Nickson v. Oregon-American Lumber Co.

266 P. 254, 127 Or. 326, 1928 Ore. LEXIS 270

Opinions

McBRIDE J.

The testimony in this case covers a great deal of ground, but the salient facts may be stated as follows:

Keasey is a railroad station on what is generally designated in the testimony as the S. P. & S. railroad, which extends from that place to the town of Linnton in Multnomah County. The O. A. L. Company have constructed a logging road from Keasey in a southwesterly direction some six or seven miles to their logging camp. This road is extended by the Inman-Poulsen Lumber Company for a distance of something over a mile to what is called their “headquarters camp,” and from this camp the road extends farther about one and three quarters of a mile to the principal scene of their logging operations where their actual operators seem to reside while in the service of the company.

The husband of this plaintiff, at the time of the accident in question and for a long time prior thereto, had been employed as a laborer of the logging camp of the Inman-Poulsen Lumber Company and the plaintiff, his wife, was employed there for about six months up to about three weeks before the accident occurred, when she ceased to be employed and was engaged in preparations for housekeeping in a shack where she and her husband proposed to reside, he continuing in the employ of the company.

The tracks of the two companies, 0. A. L. Company and the Inman-Poulsen Lumber Company, seem to have been used jointly by them in their logging operations, each one having the right to use the track of the other, hut in a way not to interfere with each other’s operations. There is no proof of any formal contract between them to this effect, but the evidence abundantly shows that each party assumed to have a right to use the tracks of the other in their necessary operations; that each party exercised the right to use, in addition to logging trains, railway speeders to and from the station at Keasey through the whole extension of the two railway systems, and that the title to the railroad from the camp of the O. A. L. Company to Keasey was in the 0. A. L. Company and the title to the extension of the railroad and other camps of the Xnman-Poulsen Lumber Company was in that company. It appears from the uncontradicted testimony that there was no other way for employees or other persons visiting in the 0. A. L. Company’s camp or the Xnman-Poulsen Company’s camp to get to them or away from them except by riding upon logging trains or speeders along the respective tracks. There is abundant evidence that it was a common practice of both companies to use these speeders and to carry, without charge, persons desiring to visit either of said camps, or to depart therefrom. To avoid the interference of such speeders with each other, or with the logging trains upon the railroad, it seems to have been customary for the person operating the speeder to stop at the camps of the 0. A. L. Company and get a clearance from the operator there who was in the employ of the 0. A. L. Company before proceeding on the journey to Keasey. In this way a speeder proceeding from the 0. A. L. Company’s camp could have reasonable assurance that it would not meet with any train or speeder coming from the opposite direction. On the day of the accident the plaintiff desired to go to Portland to visit and take care of her mother, who was sick, and boarded a speeder of the Inman-Poulsen Company for that purpose. Whether she boarded the speeder by permission, or by invitation, or was simply taken as a passenger by reason of what appears to have almost if not entirely been a custom of the companies, does not appear. She boarded the speeder of the Inman-Poulsen Company which had attached to it a trailer containing several employees of the said company, and it proceeded to the camp of the O. A. L. Company where the person in charge of that camp gave them a clearance with the information that an O. A. L. Company’s speeder was also proceeding to Keasey and was about fifteen minutes ahead of them. The O. A. L. Company’s speeder was in charge of the defendant Davidson, who was going to Keasey on business for the company, one of the particulars of which was to pick up some six-foot iron rails for the purpose of putting them together or using them at Keasey as a turntable for the machine which he was in charge of. What other business he had there, if any, does not appear.

