Palmer v. Willamette Valley Southern Ry. Co.

• Decision Date: 09 April 1918
• Citation: 88 Or. 322,171 P. 1169
• Parties: PALMER v. WILLAMETTE VALLEY SOUTHERN RY. CO.
• Court: Oregon Supreme Court

171 P. 1169

88 Or. 322

PALMER v. WILLAMETTE VALLEY SOUTHERN RY. CO.

Supreme Court of Oregon

April 9, 1918

Department 1.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by Lionel C. Palmer, a minor, by Charles Palmer, as guardian ad litem, against the Willamette Valley Southern Railway Company. Judgment of nonsuit, and plaintiff appeals. Affirmed.

Acting through his guardian ad litem, Lionel C. Palmer, a minor about 16 years of age, sued the defendant for damages resulting from a serious injury received by him on July 11 1916, while attempting to board a moving train. The plaintiff was nonsuited, and then appealed.

The Willamette Valley Southern Railway Company owns and operates an electric railway line between Oregon City and Mt. Angel. The line runs through the town of Molalla, where a depot is maintained, and continues in a southwesterly direction to and past a station called Ogle, located about 2 1/2 miles from Molalla. The plaintiff lived with his parents near Ogle, but he attended high school in Molalla, and when school closed he worked in a garage conducted by O. K. Cole in Molalla. He generally traveled on the electric train when going from his home to Molalla or when returning to his home after school was out or at the end of his day's work. He had boarded the train "half a dozen times or more" at Ogle while the train was in motion, and he had alighted from the train "many times without it stopping." On these occasions, when he boarded or alighted from a moving car, the train was going between 2 and 4 miles an hour. He "felt it was all right to get on the cars when they were moving * * * when the conductor told me it was all right." However the plaintiff had boarded the train while in motion "once or twice" before the conductor told him "it was all right." On one occasion when the train was approaching Ogle the conductor asked the plaintiff whether he could "get off without stopping." The plaintiff answered, "I guess so;" and the conductor said, "All right then;" and so the plaintiff "stepped off." However, before the plaintiff stepped off the conductor said: "When you step off be sure to step with the train. It is safe to step off the train if you step the way the train is going, but if you step away from it, and step out, you are more apt to get hurt. Step with it and it is all right." The plaintiff stated that he thought on the different occasions when he boarded or alighted from the train while in motion "it was going between 2 and 4 miles an hour"; and he also testified that on each of such occasions the train was in charge of the same motorman who had charge of it on July 11th, and that although he never knew the name of the motorman, he "was acquainted with him by sight." The motorman had seen the plaintiff going to and from school, when he walked, and the motorman "always waved his hand when he passed."

The railway track proceeds in a southerly direction past the depot in Molalla, and crosses a county road which runs east and west. As it leaves the depot, the track describes a slight curve, and does not again straighten out into a tangent until after crossing the county road. The travel along the county road follows the center line, and a sidewalk about 5 feet in width is laid along the north line of the right of way of the highway. The sidewalk crosses a ditch or trench which adjoins and parallels the track for a distance of probably 20 or 30 feet. It is 135 feet from the depot to the sidewalk, and 20 feet from the sidewalk to the center of the highway. Edwin Woodwarth testified that on one occasion a south-bound train stopped at the road crossing to permit him and a companion to board the train. The plaintiff's father said that he had seen the train stop two different times "for people to get off and on." The plaintiff testified that he had seen the train stop at the crossing "not less than three times" and take on passengers.

