Rostad v. Portland Ry., Light & Power Co.

• Decision Date: 11 October 1921
• Citation: 101 Or. 569,201 P. 184
• Parties: ROSTAD v. PORTLAND RY., LIGHT & POWER CO.
• Court: Oregon Supreme Court

201 P. 184

101 Or. 569

ROSTAD v. PORTLAND RY., LIGHT & POWER CO.

Supreme Court of Oregon

October 11, 1921

Department 1.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Florence Rostad, a minor, by Celia Rostad, her guardian ad litem, against the Portland Railway, Light & Power Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

The defendant admittedly operates a street railway system in the city of Portland, part of which is located on East Fiftieth street at its intersection with Twenty-Ninth avenue. The plaintiff sues for damages for injuries which she claims to have sustained while boarding defendant's cars at that place when and where they had been stopped for the reception of passengers.

The charging part of the complaint is as follows:

"That on or about the 30th day of March, 1920, defendant had a train of cars stationed46 at said Twenty-Ninth avenue and East Fiftieth street, and was taking on a number of passengers, and while plaintiff was boarding one of said cars, defendant carelessly and negligently started the same, and as a direct and proximate result of said negligent act of defendant, plaintiff was thrown under the wheels of said car, injuring and bruising her body and injuring and bruising the ligaments and tendons of her right ankle and causing the loss of her left leg and left arm, and fracturing her skull; that the shock and jar incident to, and in connection with, said injuries, has rendered plaintiff extremely nervous; that all of said injuries have, and will continue for all time to come caused plaintiff to suffer great physical pain and mental anguish, and that said injuries are permanent and to plaintiff's damage in the sum of $100,000."

This allegation is traversed by the answer, with the exception that the defendant admits the plaintiff met with an accident on the day named.

The new matter in the answer charges contributory negligence on the part of the plaintiff in that she attempted to board a moving train after passengers had been taken on the same and the train had resumed its journey. This is traversed by the reply.

The plaintiff had judgment, and the defendant appeals.

C. R Peck, of Portland (Griffith, Leiter & Allen and F. J Lonergan, all of Portland, on the brief), for appellant.

Henry E. McGinn and W. E. Farrell, both of Portland (Henry E McGinn and Davis & Farrell, all of Portland, on the brief) for respondent.

BURNETT, C.J. (after stating the facts as above).

The errors assigned which have been submitted in argument are: First, that the court overruled the defendant's motion for nonsuit, which was based upon the proposition that the complaint fails to state a cause of action and that there was no evidence offered disclosing any actionable negligence on the part of the defendant proximately causing the accident complained of. The second contention of the defendant is based on misconduct of counsel for the plaintiff in arguing the case to the jury, and the ruling of the court thereupon. A third complaint about the rulings of the trial court is predicated upon the following instruction given to the jury:

"Now, gentlemen of the jury, you have heard all the evidence, and, as stated to you, you will analyze the evidence, you will bring to your assistance your experience as men of affairs, and endeavor to ascertain where the truth is in this controversy. In case you should arrive at a verdict or find in favor of the plaintiff, it will then be your duty to approach the question of damages."

Finally, it is claimed that the court was wrong in giving the following instruction:

"If you find for the plaintiff in this case, you will assess an award to her by your verdict such sum of money as will fairly, justly, and fully compensate her for the injury which you will find from the evidence she has sustained, for the physical pain and mental anguish, if any, she has endured, or will in the future be obliged to endure, all as a direct, natural, and proximate result of the injury, not exceeding the amount demanded in the complaint."

As to the sufficiency of the complaint, the contention is that merely starting the car, although it is said to have been done carelessly and negligently, does not show facts sufficient to charge the defendant. The argument is that starting a car is one of the commonest acts in the management of a street railway system, innocent in itself, and that it is a mere conclusion to say that it was done negligently. Taking the whole language of the allegation together, however, we learn that this happened while the plaintiff was boarding one of the cars, and further that--

"As a direct and proximate result of said negligent act of defendant, plaintiff was thrown under the wheels of said car."

