Watts v. Spokane, P. & S. Ry. Co.

• Decision Date: 02 April 1918
• Citation: 171 P. 901,88 Or. 192
• Parties: WATTS v. SPOKANE, P. & S. RY. CO. ET AL.
• Court: Oregon Supreme Court

171 P. 901

88 Or. 192

WATTS v. SPOKANE, P. & S. RY. CO. ET AL.

Supreme Court of Oregon

April 2, 1918

Department 2.

Appeal from Circuit Court, Columbia County; J. A. Eakin, Judge.

Action by T. C. Watts, substituted for John W. Patrick, deceased against the Spokane, Portland & Seattle Railway Company, a corporation, C. E. Chamberlain, and R. O. Burgess. Judgment for plaintiff, and defendants appeal. Affirmed in part, and reversed in part.

This is a personal injury case. The defendants appeal from a judgment rendered upon a verdict. The gist of the complaint as to the negligence is as follows: After the averments of the corporate and business character of the defendant company and that C. E. Chamberlain was conductor and R. O. Burgess brakeman on the train of the railroad company, the pleading states that on April 9, 1915, plaintiff, John W. Patrick, a man 74 years of age, purchased a ticket and was a passenger on defendant company's train from Rainier, Or., to Goble Or., where the train arrived at 8:37 p. m., about 15 minutes late; that in attempting to make up time the defendants negligently failed to allow the train to stop at Goble plaintiff's destination, a sufficient length of time to permit him safely to alight therefrom, and carelessly started the train while he was attempting to leave it; that plaintiff was enfeebled in powers of locomotion, infirm, and in a weakened condition, which was obvious and plainly visible from his appearance and which was well known to defendants Chamberlain and Burgess, or might have been known to them by the exercise of ordinary care and observation; that defendants carelessly and negligently failed and neglected to provide any platform, step, contrivance, means, or assistance to enable plaintiff safely to alight from the train; that when plaintiff was upon the platform of the car, which was rendered unsafe and dangerous by the premature starting of the train, defendant Burgess was on the platform of the adjoining car and was in a position to see the condition and danger of the position of plaintiff and with ordinary care and caution could have prevented the injury, but that he neglected to stop the train or do anything to prevent the injury; that when plaintiff, in attempting to leave the train, had reached the steps of the coach upon which he was riding, on account of the negligent starting and running of the train without giving him sufficient time to alight therefrom (here specifying the acts of negligence as above) he was forcibly and violently thrown from the train by its motion and jarring and was thereby seriously injured to his damage. By its answer the defendant company admits its incorporation; that plaintiff was a passenger on its train on the date alleged; and that while alighting therefrom at Goble he fell and sustained some injuries. It denies the other allegations of the complaint, and further alleges that plaintiff's own negligence caused or contributed to cause the accident. The separate answers of defendants Chamberlain and Burgess deny the main allegations of the complaint, and also allege contributory negligence. The replies controverted the new matter of the answers.

McCamant J., dissenting.

C. A. Hart, of Portland (Carey & Kerr, of Portland, on the brief), for appellant Ry. Co. G. C. Fulton, of Astoria (Oscar Furuset, of Portland, on the brief), for appellant Chamberlain. E. B. Tongue, of Hillsboro (Glen R. Metsker, of St. Helens, on the brief), for respondent.

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

When plaintiff had introduced his evidence and rested his case, counsel for defendants moved the court for a judgment of nonsuit. This motion was denied, and the refusal is assigned as error. At the close of all the testimony defendants' counsel requested a directed verdict in favor of defendants, which was disallowed, and such ruling is also assigned as error. These assignments raise the same question.

