Turney v. Southern Pac. Co.

75 P. 144 | Or. | 1904

Lead Opinion

Mr. Justice Bean,

after stating the facts in the foregoing terms, delivered the opinion of the court.

1. With the exception of some questions of practice hereafter referred to, the controlling question is whether the agreement between the county and the predecessor of the defendant gave the railwaj^ company an exclusive right to the use of that part of the county road between its fence and the river. The trial court proceeded on the theory, as we understand it, that the county court had authority to grant such a right, and that if it did so the plaintiff was a trespasser or mere licensee, to whom the defendant owed no duty except that of not wilfully or intentionally injuring her. It ruled, however, that the county court did not grant the railway company an exclusive right of way, but one to be exercised in common with pedestrians or travelers on foot; and, as a consequence, the plaintiff was not a trespasser, but had a right to be where she was at the time of the accident, and is entitled to recover from the defendant if she was injured by its .negligence. Now, a reference to the terms of the agreement between the county and the railroad company will, we think, give a satisfactory answer to the inquiry. The first order of the county court in relation to the matter granted the company the right:I to use and occupy” any part of the county road for a railroad track or bed. It was required to repair any damage to the highway caused by the construction of its road, and, where it occupied the then traveled way, to construct a road at least twelve feet wide on a grade to be designated by the county. It was also required to construct barriers or guards at and in all places thereafter to be determined. This order clearly granted nothing more to the railway company than a mere right to use and occupy the county road, and evidently did not contemplate that its use should in any way be exclusive, or that the general traveling public should be denied a right to use any portion of the highway, subject, of course, to the paramount right of the company to use its track for the passage of trains and the operation of its road.

2. The second order, after reciting the particulars in which the company had failed to comply with the first, readopted the latter as the basis of the action of the court in making an additional order, defining more specifically the duties of the company in the matter of the construction of rock-wall protections, the grading and building of a new road at places where the road was interfered with by its track, and the condition in which it should keep the traveled way during the progress or suspension of the work. This order was not intended to enlarge the rights of the company, but was meant to impose upon it further restrictions and conditions in the use of the county road. There was nothing in it or in the former order to indicate an intention on the part of the county to abandon any part of the road, or to relinquish its control over it. The orders simply conveyed or granted to the railway company the privilege or permission to use and occupy a portion of the road, but there is no intimation that such use shall be exclusive.

8. The third order was based upon an application of the company for permission to make certain changes “in the location of its railroad over certain county roads,” and grants to the company leave and authority to “relocate its said road a distance of fourteen (14) feet nearer the river,” so that the road “when relocated shall be, except where it deflects to a connection with the road as now constructed, fourteen (14) feet nearer the river than the present location.” The company is required to fill as many of the holes between the track and the property owners’ fences as will fall within a twelve foot roadway, and also “construct a fence or barrier between the traveled roadway and the railroad track for said distance of five thousand one hundred feet, and place the cattle guard upon its road at each end of said fence,” and was relieved from building any barriers or stone walls along the road, except so far as it might deem necessary for its own protection. It was expressly stated that the contract entered into between the county and the company, as evidenced by the order of the county court made in 1869, should “be and remain in full force and effect,” except as thereby changed and modified. By this order the railway company was given permission to move its track fourteen feet nearer the river than it was then located, and the additional duty was imposed upon it of repairing and improving the road between the track and the property owners’ fences so as to make a twelve foot roadway, and to construct a fence between such roadway and its track, with suitable cattle guards at either end. Prior to the making of this order the travel on the highway had been confined to that part thereof between the railway track and the river, and the evident purpose of the contemplated relocation was to change the traveled way from the west to the east side of the track, and to confine the general travel to the space between the railway fence and the fences of the abutting property owners, but there is no evidence in the order of an intention on the part of the county court to relinquish or surrender to the railway company the exclusive right to use any part of the highway. The fence between the traveled way and the track was to be built by the company as a condition to its right to use the highway, and not because that portion of the way inclosed by it was to be the exclusive property of the company. The fence was evidently intended for the protection of travelers with teams liable to be frightened by passing trains, and stock, which otherwise might get on the track and be killed. There is no provision that the railroad company should have the right to use all that part of the road except the space east of its fence. It was only permitted to relocate its track fourteen feet nearer the river, and, if it had been the intention of the county court to grant it the exclusive control over all that part of the highway between its fence and the river—being more than one-half thereof—it would, we think, have been plainly so stated in the order. This construction is borne out by the subsequent conduct of the traveling public and the company. The evidence shows that from the time of the location-of the railroad up to the time of the trial the portion of the highway between the railroad track and the river had been constantly and uninterruptedly used by pedestrians and bicyclists as a highway, without objection or protest from the railway company; thus indicating that it was the general understanding of the company and the public that the exclusive right was not granted to the company, but that it exercised such right in common with the general public.

