Rathbone v. Oregon R. Co.

• Decision Date: 16 December 1901
• Citation: 40 Or. 225,66 P. 909
• Parties: RATHBONE v. OREGON R. CO.
• Court: Oregon Supreme Court

66 P. 909

40 Or. 225

RATHBONE v. OREGON R. CO.

Supreme Court of Oregon

December 16, 1901

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr. Judge.

Action by Ella Rathbone, administratrix of the estate of Charles A Rathbone, deceased, against the Oregon Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

W.W Cotton, for appellant.

E.B Watson and Frank Schlegel, for respondent.

BEAN, C.J.

This is an action to recover damages for the death of Charles A Rathbone, alleged to have been caused by the negligence of the defendant. The facts are that on Sunday, June 13, 1897 Rathbone and his wife, at the invitation of one of defendant's section foremen, went with him and his family on a hand car from Rooster Rock to Corbett, a distance of about a mile and a half, to "get some cherries to can." Upon their return, while passing around a curve in the road, where the view is obstructed, a collision occurred between the hand car and one of defendant's trains going west, and Rathbone was killed. The evidence shows that when the train and hand car came in view of each other they were so near that neither could be stopped in time to avoid the collision, and no negligence is charged against the operators of the train on this account. The ground of negligence alleged, omitting some averments upon which there was no proof whatever, is, in substance, that the defendant's roadbed and track between the stations named had been so continuously used since their construction by people traveling on foot, bicycles, and hand cars, with the knowledge and permission of the company, that it was bound to exercise reasonable caution to avoid injuring persons so traveling thereon; that, in disregard of its duty in this respect, it carelessly and negligently ran an irregular train, composed of a locomotive with an observation and baggage car in front, around sharp curves and embankments, and against the hand car upon which the deceased was riding, at a high and dangerous rate of speed, without ringing the bell, sounding the whistle, or giving any notice of its approach, or taking any precaution whatever to discover whether there was any person on or near the track in front of such train. The testimony, however, does not show that people not connected with the railroad company had used the track at the place indicated in any way except by riding upon a hand car thereon, or that the track was used in this way by the public generally, but is to the effect that from Corbett east for some miles the defendant's roadbed is located along the Columbia river, at many places wholly occupying the space between the river and a high bluff which rises above it; that the country in the vicinity is very sparsely settled, and the means of communication between the different stations are very imperfect, except by the railway; that for some time prior to the accident, the defendant's section foremen, as an accommodation, had been accustomed to invite people living in the vicinity of the road to ride with them on hand cars, and had often used such cars to take their families and neighbors up and down the track on business and...