This allegation was not attacked by demurrer, nor even yet by a motion for a new trial. It is held in Bobbitt v. St. Louis United Rys. Co., 169 Mo.App. 424, 153 S.W. 70, that an allegation was sufficient which stated that--

The defendant "negligently, suddenly and violently started said car, * * * thereby causing plaintiff to be jerked, jarred and thrown from said car to the street."

And in Galveston, etc., R. R. Co. v. Thornsberry (Tex.) 17 S.W. 521, it was held not necessary to allege a danger to the plaintiff and the defendant's knowledge thereof, if facts are stated from which that conclusion may be drawn. Also, in Chicago City Ry. Co. v. Morse, 98 Ill.App. 662, the principle was enunciated that the happening of an accident on account of the management of a car under the control of the defendant raised a presumption of negligence. In other words, a case is here presented in which an appliance under the control and management of the defendant inflicts an injury upon the plaintiff. Where the appliance is properly operated, the ordinary result is the safety of the passenger, and hence when an accident occurs, it is sufficient to go to the jury as tending to show the fault of the one in charge of the appliance.

But it is contended that there is nothing to show that the plaintiff was a passenger. Indeed, it is not so directly said in the complaint, but after verdict we may deduce from the facts stated the conclusion that the plaintiff was a passenger. Confessedly the defendant was operating a street railway. The allegation was that it had a train of cars stationed at a certain point and was taking on passengers. This constitutes an offer, deducible from circumstances, of course, that the defendant would take as passengers all those who accepted the invitation. And it was also said that the plaintiff was "boarding one of said street cars." This is a statement of an act on the part of the plaintiff from which may be drawn the conclusion that she had accepted the offer of the defendant, raising the contractual relation of carrier and passenger. The testimony presented on behalf of the plaintiff was that she ran down the street and grasped the handhold at the entrance of the car. Some witnesses say she was in the act of putting her foot on the step, while others say that she actually did so. In Duchemin v. Boston Elevated Ry. Co., 186 Mass. 353, 71 N.E. 780, 66 L. R. A. 980, 104 Am. St. Rep. 580, 1 Ann. Cas. 603, it was held that going towards a car, intending to board the same, does not make one a passenger, but when the car is stopped to receive passengers "any person actually taking hold of the car and beginning to enter it is a passenger." This is the doctrine taught by such authorities as Indianapolis, etc., Rapid Transit Co. v. Walsh, 45 Ind.App. 42, 90 N.E. 138.

The question as to the sufficiency of the complaint is very close. For instance, it is not directly stated that the defendant was a common carrier or engaged in the transportation of passengers, or that the plaintiff was a passenger. Indeed, it is said in Raming v. Metropolitan Street Ry. Co., 157 Mo. 477, 57 S.W. 268, that an allegation that the plaintiff boarded a car with the intention of becoming a passenger is not equivalent to the statement that he was a passenger. And again, it was said in Birmingham Ry. & Electric Co. v. Mason, 137 Ala. 342, 34 So. 207, that an allegation to the effect that "while plaintiff was engaged in or about becoming a passenger on said car" did not show that the plaintiff was a passenger. After verdict, however, the case may be set down as a defective statement of a good cause of action.

In his argument to the jury, one of plaintiff's counsel charged that the surgeons employed by the defendant had neglected the plaintiff and that they had cut off her leg and her arm and did not do it properly. At this juncture, counsel for the defendant objected to the remarks of counsel, on the ground that there was no issue on that point, and that there was no charge against the company holding it responsible for the malpractice of its surgeons. The court sustained the objection and directed the jury not to consider the statement, whereupon the defendant saved an exception to the ruling of the court. No motion was made to set aside the verdict or to withdraw the case from the jury and award a new trial. The court made an appropriate ruling on the defendant's objection. If the defendant would seek a more drastic remedy than the mere withdrawal of the remarks from the jury with an instruction to disregard them, he should have moved the court for additional relief, such as dismissing the jury and ordering a retrial. The court correctly disposed of the objection, and if anything more was requisite or proper to be done, the court of original jurisdiction should have had an opportunity of doing it. In other words, as an appellate tribunal we cannot award any relief which was not asked for in the circuit court, and which was...