Skottowe v. Oregon S.L. & U.N. Ry. Co.

• Decision Date: 18 June 1892
• Citation: 30 P. 222,22 Or. 430
• Court: Oregon Supreme Court
• Parties: SKOTTOWE v. OREGON S.L. & U.N. RY. CO. MULLEN v. SAME.

30 P. 222

22 Or. 430

SKOTTOWE v. OREGON S.L. & U.N. RY. CO. MULLEN v. SAME.

Supreme Court of Oregon

June 18, 1892

Appeal from circuit court, Wasco county; W.L. BRADSHAW, Judge.

Action by Jane Skottowe against the Oregon Short Line & Utah Northern Railway Company, to recover for personal injuries. Plaintiff had judgment for $10,000. Also action by J.T Mullen, administrator of the estate of Nicholas J. Skottowe deceased, against the same defendant, to recover for the death of plaintiff's decedent. Plaintiff had judgment for $1,500. The two cases were heard together on defendant's appeals, and both affirmed.

W.W. Cotton, Zera Snow, and Wallace McCamant, for appellant.

Alfred S. Bennett, for respondents.

LORD, J.

These actions are brought, by Jane Skottowe in the one case, and by J.T. Mullen, as administrator of the estate of Nicholas Skottowe, in the other case, against the defendant, to recover damages resulting from a fall by Jane Skottowe and her deceased husband from an elevated way leading from The Dalles City to the defendant's boat landing; which fall caused serious injury to Jane Skottowe, and the death of her husband. The liability of the defendant is predicated on the ground that the defendant was negligent in failing to keep in repair the elevated way or bridge, from which the plaintiff and the deceased fell, and were injured, and in failing to provide such place with proper lights. The answer of defendant put in issue all the material allegations of the complaint, and further alleging that the elevated way or bridge causing the injury and death was not the property, or in the possession, or under the control, of the defendant and, as a separate defense, that the plaintiff and her deceased husband were guilty of contributory negligence. The facts are substantially these: The plaintiff and her deceased husband were citizens of Ireland, traveling in this country with the double purpose of visiting a son who resided in the state of Wyoming, and such places as would interest them or contribute to their pleasure. It would seem that they had secured a round-trip ticket from Portland to The Dalles, and return, and that they had come up to The Dalles, by railroad with the intention of returning to Portland by the river, on one of the boats of the defendant, for the purpose of obtaining a more complete view of the Columbia river scenery. The boats of the defendant were fitted up with staterooms and other adjuncts for the comfort and accommodation of its passengers. As the hour at which the defendant's boats were accustomed to leave in the morning was early,--7 o'clock,--the company, for its own advantage, and for the convenience of its passengers, allowed them to come on board of its boats at night, and to sleep there. For this accommodation the defendant charged and received a specified consideration, and by reason of it its passengers were saved from the necessity of arising at an inconvenient hour in the morning in order to reach the boat. The plaintiff and her husband reached The Dalles some time about the middle of the day, and during the afternoon went down to the wharf boat, as it would seem, for the purpose of acquainting themselves with the way to the boat's landing, and ascertaining what arrangements were necessary to be made to get on board of the boat. The agent of the defendant informed them at the office that they could come on board of the boat that night, as soon as it came in, and sleep there until morning, so that they would be on the boat at its hour of starting. Concluding to avail themselves of this accommodation, they returned up town, and after getting a meal at a restaurant, and walking and looking around until the time had come for the boat to arrive, they started down to its landing. It was after dark when the defendant's boat came in, but, owing to the fact that it had a barge in tow, it proceeded up the river, under slow bells, past its landing place, to a point on the river about opposite the place where the accident occurred, for the purpose of landing the barge, when it turned back to make its landing. Her lights were lit, and it was while some of these things were occurring that the accident happened. The landing place of the defendant's boat is some distance below the inhabited portion of The Dalles, and is reached by a long elevated incline and narrow roadway which passes over Mill creek by means of a bridge. One portion of this roadway, at the point where it leaves the inhabited portion of The Dalles, is occupied by the defendant's railroad tracks, and leads to its shops, while the other portion of it gradually inclines, and leads to its wharf or boat landing. These two ways, at the point where the injury occurred, are connected, and rest on the same timbers. The situation is difficult to describe, but it is shown on the photographic exhibits. These different ways were originally built by the Oregon Steam Navigation Company, the defendant's predecessor in interest, for the purposes specified, and since then have been constantly used as a means of access to and from its shops and the landing place of its boats. At different times the company has rebuilt and repaired this roadway, raised and changed it, and exercised various acts of control over it. The place where the accident occurred, and over which the elevated roadway or bridge crosses Mill creek, is a short distance below the last building in the inhabited portion of the city. The land under the bridge was doubtless a public street at the point of the accident, as it seems to have been platted as such, but the city has never opened it as a street, nor exercised any control or ownership over the elevated roadway or bridge.