4. The mere grant by the public authorities of permission to a railway company to use and occupy a portion of a public street or highway does not give it an exclusive right, or deprive the public of the right to use the same in any way not inconsistent with its use by the railway company. Mr. Elliott says : “As a general rule, a railroad company has the exclusive right to use its own track, and one who goes upon it without an invitation or license from the company is a trespasser. But this rule does not apply at highway crossings, nor, under ordinary circumstances, where the track is laid longitudinally upon the surface of a street, whether it be that of a commercial or a street railroad company. The public, exercising due care, still have a right to use the street. And so the railroad company, likewise exercising due care, has also the right to use that portion of the street upon which its track is laid. Their rights are in most respects mutual, reciprocal, and equal; neither being superior or paramount to the other, except that, as the company cannot so readily stop its trains or cars, and is confined to its track, it has the right of way of passage thereon, and persons who are upon the track must leave it and give way until the train or car has passed. Where the track is laid upon a street, a traveler, although a pedestrian, in the exercise of due care, may cross it at any point, and is not confined to the regular crossings”: 1 Elliott, Railroads, §«1093. So, in Bryson v. Chicago, B. & Q. R. Co. 89 Iowa, 677 (57 N. W. 430), the plaintiff’s intestate was killed by one of the defendant’s trains on a public street, and the contention was that he was a trespasser, because the exclusive use of the street at the place where the accident occurred had been granted to the company. It was held, however, that the accident happened on a street which the defendant had the right to occupy and use in common with the public, and the case presented was of an injury to one walking upon the track of a railway company which was laid upon a public street, and, while the decedent was not on the track by the invitation or consent of the company, she had a right to be there, because she was on a public highway.

In Toledo, P. & W. R. Co. v. Chisholm, 83 Fed. 652 (27 C. C. A. 663), a railroad company had been granted the right to lay its track along a public highway or levee of the City of Keokuk, under certain conditions, among which was that it should build a way of certain width and dimensions for public use. The company built a bridge track on an embankment crossing the levee, and the plaintiff’s intestate, a coal operator, had gone upon it for the purpose of inspecting some cars on a coal track on a lower level, and while there was struck by a moving train and killed. It was contended by the company that under the ordinances of the city the public was prohibited from going upon or using that part of the levee occupied by its track, and in disposing of this defense the court says: “In support of its contention that the aforesaid ordinance operated to prohibit the public from going upon or using that part of the levee which is now occupied by the bridge track, much stress is laid by the defendant company on that provision of the ordinance which directs that the bridge track shall be located at least sixty-six feet from the front of the lots lying on Water Street, and that Water Street shall be of a uniform width or sixty-six feet; also on that provision which requires a passageway for teams and vehicles to be maintained underneath the embankment at the west end of the bridge. We think, however, that these provisions of the ordinance do not indicate an intention on the part of those who framed it to devote any part of the levee to the sole use of the bridge companies, and to exclude the public therefrom. It is doubtful, to say the least, whether the municipality had the power to vacate a part of the levee, and devote it to the exclusive use of the bridge companies. But waiving the question, we do not find in the ordinance any evidence of such a purpose. The provisions of the ordinance last referred to were evidently inserted to prevent travel on the street or levee from being unduly obstructed by a location of the railroad track thereon, and by the building of an approach to the bridge ; ■but they fall far short of declaring that the bridge companies should be at liberty to treat the space on which their track was directed to be laid as their private right of way, and that the public should be excluded therefrom. The ordinance seems to have been framed with a careful consideration for the rights of the public, and without any apparent intent to deprive the public of any of its former privileges. When considered as a whole, it shows very clearly, we think, that a joint use of the levee by the public and by the bridge companies for the movement of their trains was intended, and that such regulations were prescribed as would enable the public to use the same with ordinary safety and the least inconvenience. In this connection, it is worthy of notice that the views already expressed relative to the rights of individuals to treat the bridge track as a part of the levee, and to go upon the track for any lawful purpose, is in full accord with the practice which was pursued in that regard after the bridge was constructed. It was proven on the trial of the case that pedestrians had been in the habit of walking along the bridge track to and from the bridge, precisely as they were accustomed to walk over other railroad tracks which were located on the levee, and that such practice had been pursued for some years before the accident occurred, with the implied consent of the bridge companies, or whoever had control of the bridge track. At all events, it was not shown that the bridge companies or any one else had ever objected to sucli practice, or denied the right of persons on foot to approach or leave the bridge in that way. We conclude, therefore, that the deceased was entitled to go upon the bridge track for any lawful purpose, provided he exercised due care and circumspection, and that the defense interposed by the defendant company, to the effect that he was a trespasser while he was upon said track, and that it owed him no duty while in that position, was properly overruled”: See, also, to the same effect, St. Louis, I. M. & S. Ry. Co. v. Neely, 63 Ark. 636 (40 S. W. 130, 37 L. R. A. 616); Louisville, N. A. & C. Ry. Co. v. Phillips, 112 Ind. 59 (13 N. E. 134, 2 Am. St. Rep. 155).

