62 P. 637 | Or. | 1900
Lead Opinion
after making the foregoing statement, delivered the opinion of the court.
It is most stoutly contended, however, that this court has decided otherwise; that is to say, that the specific facts constituting the negligence should be stated. At first blush, one would say there is ground for the contention, but a careful scrutiny of the cases does not bear it out. It is said in Woodward v. Or. Ry. & Nav. Co., 18 Or. 289 (22 Pac. 1076) : “It is true, in some jurisdictions it seems to be held sufficient to allege generally that the injury complained of was carelessly and negligently inflicted upon the plaintiff, or that, by reason of the carelessness and negligence of the defendant, the plaintiff was injured; but this mode of statement has never been sanctioned or approved in this state, is at variance with the plain requirements of the Code, and would give defendant no notice of the acts claimed to be negligent, so that he might come prepared to meet them.” And in McPherson v. Pacific Bridge Co., 20 Or. 486 (26 Pac. 560) : “The plaintiff’s counsel claims, in effect, on the argument in this court, that a general .allegation of negligence and carelessness was sufficient. But that contention cannot be sustained. Such allegation does not charge a fact.” Knahtla v. Or. Short Line Ry. Co., 21 Or. 136 (27 Pac. 91), is also cited to the same purpose. It is quite probable that the language quoted was used with reference to the general statement of negligence, without stating an act or omission, with the qualification that it was negligently or carelessly done, which all will admit is insufficient. This is obvious from the McPherson Case, wherein it was alleged “that while he (plaintiff) .was so engaged in the erection of said tank, through the negligence and carelessness of said defendant, and through the use of defective machinery by de
The authorities are in unison upon the proposition that knowledge of the defect by the defendant must be proven, and it is only upon the question whether the fact of such knowledge should be stated in the complaint that they divide. The cases holding that such statement is necessary generally hold- also that the complaint should show the plaintiff was without knowledge of such defect. There is much force in the suggestion that, if it is necessary that the fact be proven, it should also be alleged in the declaration. All the cases to which our attention has been especially called are actions either against municipalities for negligence in allowing streets or bridges to become out of repair or unsafe or by servants against their masters. The reason for requiring notice or knowledge to be brought home to a municipality under the conditions alluded to, in order to establish liability, is that it is charged with the duty of keeping its highways and bridges in suitable repair for proper use by the public; and if they should become out of repair by use, or be rendered unsafe or insecure by the acts of strangers, that fact should be brought to its notice before it could be required to make the repair or remedy the evil. Hence it follows that it could not be held responsible for a defect concerning which it had no knowledge or could not have been charged with knowledge by the circumstances of the case. But where the municipality, by its own acts or directions, has, through its negligence, rendered its highways unsafe or dangerous, and injury ensues, no proof or notice is required to render it liable, and, of course, none need be alleged: City of Ft.
