72 P. 324 | Or. | 1903
delivered the opinion.
This is an action instituted by George Schleiger, as administrator of the estate of his deceased son, Fred Schleiger, against the Northern Pacific Terminal Company, to recover damages resulting from the death of his said son, a minor of the age of eleven years, which it is alleged was caused by the negligence of the servants and employés of the defendant company. The defendant maintains several railroad tracks, used for switching purposes, crossing Eighth Street, in the City of Portland, near its junction with Front Street, which it approaches obliquely at an approximate angle of forty-five degrees from the southwest; and, extended across the latter street, it forms a continuous passageway to the westerly end of the approach to the Albina Ferry. At the time of the accident, the company’s employés, consisting of an engineer and fireman, with the assistance of a brakeman, were engaged with engine No. 5, in switching some cars upon switch tracks Nos. 15 and 16, both of which cross Eighth Street very near its north end. They had just switched a car (possibly two or three) upon track No. 15, and pulled the train, then consisting of seven box cars, and one flat car, past No. 16, with a view of backing again upon that track, when it was observed that the ferry was making a landing with a number of passengers from Albina, whereupon the train was halted for a time (two minutes or more, perhaps), and then, at the signal of the brakeman, it was moved back upon switch No. 16; and while the end cars were crossing Eighth Street, moving slowly (at the rate
John McCarty testified that he crossed on the ferry; that he first saw the two boys thereon or near it; that he passed off and upon Eighth Street, and, when fifteen yards or so beyond the track, his attention was attracted to the train of cars backing up across the street; that he saw the boys stepping upon the track three or four feet in front of the car; that, apprehending the danger, he at once threw up his hands and shouted to the brakeman, who was then on the west side of the train, two or three cars from the engine; that the car struck the boys, and he ran back, and when the train came to a standstill the brakeman took this boy out; that the other was unhurt; and that when he first crossed the track he saw no one there to signal the train, or to give warning to passengers of its approach. Herman Jessman testified that he and Fred were going up on the south side of the street to the depot; that Fred was walking to the north of him, and a few steps behind ; that he happened to look up, and saw the car, and tried to get out the best way he could ; that the car hit him on the side, and knocked him out, off the track, a little way from the wheel on the side away from the ferry; that when he got up he saw Fred in the middle of the track, and the cars had not then stopped moving; that he heard no bell ringing and saw no brakeman when he came near the track, but that he heard some one call to him. On cross-examination he testified that he was talk
Upon the part of the defendant we may say, generally, that the evidence adduced by it tended to show that its agents and employés were at the time exercising due care and precaution in the management of the train with reference to the crossing, and the danger of accident incident thereto; that the train was stopped on purpose to allow the passengers from the ferry to cross the track; that when all had crossed, so far as could be seen, the brakeman, who was then standing just north of the street, signaled the engineer to back up the train; that he walked on south, and as he did so the cars went by slowly; that when he got nearly to the south sidewalk he heard some one exclaim, “0, my God!” and that he turned and gave the engineer a signal, which brought the train to a sudden stop ; that just before it came to a standstill he saw a boy come out from between the first and second cars, and
There was a motion for nonsuit when the parties rested, which being overruled by the court, the jury returned a verdict for the plaintiff, and, judgment having been entered thereon, the defendant appeals.
Furthermore, no action for personal injuries survived, and our statute upon the subject (B. & C. Comp. § 379) is but declaratory of the common law. Section 34 therefore gives a right of action to the parent that was not maintainable at common law, unless it was confined to the injury of the child culminating in his pecuniary loss or damages in the interim between the time of the disabling injury and its death, which did not lapse with the death of the child. Neither is it a survival statute. It revives no right of action that the deceased could have maintained, but continues in part a right the parent formerly possessed, and in part affords him a remedy entirely new; and, where death ensues from the injury, the two are merged, and the amount of recovery is measured by the pecuniary loss sustained by the parent or guardian by reason of both the injury and death: Pennsylvania Co. v. Lilly, 73 Ind. 252. This seems to us to be the most reasonable interpretation of the statute, considering the
Counsel relies strongly upon the opinion of Mr. Justice Lord, in Putman v. Southern Pac. Co. 21 Or. 230, 239 (27 Pac. 1033), wherein he says (depending mainly upon the case of Mayhew v. Burns, 103 Ind. 328, 2 N. E. 793): “Under age, and when the child is in the service of his parent, thére is no right of action under section 371 (B. & C. Comp. § 381) for its death, but under section 34, and the damages recoverable are for the value of the child’s services from the time of the injury until he would have attained his majority, taken in connection with his prospects in life, less his support and maintenance. * * But when the relation of parent and child continues after majority, the parent receiving support or service may maintain his action under section 34, notwithstanding the administrator may prosecute his action under section 371, and the damages recoverable are the reasonable expectations of pecuniary advantage or prospect of support from the continuance of the relation if his life had been spared.” But this expression of the learned justice cannot be considered to be the law of the case. Nor is it clear that even he adhered to it when the case was finally.disposed of on a rehearing. There was a divided court, one of the justices being unable to sit, and the case was affirmed by reason thereof. As explicitly stated in the opinion on rehearing, the division arose over the interpretation of section 34; it being suggested that the right of action of the parent was confined to the minority of the child. This suggestion has since been held to be its proper construe
(1) “Where the engine is at the rear of a train, it is the duty of the company to either put a man as a lookout on the forward car, or else to station a man at the- crossing for the purpose of giving warning, and the failure to do one of these two would constitute negligence.
(2) “Or if you find that, although the bell was rung, that they had no lookout, either on the forward car, or at or near the crossing, to warn pedestrians on the street that the train was coming, it was, in that event, guilty of negligence.”
Defendant’s counsel insists that the court should, under proper directions, have left it to the jury to say whether the company, under all the circumstances, should have
Affirmed.