no evidence which tended "to support the proposition that the defendant or its employees had any notice or knowledge" of the presence of the foreign substance (presumably a fresh plum and hereinafter to be referred to as such) on the floor of the front vestibule of the street car prior to the accident, or that it had been there a sufficient length of time for defendant's employees to be charged with notice or knowledge of its presence.

The plaintiff, together with his companion, Foley, boarded the street car on August 5, 1931, between 10:30 and 11 p.m., at the ball park on Twenty-fourth and Vaughan streets in Portland, at the conclusion of a night baseball game. Plaintiff and Foley were about the last to board the car and there was then no accommodation for passengers except standing room in the front vestibule. The route of the car was from the ball park to Twenty-third street, thence south to Washington street, east to Nineteenth street, south to Morrison street, and east along Morrison street to its intersection with Thirteenth street, approximately one mile and a half from the ball park, where it stopped at the signal of Foley to allow him and plaintiff to leave. During the trip plaintiff and his companion had, as other passengers were discharged, managed to work their way inside the car, where they stood, hanging to the straps, until immediately prior to leaving the car. When the car came to a stop, plaintiff's companion left the car first and reached the street in safety, but as plaintiff was about to alight his foot came into contact with the fruit, lying on the floor within three or four inches of the outer edge of the platform, causing him to slip and fall upon his back or side striking either the edge of the platform or the top step with resulting injuries which are the basis of this action.

The car on which plaintiff was a passenger was being operated, at the time of the accident, by one man only, known as a motorman-conductor. Passengers entered and left the car at the right front, through a vestibule approximately six feet by three and one-half to four feet. The motorman was stationed in the center front of the vestibule, about three feet from the outer door. That door was kept closed, except when opened to admit or discharge passengers. Its opening automatically operated a switch controlling an electric globe above the door, lighting the steps and platform. At other times the vestibule was dark.

On the evening of the accident this particular car was being used as a "special" or "tripper" and at about 9:30 o'clock that evening the motorman had started to take it from the car barn some four blocks distant from the ball park. In preparing to take the car on its run the motorman was obliged to pass through the doors at both ends of the car several times. The defendant's cars are cleaned and swept at least every night. At the time the loading began at the ball park there was no foreign substance of any kind in the vestibule or interior of this car.

The plaintiff was one of the last passengers on, and at the time he boarded the car the floor of the front vestibule was free of any foreign substance, especially any plum. In this respect he testified:

"Q. Did you notice anything on the floor there when you got on? A. Nor, sir; I didn't.

"Q. And as you stepped on to the car, stepped into the car, the floor would be right in front of your eyes here, wouldn't it? A. Yes, sir.

"Q. Was there anything on the floor there when you got on? A. No, sir."

Several disinterested witnesses testified that there was no foreign substance on the floor of the vestibule when they boarded the car at the ball park. No witness saw the plum or knew of its presence on the floor until after plaintiff's mishap.

When the plum was picked upon from the floor after the accident, the floor was stained with the fresh juice of the fruit for an area estimated in testimony as "from five to seven inches across." Plaintiff's trousers, which were introduced in evidence, bore a stain on the right hip, of irregular shape, approximately four by five inches.

The plaintiff saw the fruit, in the motorman's hand, and it then looked to him "like crumpled-up banana peeling," "like an old banana peeling, one that was overripe." His companion testified that: "There was a soft substance, looked like a banana peeling, or could have been a plum." "It was black and slippery looking; it was soft looking." "It didn't look very fresh." "It was squashed out flat and *** it was a fairly good sized handful, a dark, soft-looking substance, some kind of fruit." "It was smashed out rather flat and as if somebody had stepped on it, evidently as he did."

The witness Anderson, a high school boy, in referring to the fruit said: "Well, there was a spot on the floor and a prune seed right in the center of it." "It was just a fresh spot." "It looked like it was just fresh. It wasn't dirty *** and the juice was still showing there. It hadn't soaked into the boards. The seed was wet."

The witness Carlson, another high school student, saw the fruit on the floor. He stated: "It looked to be a fresh fruit and it had been terribly mashed as he stepped on it." "It looked as though it was fresh fruit and had just recently been stepped on." "There was juice there," also a pit.