"There was no evidence," the record says, "in the case tending to show that Dalles City, or any one except the railroad company, and its predecessors in interest, had exercised any control of the bridge at the place where the accident occurred, or had ever operated or repaired the same." The bridge is from 12 to 20 feet from the ground, which is of a rocky and uneven character, and along the bridge there has always been a "rail running," which, a short while before the accident, got loose and came off, and never was replaced until after the injury occurred.

The circumstances of the fall from the bridge are thus related by the plaintiff: "We had passed the town, and got to the way leading to the boat, it being then nearly dark. We suddenly fell down a height. The fall rendered me unconscious. I was aroused by my husband's calls for help. I became unconscious again, and then got conscious again, when the men came to carry me up from where I had fallen. Shortly before the accident we remarked to each other on the want of light. We were feeling our way cautiously along, immediately before the accident. My husband's calls for help at the place of the accident was the first thing I knew after the accident, while we were lying on the stones near the river." The injury to the husband of the plaintiff was of such a character as to cause his death a day or two afterwards. The injury to the plaintiff confined her to bed for many months, and, the evidence indicates, will render her subject perhaps to much suffering, and a cripple for the remainder of her life. From these facts and circumstances it seems evident that the plaintiff and her deceased husband, while passing over the bridge or elevated roadway, seeing the boat out in the river, which was lighted up, and supposing that they had reached the landing, walked through the opening occasioned by the want of railing, and were precipitated upon the rocks below.

Upon this state of facts, the most vital point of the contention for the defendant is that the duty of a passenger carrier to provide reasonably safe approaches to a landing place or station is confined only to the immediate vicinity of its landing or station, and to approaches on its own ground or right of way, and that, as the facts show that the land over which the bridge was constructed, and where the accident occurred, was a public street, the defendant was under no obligation to keep such bridge in repair, or properly lighted. There are other questions connected with this upon which error is alleged, and to which we shall advert at the proper time. There is, however, a preliminary question upon the evidence, to which an exception was taken that must be first disposed of. One Mr. Allen was called as a witness for the plaintiff, and testified that he was in the employ of the defendant, and engaged in carpenter work; that about two days after the accident he repaired the bridge, by replacing the missing railing. He was then asked the question, "Under whose direction?" To this question the defendant objected, as incompetent and immaterial; whereupon plaintiff's counsel stated in open court, and in the presence of the jury, that he did not offer the testimony for the purpose of showing negligence, but for the purpose of showing acts of ownership and control over the bridge, and the court ruled that the evidence should be received for that purpose, and that purpose only. The witness then answered that he was instructed by Mr. De Huff, the company's foreman or superintendent at the shops. It is conceded that this evidence is hardly sufficient to show that Mr. De Huff had authority from the railroad company to make the repair in question, but no proper means were taken to get rid of this aspect of it. As already disclosed, this evidence was offered for the purpose of showing that the bridge or place where the injury was received was under the control of the defendant. As applicable to this object, no objection is made, if the evidence shall be restricted exclusively to this purpose. It is not the fact that...