In all the cases it will be noted that where, as in the case at bar, there were no words in the agreement between the public authorities and the railway company excluding the public from the use of the highway, or granting to the railway company an exclusive use thereof, the courts have held that only a right to occupy and use the highway in common with the public was granted. Applying the doctrine of these cases to the one in hand, the several orders of the county court do not evidence an intention to grant defendant the exclusive right to any part of the highway. The first two simply granted permission to use and occupy the road for a railroad track or bed, and this right does not seem to have been subsequently enlarged. The provision in the third order allowing the company to relocate its track fourteen feet nearer the river, and requiring it to construct a fence between the track and the traveled way, was intended as a protection to the traveling public, and not as an exclusive grant to the company. No particular width of the space to be occupied by the railway is specified in the order, as would probably have been the case if an exclusive use had been intended ; and it is not reasonable to suppose that the county court meant to give to the railway company, absolutely and without compensation, all the highway except the small space between its fence and the fences of adjoining property owners. At least, it is but fair to assume that, if such had been its intention, it would have been expressed in clear and unmistakable language.

We are of the opinion, therefore, that the trial court did not err in its construction of the contract or agreement between the county court and the railway company. Neither did the orders of the county court and the subsequent occupation of the highway by the company indicate an abandonment by the public of any portion of the road. An abandonment is a question of intent, and there is no evidence of an intention by the county court or the public to abandon the use of the road by pedestrians.

5. Nor can the defendant claim the right by adverse possession. Its entry and occupation of the highway were by permission, and under a contract or agreement with the county court; and, having so entered and occupied, its possession was not adverse.

6. The only other questions in the case requiring notice are those arising upon an order of the court overruling the motion of the defendant to make the complaint more definite and certain. As a general rule a pleading is bad where allegations essential and material to a recovery are stated in the alternative: Ladd v. Ramsby, 10 Or. 207. In an action of this kind, however, a general allegation that the act which caused the inj ury was negligently or carelessly done or omitted is sufficient, without setting out the.details of the negligence: Cederson v. Oregon Nav. Co. 38 Or. 343 (62 Pac. 637, 63 Pac. 763); Watson, Pers. Inj. § 698. This is particularly so when the manner of the commission of the negligent act is peculiarly within the knowledge of the defendant. In the latter case the plaintiff will not be required to set out the details : Louisville & N. R. Co. v. Crunk, 119 Ind. 542 (21 N. E. 31, 12 Am. St. Rep. 443). Whether the stick of wood which caused the injury to the plaintiff fell or was thrown from the engine or tender was a matter within the knowledge of the defendant, but beyond the cognizance of the plaintiff, and it was impossible for her to state which was the case. Indeed, after all the testimony on the trial was in, the truth in this regard was not clear. One witness, of apparent good standing and character, testified that he saw the stick of wood thrown from the train ; but, on the other hand, the defendant’s employés testified positively that such was not the case. The ultimate fact is the striking of the plaintiff by the stick of wood from the defendant’s .train, and that it occurred through the negligence and carelessness of the defendant’s employés. It is immatérial whether it fell or was thrown from the train. In either event, the defendant would be liable, if negligent, and it was only in its evidentiary bearing as affording a stronger inference of negligence in the one case than in the other that the inquiry became important.

