Harper v. Oregon Electric Railway Co.

224 P. 1096 | Or. | 1924

COSHOW, J.

The plaintiff complains of the court’s ruling denying his motion to strike out certain parts of the affirmative answer of the defendant. We have carefully examined the motion and the parts moved against so far as we can by the indefinite description of those parts in the record. It may be helpful to remind the litigants that in actions at law the pleadings in their original form are not brought to this court. The parts moved against are described by the number of the page and the line giving only the first and last word of the parts moved against respectively. The printed pleadings do not correspond in pages and lines with the original typewritten pleadings. While we believe we have identified the matter moved against, there is an element of guess. A critical examination, however, of the defendant’s answer in the order suggested in plaintiff’s brief, has convinced us that the court did not err in denying the motion.

It was not error to permit the defendant to show that the plaintiff was the only person in or about the premises at the time the accident occurred. The evidence sought by the question objected to may not have been very material, but it was not reversible error to allow the question to be answered. The jury is entitled to all of the evidence which will place it in a situation to determine intelligently the facts at issue. Whether or not the place where the accident occurred was frequented by the public generally is a matter that the jury had a right to consider in determining the real matter presented by the plaintiff’s cause of action, namely, whether or not the defendant was negligent in operating its train at the place and time.

The appellant requested the following instruction:

1.

“You are instructed that if you find from the testimony by a preponderance thereof, within the light of these instructions, that the plaintiff at the time of the accident was in the performance of his duties, where he had a right to be, or where he was required to be, then you are instructed that the law did not require him to stop, look and listen before he crossed or went upon the railroad track, but under such circumstances he would have a right to give his attention to his work and would have a right to rely upon defendant giving him some warning of the approach of its train, and while he must always look out for his own safety, yet, under such circumstances as I have indicated herein, if you find that they are established by the evidence, the decree of care required of plaintiff would be measured by what an ordinarily prudent man would do under the same circumstances, consistent with the performance of his employment. ’ ’

The court in his instructions to the jury covered the matter thoroughly. The instruction requested goes too far. It undertakes to define just the proper acts which would not he required of the plaintiff. The question of contributory negligence was involved in the case. The plaintiff testified that he had special notice that the engine was there for the purpose of removing four empty cars at the extreme north-end of the train of cars then standing on the spur-track. The brakeman on the train assisted him in disconnecting the steam-pipes of the asphalt tank-car from the steam-pipes of the boiler. The plaintiff also testified that it usually required about 15 minutes for the trainmen to complete the operation of removing the cars from the spur-track on to the main Front Street track and then replace the cars that were to remain on the spur-track. The witnesses for the defendant testified that the operation required only about 10 minutes. During the time the engine was moving with the different cars, either on the spur-track or on the main track, the plaintiff testified that he saw them operating, as he thought, on the Front Street track. Now, under this testimony, it was for the jury to- determine just what acts would constitute negligence on the part of the defendant as well as on the part of the plaintiff, and for that reason the court did not err in giving the instruction requested by the plaintiff and hereinbefore set out.

The plaintiff also requested the two following instructions :

2.

“If at time of the accident plaintiff was where he was required to be, and if the defendant’s employees knew that he would be, or would likely to be upon said track, it would be negligence for the defendant to back its cars np to and over said place without a light or some signal to properly notify plaintiff of the approach of its train.

3.

“You are instructed that if, at the time of the accident, plaintiff was where he was required to be, he had a right to rely upon defendant giving him some warning or notice by a bell, light or some system of signal that its train was approaching, and he had a right to give his attention to his work relying upon this warning being given to him of the approach of defendant’s trains.

The court did not err in refusing to give instructions numbered 2 and 3 requested by the plaintiff. It is not necessary to repeat our reasons for sustaining the refusal of the lower court to give instructions 2 and 3.. They virtually required the court to state as a matter of law, notwithstanding the fact that the plaintiff had been given specific notice of the intention to switch the cars from the spur-track and then back again to the spur-track, and notwithstanding this operation would consume only 10 or 15 minutes, that some other and further notice should be given to the plaintiff. In the light of these circumstances and facts, it was for the jury to determine whether or not such notice and warnings, as were given, were sufficient. It was also for the jury to determine whether or not, under all the circumstances, the plaintiff was guilty of such negligence as directly contributed to the accident and would preclude him from recovery.

The judgment of the Circuit Court is affirmed.

Affirmed.