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

• Decision Date: 31 January 1922
• Citation: 103 Or. 68,204 P. 147
• Parties: WALLACE v. PORTLAND RY., LIGHT & POWER CO.
• Court: Oregon Supreme Court

204 P. 147

103 Or. 68

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

Supreme Court of Oregon

January 31, 1922

Department 1.

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Action by Selma L. Wallace against the Portland Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This is an action for damages for injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant's servants in the management and operation of one of defendant's street cars. The cause was before this court on a previous appeal, and is reported in 88 Or. 219 159 P. 974, 170 P. 283. Upon a retrial there was a verdict with judgment for plaintiff, from which the defendant appeals.

The complaint contains the following allegations as to the negligence of defendant:

"That on, to wit, May 8, 1915, in the city of Portland, Multnomah county, Oregon, said plaintiff became a passenger upon one of the street cars of defendant, and paid to defendant its regular and agreed price for her transportation thereon that the regular route of said street car so engaged in carrying plaintiff required said street car to proceed in the said city of Portland southwardly on Eleventh street between Harrison and Hall streets, and to turn at the corner of said Eleventh and Hall streets and proceed westwardly on said Hall street; that it was the duty of said defendant to stop its street cars upon request or signal of passengers at street crossings or street turnings to permit such passengers to alight, when signaled by said passengers to do so prior to reaching a street crossing or street turning; that at the time herein stated, when the said street car of defendant, in which plaintiff was a passenger, was going southwardly on said Eleventh street and was between said Harrison and Hall streets, plaintiff gave a signal to said defendant and its servants and agents that she desired said street car to stop at the corner of Hall and Eleventh streets to permit her to get off from said car, and that it was the duty of said defendant, its servants and agents, to stop said street car at said corner and to permit plaintiff safely to get off from said car; that in compliance with plaintiff's signal or request defendant did stop its said street car at the corner of Hall and Eleventh streets, and plaintiff was about to descend from said street car to the ground; but that, before plaintiff could step from said street car to the ground and leave said street car, defendant, by its servants and agents, carelessly, recklessly, and negligently, and without due regard for the safety of plaintiff, started or caused to be started the said street car suddenly and with a jerk, and thereby precipitated and violently threw to the ground the said plaintiff, injuring her as hereinafter set forth."

The answer consisted of a general denial and a further defense as follows:

"That on or about the 8th day of May, 1915, between the hours of 1 and 2 o'clock p.m. on said day, one of defendant's street cars was being lawfully and carefully operated in a southerly direction on Eleventh street, and just as the same was being brought to a stop at the intersection of Eleventh street with Hall street in said city, for the purpose of allowing such passengers as desired to alight therefrom, the plaintiff suddenly and unexpectedly, and carelessly, recklessly, and negligently, and before said car could be brought to a stop, walked or stepped or jumped from said car while the same was in motion, by reason of which negligent act on her part plaintiff fell to the surface of the street and received the injuries, if any, described in the complaint. That at the time and place when and where the plaintiff left said car, while the same was in motion, she knew, or by the exercise of due care and caution for her own safety should have known, that it was dangerous for her to leave said car while the same was moving, as aforesaid; but, notwithstanding, she failed to exercise any care or precaution as to the manner in which she left said car, and walked or jumped or stepped from the same as aforesaid."

This matter was denied by the reply. At the conclusion of the trial, defendant's counsel requested the following instructions upon the subject of contributory negligence, which were refused, and exceptions duly saved; nor was any instruction equivalent thereto given:

"You should return a verdict in favor of the defendant in this action, unless you are satisfied from a preponderance of the evidence that the plaintiff has been injured by reason of the negligence of the defendant, as alleged in plaintiff's complaint, and without any fault or contributory negligence upon her part."

"The particular negligence alleged in plaintiff's complaint, and the only negligence as to the defendant which you have a right to consider, is that after the defendant's car had been brought to a stop at plaintiff's request, to permit her to alight, and while she was in the act of leaving the same, the defendant negligently and without notice or warning to plaintiff, suddenly and violently started the car forward along the track, thereby throwing plaintiff. This is the only negligence alleged in the complaint, and I therefore instruct you that you cannot return a verdict in favor of the plaintiff unless you find from a preponderance of the evidence that the defendant was negligent in the respect charged, and that defendant's negligence in that respect, without any fault or contributory negligence upon the part of the plaintiff, caused the accident."

"If you find from the evidence that, in alighting from the defendant's car at the time and place of this accident, the plaintiff failed to exercise ordinary and reasonable care for her own safety, and that her own negligence in any respect contributed in any degree to the accident which happened, then your verdict should be for the defendant, even though you may also believe from the evidence that the defendant was negligent."

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

Hamilton Johnstone, of Portland (Asher & Johnstone, of Portland, on the brief), for respondent.

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

The pivotal question presented on this appeal is this: Where the complaint charges that an injury was produced by the negligent act or omission of the defendant's employés, and the answer denies both the fact of the injury and the negligence of said employés, and alleges that if any injury occurred it was caused by the negligent act of the plaintiff in attempting to alight from the car while in motion, is the defendant entitled to an instruction based upon the theory of contributory negligence of the plaintiff? While the question seems to be settled in this state by the decisions heretofore rendered by this court, which will hereinafter be cited, it is not inappropriate here to consider the decisions of other jurisdictions and the general logic of the law, in order to show that these holdings enunciated by justices of this court who have since passed to the great beyond are supported both by logic and the most enlightened precedent.

The history of the development of the law on these subjects discloses a great variance of judicial opinion. In the earlier cases, and in some instances until the present, it has been held that the burden of pleading want of contributory negligence is upon the plaintiff. Beers v. Housatonuc R. Co., 19 Conn. 566; Augusta So. Ry. Co. v. McDade, 105 Ga. 134, 31 S.E. 420; Holt v. Spokane & P. Ry. Co., 4 Idaho, 443, 40 P. 56; Chicago, B. & Q. R. Co. v. Levy, 160 Ill. 385, 43 N.E. 357; Cincinnati, etc., Ry. Co. v. Grames, 8 Ind.App. 112, 34 N.E. 613, 37 N.E. 421; Lamport v. Lake Shore & M.S.R. Co., 142 Ind. 269, 41 N.E. 586; Rusch v. Davenport, 6 Iowa, 443. There are similar holdings in Louisiana, Maine, Massachusetts, Michigan, New York, Texas, and Vermont. In some of these states this rule has been changed by statute and in others construed away by later decisions. In states holding to this doctrine, it naturally follows that a general denial was sufficient to admit the defense of contributory negligence.

A large majority of the other states, including Oregon, hold generally that the defense of contributory negligence must be pleaded and proved by the preponderance of evidence, in order to be available. Indeed, the later holdings in the courts of some of the states which originally enunciated a contrary doctrine are to that effect now, notably in Indiana, where a contrary rule has been established by statute, and in Louisiana, as shown by Pollich v Sellars, 42 La.Ann. 623, 7 So. 786. So that it may...