A few minutes after 8 p. m. on June 11, 1916, the plaintiff went to the depot at Molalla with the intention of riding as a passenger on the train to Ogle. The south-bound train was about half an hour late. The plaintiff did not purchase a ticket because there was no agent at the depot, but he had money with which to pay his fare. He had been in charge of the garage that day during the absence of Cole, his employer and had taken in about $10. The plaintiff wanted to deliver this money to his employer, and after arriving at the depot the plaintiff went to the county road and watched for Cole. He saw Cole coming in an automobile along the road from the west toward the railroad crossing, and upon looking north "down the track" saw the train approaching the depot. The plaintiff testified that Cole and the train--

"were both coming at the same rate of speed and about the same distance from the station, and so I waved to him. I waited until he got close, and signaled to him to stop. * * * He just came over the track when the car came, and I went back and the car was just coming in. The brakeman had not stepped down yet, but when the car stopped he stepped down, and I went up to him and tapped him on the shoulder, and * * * he looked around, and I said, 'Will you wait for me just a minute?' 'Yes,' he said, 'If you don't make your minute too long.' So I went back to the county road * * * ran there. I had the money in my hand, and handed it to Mr. Cole, and told him I would keep ten cents to pay my way, and then I whirled, and * * * when I turned and started back they (the cars) were moving and coming towards me."

When he turned around the train was "over half way" to the sidewalk, and he stated that he "went fast" back to the sidewalk, waved his hand at the motorman as a signal that he intended to board, and when he reached the sidewalk he saw that the front of the train was "eight, ten, or probably fifteen feet" from him, and so he stopped on the sidewalk. Referring to the motorman, the plaintiff testified "I saw him when he came up close by me. He nodded at me as though he knew me." When the plaintiff stopped on the sidewalk the train was "going three, four, or probably five miles an hour at the fastest." The plaintiff had a small dinner pail on one arm, and when the rear of the first car came to him the plaintiff "took hold of the upright handles" on each side of the door, and just as he "took hold" the train gave "an awful jerk, twice as hard as it had ever jerked before," breaking his hold and throwing him between the cars. He explained that he did not get his feet on the steps when he "took hold, * * * because it was going faster than I expected it to be going, and it threw me under." Referring to the speed of the train, the plaintiff said as the front end of the first car passed him the train was "going the same rate as it was coming" when he stopped on the sidewalk; that he did not detect any "slowing up of the speed" when the front end of the first car passed him; and that it did not appear to be gaining in speed until, as he expressed it, "Just as soon as I took hold it took a jerk and I knew it was gaining speed." When speaking of the speed at which the train was usually run from the depot to the county road, two witnesses said it was "comparatively slow," another witness described it as "rather slow," and the plaintiff estimated it at "four or five miles per hour." The plaintiff says that when the front end of the first car passed him the train was going at the rate of 4 or 5 miles per hour; he alleges in his complaint that at and immediately prior to the time he attempted to board the train the speed of the train was suddenly increased, "so that said cars were moving at a dangerous rate of speed, of 8 or 10 miles per hour"; and he testified that at the time he attempted to board the car it was "then running from 8 to 10 miles per hour," although he thought when he "took hold" that the train was going at the same rate of speed as it was when the "front end passed him."

Leroy Lomax, of Portland, for appellant. O. D. Eby, of Oregon City, Frank J. Lonergan, of Portland, on the brief), for respondent.

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

The plaintiff must necessarily fail unless the defendant violated some duty owing to him and thus caused the injury. The plaintiff insists that he occupied the position of a passenger, and that it was a question for the jury to determine whether his attempt to board the train was an act of negligence causing or contributing to the injury. The defendant contends that the plaintiff was properly nonsuited because (1) he did not possess the rights of a passenger when he attempted to board the train; and (2) even though he be treated as a passenger, nevertheless his attempt to board a moving train was negligence per se.

Stating the rule in general terms, it may be said that a person places himself in the position of an intending passenger when he enters upon a carrier's premises with the bona fide intention of becoming a passenger, and awaits the arrival of his train at a proper place, in a proper manner, and within a reasonable time, before the arrival of such train. Du Bose v. Atlantic Coast Line R. R. Co., 81 S.C. 271, 62 S.E. 255; Abbot v. Railroad Co., 46 Or. 549, 561, 80 P. 1012, 1 L. R....