Woodward v. Oregon Ry. & Nav. Co.

• Decision Date: 06 January 1890
• Citation: 22 P. 1076,18 Or. 289
• Court: Oregon Supreme Court
• Parties: WOODWARD v. OREGON RY. & NAV. CO.

22 P. 1076

18 Or. 289

WOODWARD
v.
OREGON RY. & NAV. CO.

Supreme Court of Oregon

January 6, 1890

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

This is an action to recover damages arising from the alleged negligence of the defendant. The complaint alleges, in substance, that on January 12, 1884, while employed by the defendant as locomotive engineer upon a freight train, and while at Grant's station, in Wasco county, Or., the plaintiff was ordered by the defendant to take his train to Dalles city, "regardless of all other trains;" that, notwithstanding this order, the company permitted another train to start about the same time from Dalles city, in the direction of said Grant's station; and that, as a result of this alleged negligence on the part of the company, a collision occurred between the two trains near Celilo station, in which the plaintiff was injured so that he became insane; and that he remained in this condition until the month of June, 1887; that he is still sick, and believes he can never recover, and claims damages to the amount of $28,700. This complaint was filed October 15, 1888. The defendant demurred on the ground that the action had not been commenced within the time limited by law. This demurrer was confessed by the plaintiff; and an amended complaint filed, substantially like the first, except it was alleged that the plaintiff's insanity continued until the month of May, 1888. The answer denied each of the plaintiff's allegations, and then alleged, as a separate defense, that the plaintiff, while at Grant's station, was ordered to proceed to Celilo station, instead of The Dalles, and there wait for No. 2, the train with which plaintiff collided; and that, in disregard of this order, he did not stop at Celilo, but passed the station, and ran into train No. 2 west of that station; that the train with which plaintiff collided was a passenger train, and had the right of way on the road, which plaintiff well knew; that as the plaintiff was approaching Celilo a flag was displayed, in plaintiff's view, notifying him to stop, which signal he well understood; and that the accident and injuries were the result of the plaintiff's misconduct. The answer also relied upon the statute of limitations. The reply denied the new matter contained in the answer. The jury returned a verdict for the plaintiff in the sum of $9,073, upon which judgment was duly entered, from which this appeal was taken.

It is admitted on the record by plaintiff that his allegation that he was ordered by the defendant to run with the locomotive and train in his charge at the time of the injury complained of, and while at Grant's station, in Wasco county, to Dalles city, in said county, regardless of all other trains, was a mistake on his part; that such was not the fact, but that the fact was that while at Grant's station, on the day of the accident, he received the following order from the defendant as to the running of the locomotive and train of which he had charge, as engineer, "You can have until 7:10 to make Celilo for No. 2;" and that it was while running on said order that the accident occurred. This statement was made by plaintiff's counsel in his opening to the jury, and is shown by the bill of exceptions; but no attempt was made to amend the pleadings so as to conform to the fact. To properly understand the rulings of the court in the giving of instructions, some reference to a portion of the evidence is necessary. The plaintiff, on his examination in chief, in speaking of his orders on the day of the accident, testified as follows: "Question. Do you remember what the orders were? Answer. Well, as I remember the orders, I cannot be positive; but I had regardless orders to The Dalles. Q. What do you mean by that? A. A regardless order is to run regardless of all trains. Q. To The Dalles? A. To the Dalles. Q. What kind of a train did you have that day? A. I think I had forty cars of wheat." On his cross-examination the plaintiff testified as follows: "Question. You say you think you had orders to go to The Dalles regardless of all other trains? Answer. Yes, sir. Q. You concluded that you had a right to run right through to The Dalles? A. No; I was going to stop there for water. That is all. Q. But, except for that, you would have a right to go through to The Dalles? A. Yes, sir. Q. You were not going down, then, to side-track, or anything of that sort? A. No, sir. Q. No intention of that? A. No, sir." During the cross-examination of the plaintiff, and by consent, the defendant put in evidence its rules, which plaintiff had in his possession when the accident occurred, among which were the following: "(1) Passenger trains will be known as 'First-Class Trains.' All others on schedule are 'Second-Class Trains.' Trains of any inferior class will wait indefinitely for trains of a superior class, and will be kept entirely out of their way, and clear main track at least ten minutes before superior train is due. Wild trains will be kept out of the way of all regular trains. Trains going from Portland, or east, have the right to the track over trains of the same or inferior class going in the other direction, and will...