7. It was also sought to require the plaintiff to allege separately the exact amounts of damages on account of medical attendance, care, and nursing, but we do not understand that the law requires such allegations. The damages which the plaintiff suffered on account of the matters referred to were special, and, to enable her to recover therefor, they'must be alleged in the complaint; but this rule does not mean that the damages must be itemized, and the amount of each separately stated. Mr. Watson says in his work on Damages and Personal Injuries, § 699: “In an action for personal injuries, the plaintiff is not required to set out the several elements of recovery, and the amount claimed for each. ‘When it is said that special damages must be alleged in order to be proved, it is not meant that the sum claimed for the particular injury must be separately stated, but that the injury itself, if it is not such as naturally and necessarily results from the wounds or hurts alleged, must be averred.’ ” And to the same effect are 5 Ency. Pl. & Prac. 750; 1 Sutherland, Damages, 770; Maybrey v. Cape Girardeau & J. G. R. Co. 92 Mo. App. 596 (69 S. W. 394); Gerdes v. Christopher & S. I. & F. Co. 124 Mo. 347 (25 S. W. 557).

There are other assignments of error, but they are involved in, and intimately connected with, the questions already considered, and require no further notice. The judgment is affirmed. Affirmed.

---

Rehearing

On Motion for Rehearing.

Per Curiam.

Notwithstanding the able and forceful argument in the petition for rehearing, a reexamination of the chief and controlling point in this case confirms us in the decision heretofore rendered. The other points not referred to in the opinion were carefully considered before the decision, and were deemed without merit. It was believed that they were not of sufficient importance to require a written opinion.

8. The evidence of user by the public of that part of the county road between the railroad track and the river, the testimony that the officers and agents of the company made no claim to an exclusive right to that part of the highway in conversations or negotiations in relation to the matter, and the cross-examination of Mr. Koehler upon that subject, were all competent as evidence of a practical construction by the public and the defendant of the orders of the county court granting to the company the right to use a part of the highway for its track, and also upon the questions of abandonment and adverse user, which were made issues in the case, and submitted to the jury.

9. The attempted cross-examination of the witness Turney as to whether that portion of the highway in controversy had been worked or improved by the road supervisors since the building of the fence was not so connected with the direct examination of the witness as to make the ruling of the court error. Moreover, the fact sought to be elicited was testified to by other witnesses, and, as we understand the record, admitted throughout the trial. Ganong’s evidence that other portions of the county road had been worked and improved by the county authorities was for the purpose of showing a highway by user prior to the construction of the railroad. The defendant company was probably estopped by its contract with the county to deny the existence of the highway, hut nevertheless the evidence could have done it no injury.

The testimony of Apperson, stricken out, that the fence built by the railroad company was intended to be on the line between the railroad company’s right of way and the county road, assumed that there was a difference between the railroad right of way and the county road—the material fact in question. Again, Apperson said that he had no knowledge on the subject other than that of any other citizen of the county, and he was therefore not qualified to testify as to what was intended by the parties. His testimony was not competent for the purpose of contradicting Ganong, because Ganong was the road supervisor at the time the railroad track was changed and the fence constructed,’ and his testimony referred to and was based upon conversations between himself, as an officer of the county, and the agents of the company.

10. The testimony of Young that just prior to and at the time of the injury to the plaintiff he saw wood being thrown from the engine was competent. The witness stood along the side of the railroad track near where the accident happened, and testified that he was watching the train as it passed the plaintiff, and saw some one throw wood and bark from the engine. The evidence of the state-merits made by the fireman, Pearl, to Moore, in the barber shop in Oregon City, shortly after the accident, was offered and admitted as impeaching testimony, and the jury were so advised by the court. The modification of instructions referred to in assignments of error 36, 37, 38, and 39 was not injurious to the defendant. The instructions as requested by it were intended to define the duties of the defendant to a mere licensee or trespasser on its right of way, and the modification was for the purpose of advising the jury that the rule stated in the instructions would not apply to a railroad track situated upon a public road or way.

The petition for rehearing will be denied.

Rehearing Denied'.