It is a well-established rule in this state that in the consideration of a motion for a nonsuit all the testimony on the part of plaintiff is to be regarded as true, together with every intendment and reasonable inference which can arise therefrom. Considering the same in this manner, if a difference of opinion may exist as to the conclusions of fact which may be drawn from the evidence, the case should be submitted to the jury to pass upon the issues. Article 7, § 3, Const.; Smitson v. S. P. Co., 37 Or. 74, 60 P. 907; Consor v. Andrew, 61 Or. 483, 123 P. 46; Domurat v. O. W. R. & N. Co., 66 Or. 135, 134 P. 313; Nelson v. St. Helens Timber Co., 66 Or. 570, 133 P. 1167, 135 P. 169; Sigel v. P. Ry., L. & P. Co., 67 Or. 285, 135 P. 866; Smith v. Badura, 70 Or. 58, 139 P. 107; Isaacson v. Beaver Logging Co., 73 Or. 28, 143 P. 938; Johnson v. P. Ry., L. & P. Co., 79 Or. 403, 410, 155 P. 375. It is the contention of counsel for the defendants Spokane, Portland & Seattle Railway Company and Burgess that, conceding there was evidence of negligence on the part of defendants in failing to stop the train a sufficient length of time for plaintiff to alight therefrom in safety, plaintiff was guilty of negligence in stepping from a place of safety off the car when it was in motion, and that such act on his part intervened between the negligent failure to stop the train a sufficient length of time at the station and the injury of plaintiff, and was the proximate cause of the hurt.

It is the contention of counsel for plaintiff that he fell or was thrown off the car, and that he did not alight therefrom when it was in motion. The evidence on the part of the plaintiff tended to support his contention and the averments of the complaint. There was a sharp dispute as to whether plaintiff jumped or fell. The evidence of defendants tended to support the position of the company. The testimony in the record tended to show that on the day of the occurrence complained of Mr. Patrick and two companions, William H. Wagner and John M. Lindsay, went from Goble, Or., to Kalama, Wash., to celebrate the anniversary of the surrender of Lee at Appomattox Courthouse. Returning in the evening they boarded the train at Rainier, and when it arrived near Goble the brakeman Burgess called that station, and just before the train came to a stop the three men raised up from their seats in the smoking car, which were about two-thirds the length of the car from the rear, and proceeded towards that end of the car. Mr. Lindsay was ahead, and had not reached the end of the car when it stopped. Mr. Wagner was right behind him. Before Lindsay got off, the car started. Wagner was next, and when he got off the train was going so fast it was difficult for him to keep his feet. Mr. Patrick was behind Wagner and he stepped down to the lower step of the car holding onto the "grabirons." The train ran the length of a car or a car and a half when he fell off. The rate of speed was about four miles an hour when the train had gone only a few feet. Wagner testified in substance to the facts above narrated, and that after he alighted he was looking at Patrick and that "it looked like he fell off." Mr. Lindsay also testified in effect as above stated. The testimony also indicates that the train stopped at Goble 10 or 12 seconds. It was dark at the time. The brakeman Burgess with a lantern in his hand assisted a woman with a baby to alight from the front part of the coach next to the smoker and two or three other men got off the train there. He then threw his stool up on the platform, signaled for the train to go ahead, and started up the steps of the smoker, and as Patrick fell he (the brakeman) pulled the bell cord and the train stopped. Ernest Archibald, a lad of 18 years, who with another boy was at the depot with Mr. Patrick's son, who came to meet his father, detailed the occurrence as follows:

"Q. Tell the jury what you saw from the time the train stopped until this occurred? A. Just as the train was coming to a stop I saw Mr. Lindsay and Mr. Wagner and Mr. Patrick get up and start for the back end of the coach, and when the train stopped the brakeman got off and put his stool on the ground, and I noticed a couple of women get off, and I don't know whether there was anybody else got off, and the conductor said, 'All right here' and the brakeman said, 'All right here,' and he said, 'All on board,' and he got up and threw his stool up and the train started, and Mr. Lindsay got off and Mr. Wagner got off, not as good as Mr. Lindsay did, and Mr. Patrick was down there hanging with his hand holding on that rod and his hand on the side of the car, and it looked like he was trying to get back, or something, and the brakeman in the meantime was standing there watching him, and just as I saw Mr. Patrick fall he jerked the string."

On cross-examination this witness said:

"He started to get off. He didn't get off."

The other two boys who were standing looking at the train at the time testified in corroboration of young Archibald.

In January, 1916, plaintiff left the hospital to attend the trial and testified in substance as follows:

"A. The 15th--my memory is awful bad. On the 15th of the month I went to--Wagner and myself went to Rainier and when we were coming back on the train we were on they threw me off--I fell off of the car; they threw me off of the car down and mashed me up; that is about as much as I can tell you."

Under all the circumstances it was a question for the jury whether the plaintiff acted as a reasonably prudent and careful man would under the conditions prevailing at the time of the injury. From the evidence the jury evidently believed that when he descended the car steps the plaintiff was expecting that the train would be stopped in order for him to get off at his destination, and while ...