The principle upon which is based the liability of the master to his servant is quite analogous to that which fixes the responsibility upon a municipality in permitting its streets and highways to become unsafe. A duty is devolved upon the master to provide his servant with a reasonably safe place in which to do- the work assigned him, with tools and appliances suitable for the use designed, and he is not liable for injuries resulting from the unsafe condition and defects of such place, tools, or appliances, unless he was cognizant thereof, or ought to have known but for his culpable negligence. Hence the requirement that it must be shown that he had knowledge of their condition, or that such facts must be established from which knowledge may be inferred, or such circumstances shown from which it may be made to appear that he ought to have had such knowledge but for his negligence or carelessness. A railroad company owes no such duty to a stranger, nor does the stranger ordinarily have the means of ascertaining what knowledge the company may possess of- defects in appliances conducing to injury; so that the same reason does not exist in his case for requiring the allegation of the company’s knowledge of such defects in his complaint. Such knowledge must, however, be shown before a recovery can be had, and the plaintiff must produce proof sufficient, at least, to make a prima facie case. There is this further difference, which is significant: In an action by a stranger, the allegation is of an act of negligence to which is ascribed the immediate cause of the injury, while the negligent act of the master conducing to the injury of the servant is usually collateral to' the act producing it. The negligent act of providing the servant with unsafe and dangerous appliances is not, of itself, actionable, as no injury necessarily ensues. Some other act must follow to produce
And in Chenery v. Fitchburg R. R. Co., 160 Mass. 211 (35 N. E. 554, 22 L. R. A. 575), an action for running" down the plaintiff while on the defendant’s track where it was crossed by a private-way, along which plaintiff was traveling, the court, speaking through Mr. Justice Holmes, says: “If the plaintiff was a licensee, and nothing more, her case stands no better than if she -was a trespasser. As against a bare licensee, a railroad company has a right to run its trains in the usual way, without special precautions, if the circumstances do not of themselves give warning of his probable presence, and he is not seen until it is too late.” To the same purpose is McCabe v. Chicago, St. Paul, etc., Ry. Co., 88 Wis. 531 (60 N. W. 260). The court say: “The plaintiff was a mere licensee. The defendant owed him no duty of active care. The plaintiff himself was bound to- the exercise of the highest care to shield himself from injury. He had no reason to expect that the defendant would regulate the running of its trains, or change the course of its business, to suit his purposes or convenience. He could expect from it only such consideration and ordinary care as it owes to the general public.” Reardon v. Thompson, 149 Mass. 267 (21 N. E. 369), is illustrative. The plaintiff was passing over the premises of the defend
Where, however, the license or privilege is created, not by tacit assent, but by substantial inducement, held out either expressly or by implication by the owner of the premises, then the obligation arises to see that they are in safe condition, and suitable for the use designed, and liability ensues for a breach thereof. Says Mr. Chief Justice Bigelow, in Sweeny v. Old Colony R. R. Co., 10 Allen, 368 (87 Am. Dec. 644) : “A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability; but if he, directly or bv implication, induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use, and for a breach of this obligation he is liable in damages to a person injured thereby.”
So, in Swift v. Staten Island R. R. Co., 123 N. Y. 645 (25 N. E. 378), where the injury was to the plaintiff’s daughter, a girl of fifteen years of age, while attempting to cross the defendant’s track. At the place of the accident the track ran immediately in the rear of a cluster of houses, at one of which the girl was stopping. The house was separated from the track by a board fence six feet high, through which was a door used by the inmates to pass out, and thence across the track, for the purpose of depositing ashes and garbage in barrels kept on the north side, and to reach a highway, ferry, and store beyond. From near the rear of these houses a board or plank walk had been constructed across the railroad, and, though not a public walk or highway, it had been practically used as such by the people occupying the houses, and by others, 'for many years, with the knowledge and permission of the railroad company. Upon this state of facts the court reaffirmed the doctrine which had been previously announced, that where the public had for a long time notoriously and constantly been in the habit of crossing a railroad at a point not in a public highway, with the acquiescence of the railroad company, such acquiescence amounts to a license, and imposes a duty upon it, as to all persons crossing, to exercise reasonable care in the running of its trains, so as to protect them from injury; citing, in support thereof, Barry v. New York Cent. R. R. Co., 92 N. Y. 289 (44 Am. Rep. 377), and Byrne v. New York Cent. R. R. Co., 104 N. Y. 362 (58 Am. Rep. 512, 10 N. E. 539). The former of these cases involved the condition that the plaintiff’s intestate
So, in Pennsylvania, where plaintiff attempted to cross the track by a well-beaten path, used by the employees of a furnace and others as a short cut to a station and postoffice, and was injured, it was held that she could not be treated as a trespasser: Philadelphia, etc., R. R. Co. v. Troutman,
