Scott v. Astoria R. Co.

• Decision Date: 25 May 1903
• Citation: 43 Or. 26,72 P. 594
• Parties: SCOTT v. ASTORIA R. CO. [*]
• Court: Oregon Supreme Court

72 P. 594

43 Or. 26

SCOTT v. ASTORIA R. CO. ^[*]

Supreme Court of Oregon

May 25, 1903

Appeal from Circuit Court, Clatsop County; T.A. McBride, Judge.

Action by Ella Scott, as administratrix of the estate of W.M. Scott deceased, against the Astoria Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action by Ella Scott, as administratrix of the estate of W.M. Scott, deceased, to recover damages for his death, which occurred January 12, 1901, while in the defendant's employ as a locomotive engineer, and is alleged to have been caused by its negligence in constructing its railroad too near a hillside, without adopting any means to prevent a slide, and in not properly watching its track, so as to discover the danger therefrom, and to warn the deceased thereof. The answer, after denying the material allegations of the complaint, alleges that the day the accident occurred was unusually stormy, the rainfall along the line of the defendant's railway being the heaviest of the season that for more than two years prior thereto Scott had been in its employ as such engineer, was acquainted with the road and the construction thereof, and knew the nature, formation, and character of the country through which it extended, and the effect of rains thereon; that at the point where he lost his life no slide had ever occurred, but the road was necessarily constructed through a mountainous region, where slides frequently happen in the rainy season, against which it is impossible to guard, which fact he well knew; that, during all the time he was so employed, defendant kept a competent track walker to examine the line before every train passed over it, who immediately preceded the train operated by Scott, examined the track, and found no obstruction thereon that it was Scott's duty to exercise great care in running the engine, and on the night of January 12, 1901, he was informed that slides might possibly occur, in consequence of the heavy rainfall, and notified to proceed with caution but, not heeding the direction, he ran the engine at a higher rate of speed than usual, and in such a careless manner that he could not stop it in time to avoid the disaster. For a second defense, it is alleged that Scott, knowing the character of the road and the effect of heavy rains thereon, assumed the danger incident thereto. The reply having denied the material allegations of new matter in the answer, a trial was had, resulting in a judgment for plaintiff in the sum of $4,000, and the defendant appeals.

C.W. Fulton, for appellant.

A.S. Bennett, for respondent.

MOORE C.J. (after stating the facts).

It is contended by defendant's counsel that the court erred in instructing the jury as follows: "The railroad company has a right to locate its road, in a general way, upon any route it may deem fit, but, in making a specific location at any particular point, it should use due care to provide a safe place for its employés to work; and if it construct its road in a place that is manifestly dangerous, when, with reasonable care and slight expense, it could just as well be constructed in a perfectly safe place, a few feet to one side, that may be negligence, which you would have a right to consider in determining the degree of diligence and care defendant should have exercised in watching, inspecting, and protecting its road, and its employés thereon." To render the application of this part of the charge intelligible, a brief statement of the facts involved is deemed essential. The bill of exceptions discloses that plaintiff introduced testimony tending to show that the defendant constructed a railway from Goble to Astoria, and operates trains thereon, and also over the line of the Northern Pacific Railway Company from Goble to Portland. The defendant's road near Bugby, for about half a mile, is built along the south bank of the Columbia river, about 90 feet from a cliff of basaltic rock, the disintegration of which, and the débris carried over the precipice by surface water, formed a slope of about 45 degrees, extending from the face of the crag to a line parallel with, and about 6 feet from, the track. This incline was originally covered with brush and trees, which were cut down when the railroad was built, and their stumps and roots had rotted. In the rainy season, considerable water flows over the precipice at this point; but, there being no ditch to carry it off, the earth and débris composing the acclivity become saturated therewith. Slides have occurred in the immediate vicinity prior and subsequent to the building of the road, but the defendant made no attempt to carry away the material of the slope, or to build retaining walls. The track walker, whose duty it was to inspect the line near Bugby, was obliged to examine a section of 8 miles, and, to avoid being run down, was compelled to start on his velocipede 30 minutes before train time, according to schedule; and as the train was half an hour late on the evening of January 12, 1901, no watchman had passed over the track at that point within an hour of the train's arrival. Some time after the track walker passed Bugby, a slide occurred, the rocks and earth lodging upon the track; and at about 10 o'clock that night the locomotive driven by Scott, and drawing a passenger train, ran into the obstruction, throwing the engine into the river, whereby he was drowned.

It is argued by defendant's counsel that the court, in the instruction complained of, told the jury, in effect, that if the defendant could have located its road "in a perfectly safe place," but neglected to do so, a higher degree of care in operating it was demanded than in case they should find that such place could not have been discovered "a few feet to one side"; that, though the defendant might select the location of its road, it exercised the right to do so at its peril, and if a safer route than that chosen could have been discovered, but was not found, a different measure of care was required "in watching, inspecting, and protecting its road and employés"; that the degree of care imposed upon the defendant depended upon the wisdom exercised in locating its road; and that a jury, and not a railroad company, are the judges of where a line of railway shall be specifically located. Plaintiff's counsel maintain, however, that the exceptions taken to the instructions were general, and did not point out any particular part thereof of which the defendant complained, and that the charge should be considered in its entirety, and, when so construed, any seeming inconsistency therein is rendered harmless. In construing the language employed by courts in charging juries in this state, a very liberal policy has been pursued; the rule being that, in considering a single instruction, the entire charge must be viewed, and, unless it appears that the jury were or might have been misled, mere verbal inaccuracies will not be sufficient cause for reversal. Matlock v. Wheeler, 29 Or. 64, 40 P. 5, 43 P. 867; Smitson v. Southern P. Company, 37 Or. 74, 60 P. 907; Farmers' Bank v. Woodell, 38 Or. 294, 61 P. 837, 65 P. 520. The court, in other parts of its charge, correctly instructed the jury that it was incumbent upon the defendant to exercise only reasonable and ordinary care; saying in one instance: "It is sufficient to defeat the right of the plaintiff to recover in this case that you should find from the evidence that defendant exercised such care as is common and usual under like circumstances and conditions, under prudent management." We think that notwithstanding the charge, as a whole, correctly informed the jury of the degree of care required of the defendant in operating its road, the instruction complained of might have misled them, for it seems to assume that negligence could be predicated upon the defendant's original location of the road. So many elements are to be considered in locating a railway, as factors in its construction and operation, that its permanent establishment must necessarily be left to its builders. To shorten distance, to increase speed, and to cheapen the cost of transportation of passengers and freight, railroad companies must occasionally cut long tunnels, build high trestles, and erect massive bridges, which might possibly be avoided in many instances by pursuing more circuitous routes. The demands of commerce necessitate the construction of railways in the places and manner indicated, and their location can never become a question to be submitted to a jury, for, if they could find that a certain line should have been deflected a "few feet to one side" of that determined upon by a railway company, where would be the limit to their power? The question to be determined by the jury was whether the defendant had exercised the degree of care that the law enjoins, which is measured by the extent of danger incident to the building and operating of its road on the line selected, and not by considering whether a safer location might possibly have been made elsewhere. We think the instruction complained of is manifestly erroneous, and might have misled the jury, by permitting them to consider as negligence the location of the road in the particular place in which it was built, though the court, in other parts of its charge, correctly instructed them as to the degree of care which it was necessary for the defendant to exercise.

The remaining question, on this branch of the case, is whether the exception is sufficient to bring up for review the error relied upon. The bill of exceptions shows that, at the conclusion of the charge to the jury, defendant's counsel excepted to the part thereof hereinbefore quoted particularly setting out the language complained of. An exception to a charge is...