When the plaintiff was injured, the motorman helped him to the sidewalk and called a cab for him. Later the motorman returned to the street car, when he saw the fruit for the first time. In testifying he was not certain whether he had picked the plum up from the floor or some one else had and handed it to him. While the plum was in his hand, he and several passengers examined it. Asked to describe the condition of the fruit, he said: "Well, it was a fresh plum, with the seed still inside the plum, mashed down on that, on the seed, with the seed exposed." Relative to the moisture on, it, he remarked: "Well, as much moisture as you would expect from a fresh plum smashed like that after you had done it."

Another occurrence on this trip, according to the testimony of plaintiff and his companion, Foley, was the slipping or stumbling of a woman passenger while alighting from the street car about midway between the ball park and the place where plaintiff was injured. On direct examination the plaintiff, upon being asked whether or not anything unusual happened "in or around the front vestibule on the trip," replied:

"Well, there was a woman getting off,-I don't know-she was on Twenty-third street, I couldn't say just where. I think it was some place around Glisan street-and as she got off she either slipped or fell, or something, but she didnt' seem to hurt herself or anything, and the motorman left his controls and asked her if she was hurt or anything and she says, 'No,' and went on. ***

"Well, I just noticed that she slipped off of the car, or stumbled-I don't know which she done."

On cross-examination the following testimony was given by the plaintiff:

"Q. *** Now, do you say she slipped, or stumbled? Do you know what she did up there? A. I don't know whether she slipped or stumbled. ***

"Q. Did you see what she slipped on? A. No, sir, I didn't notice. I thought she just go on-maybe on account of high heels or something, maybe it was on account of that, I didn't pay much attention to it. She wasn't hurt or anything. ***

"Q. Well, then you don't know whether she slipped on anything that was on the vestibule floor or not, do you? A. I really don't, for I didn't see her. What I mean, I seen her fall and she jumped up and run off. She wasn't hurt or nothing. ***

"Q. Now, you had just as good a chance to see whether there was anything on the floor at that time as the motorman did, didn't you? A. Yes, sir.

"Q. You didn't see anything on the floor? A. I didn't. No, sir."

The witness Foley, referring to this matter, testified as follows:

"Q. What, if anything, did you see occur on the street car before you went into the body of the car? A. There was a lady that stumbled or slipped, stumbled, and the motorman went over and asked her if she was hurt, and she just shook her head and walked on. ***

"Q. The car was full of people then, when the woman fell? A. Yes, sir.

"Q. And there were people standing here in the vestibule when the woman fell? A. It was all filled up. There wasn't room for any more. ***

"Q. Well, I am asking you, did you see anything on the platform? A. No, sir.

"Q. You had just as much chance to see anything that there was on the platform as the motorman, didn't you? A. Yes, I could, because he couldn't see there either.

"Q. He couldn't see there either? A. No; there was too many people there. ***

"Q. And...

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14 cases
  • Moorehead v. Tri-County Metro. Transp. Dist. of Or.
    • United States
    • Oregon Court of Appeals
    • August 19, 2015 the duty owed by a premises owner to remove ‘foreign substances' from floors open to the public.” See Morrison v. Pacific Nw. Pub. Ser. Co., 146 Or. 225, 30 P.2d 344 (1934) (considering whether, in a case involving a slip and fall on a plum on the floor of a train, the transportation com......
  • Picou v. Kansas City Public Service Co.
    • United States
    • Kansas Supreme Court
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    ... ... determination of the one under consideration ... Morrison ... v. Pacific Northwest Public Service Co., 146 Or. 725, 30 ... P.2d 344, 345, was an action ... ...
  • Waller v. N.P. Ter. Co. of Oregon
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    • Oregon Supreme Court
    • February 26, 1946
    ...147 Or. 55, 31 P. (2d) 650, (fruit or vegetable on sidewalk in front of defendant's fruit stand); Morrison v. Pacific Northwest Public Service Co., 146 Or. 225, 30 P. (2d) 344, (fresh plum on floor of vestibule of street car); DeMars v. Heathman, 132 Or. 609, 286 P. 144, (grease spot on sta......
  • Briggs v. John Yeon Co.
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    • February 25, 1942
    ...apron was splotched with oil. The cases of Gardner v. Regal Fruit Company, 147 Or. 55, 31 P. (2d) 650; Morrison v. Pacific Northwest Public Service Co., 146 Or. 225, 30 P. (2d) 344; De Mars v. Heathman, 132 Or. 609, 286 P. 144, are readily distinguishable for the reason that in them proof w......
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