Mr. T. J. Seufert describes the manner in which it was
Upon the whole, we think there was testimony upon which to put the case to the jury touching the question' of decedent’s right to be upon the wagon road constructed upon the defendant’s right of way, and the nature of such right, and by this to determine what duty the company owed the decedent, and, following in its train, the question whether the railroad company exercised due and proper precaution and vigilance to> prevent injury to the decedent, under the existing circumstances and conditions. If decedent was a mere trespasser upon the defendant’s right of way, or was there by passivp acquiescence under a naked license, of the company, then it owed him no duty requiring active vigilance for his protection, and it was not restricted thereby in the use of its tracks or cars and appliances in the prosecution of its business; but, if the decedent was there by inducement or invitation of the defendant, there was imposed upon it the
In some of the cases, especially those from New York, there is a distinction made between active and passive acquiescence, or negligence by commission and by omission. Such distinction is sought to be invoked here, it being urged that, if there is here any negligence at all, it is of the latter sort, and not such as to render the defendant liable. Negligence, when applied to torts, is a negative quality, as it denotes the want of such reasonable care, prudence, diligence, skill, or vigilance in the interest of others, and for their protection against injury, as the circumstance or occasion demands, and to apply to it the qualifying terms “active” or “passive” seems inappropriate and incongruous. There are degrees of negligence, such as slight and gross: but these are not indicated by the terms “active” and “passive.” Nor does it occur to us that the nature of the act, whether of omission or of commission, should make any difference in the degree of care, precaution, skill, or vigilance that should
When the plaintiff rested his case, the defendant moved for a nonsuit upon the ground that there was not sufficient testimony adduced competent under the pleadings to go to the jury. What we have heretofore said will indicate our views upon this subject. It is insisted that the evidence touching the breaking of the flange from the wheel is insufficient to warrant or justify an inference of negligence; but, as we have seen, there was testimony sufficient to go to the jury as to whether the flaw, which it is evident previously
Affirmed.
Rehearing
Decided 4 February, 1901.
On Petition for Rehearing.
delivered the opinion.
Counsel for appellant have presented a very able and exhaustive petition for a rehearing of this cause, but devoted largely to a reargument of matters heretofore fully considered. Their chief reliance, however, is based upon questions which they insist the court overlooked in disposing of the case.
The defendant tried the cause in the court below upon the theory that the decedent was a trespasser, or at most was upon the defendant’s right of way with its mere tacit assent, and hence that defendant owed him no duty of active vigi-. lance to avoid, hurting him, or, to state it in another form, that it owed him no duty except that it should not wantonly and willfully injure him. On the other hand, the plaintiff urged the theory that the decedent was something more than a trespasser or mere licensee; that he was. at the place where he was killed by the encouragement and invitation of the defendant’s officers and employees. At the trial here great emphasis was laid upon this especial issue, which received the greater attention because it presented the most important as well as the most vital question in the case. The instructions fairly presented the issue to the jury, and, while they may not be entirely unexceptionable, they are intelligible, and were undoubtedly understood by that body. The only doubt we entertained touching them was whether the court, in view of the attending circumstances and conditions, had sufficiently described or defined what would be reasonable care on the part of the defendant in the management and operation of its trains, having in mind the different phases of the proposition respecting the decedent’s right to' be at the place where he lost his life. But no instructions were suggested that were more explicit upon the subject. The jury could not have mistaken the real issue, so we concluded there was no error, and are of the same opinion now. It would have been a work of supererogation to' have taken up the instructions one by one, and discussed them separately, the general rule being that they should be coristrued as a whole; hence the remark at the close of the opinion that what we
It is further insisted that there was error in not giving the following instruction, viz.: “The plaintiff charges that the defendant was operating a train of cars over the premises and upon its tracks, the trucks of which were too wide for the tracks; but I charge you that there is no- evidence to sustain this allegation and that you cannot consider the same.” The vice of this instruction consists in the fact that it invades the province of the jury, because there was some evidence competent to- go to the jury upon the subject. It was sought, by motions addressed to the court, to have the evidence taken from the jury; but it declined to grant them, upon the ground that the evidence had some tendency to- prove the charge alluded to in the instruction. The tendency may have been slight, but there is no- mistaking the fact that it has some bearing upon the question, and was proper to be submitted to the jury.
Having carefully reconsidered the views expressed in the opinion- handed down, we find no reason to- doubt their soundness. The petition must therefore be overruled.
Rehearing Denied.