The turntable material was located about halfway between the O. A. L. Company’s camp and Keasey, and at a point about six or seven hundred feet above the scene of the accident. On his way down Davidson had passed the place where the turntable material was lying and becoming aware of this fact he started to back up the grade toward the 0. A. L. Company’s camp, and while so doing sighted the Inman-Poulsen Lumber Company’s speeder on which plaintiff was riding and stopped his car, the Inman-Poulsen Company’s driver doing likewise, the interval between the two cars being variously estimated at from 30 to 50 feet. At this time there was on the Inman-Poulsen Lumber Company’s car the plaintiff and her daughter, a man by the name of Gillies, another man by the name of Peterson, and the driver, and in the trailer attached to it were several other persons to the number of seven or eight. Davidson got out of his car and told the defendant Domnisse to watch it, went back to the Inman-Poulsen Lumber Company’s car and explained to a man by the name of Winkler, who was in charge of that car, that he had passed the rails he was looking for and requested Winkler to back the speeder up and assist him in finding them, and bring them down to his own car. Winkler complied with this direction and the Inman-Poulsen speeder went back upon this errand several hundred feet, picked up the rails, laid them on the front part of the speeder and started on its return toward Keasey at a speed variously stated at from six to ten miles. In the meantime, defendant Domnisse, who appears to have known little or nothing about the management of the speeder, started up his car, and at a point probably 150 or 200 feet from where it had made a stop he met the Inman-Poulsen speeder and the collision occurred. Domnisse testified that Davidson gave him a signal which he interpreted as a signal to come ahead with his car and that he did so, meeting the other car unexpectedly, he put on his brakes and stopped his car and that the Inman-Poulsen car collided with him and in this way he accounted for the collision. The testimony for the plaintiff is to the effect that when Winkler, the operator of Inman-Poulsen Lumber Company’s car, saw the other car approaching at a rather rapid rate of speed he put on his brakes and came almost to a stop before tbe collision occurred. Plaintiff testified that Davidson bad gotten in tbe Imnan-Poulsen speeder and was sitting by ber side and called out to ber to jump, and that sbe jumped from tbe car, breaking ber ankle and receiving a very serious, if not a permanent injury. One of tbe main questions in tbe case is, "Who, if anyone, was tbe negligent cause of tbe collision? Tbe plaintiff’s main contention is, of course, that Davidson, being in charge of tbe O. A. L. Company’s speeder, was bound to operate it with at least reasonable regard for tbe safety of tbe occupants of tbe other car and that such reasonable operation would preclude bis driving tbe car or causing it to be driven up tbe road where tbe Inman-Poulsen Lumber Company’s car would likely to be on its way down toward Keasey. Tbe plaintiff contends that Davidson gave tbe signal to Domnisse to bring’ tbe car along and in so doing acted negligently both in respect to causing tbe car to be driven at all and in causing it to be driven by an unskilled and ignorant driver. Davidson stoutly denies that be ever gave such an order or requested Domnisse to bring the car up tbe road, or to do anything with it except be states that when be went up to tbe Inman-Poulsen speeder to discuss picking up tbe rails, be told Domnisse to watch tbe car. The testimony in this respect is conflicting and if tbe writer bad been on tbe jury be would have hesitated in accepting Domnisse’s statement that Davidson signaled to him to proceed.

It was merely a question of fact for tbe jury and there is some evidence to justify plaintiff’s contention. Under tbe Constitution, we have no authority to pass upon the weight of tbe evidence, so, for tbe purpose of this case, we must assume that the order was actually given and it was really not an unnatural order under the circumstances had Davidson left the speeder in charge of a competent man instead of one who seems to have been an ignoramus so far as knowledge of its operation was concerned. The situation was that the rails which Davidson desired to carry down to Keasey were beyond the point where the Inman-Poulsen speeder stopped and it would have been impossible to have gone past the Inman-Poulsen speeder in order to find the rails and put them upon the speeder controlled by Davidson, so it would seem the natural thing that the Inman-Poulsen speeder should be backed up to or beyond the place where the rails were in order that the O. A. L. Company’s speeder could take them on board and it was natural, being ignorant of the exact place where the rails were, that Davidson should desire to be a little ahead in order to find them, and it would not be unusual for him to have wished to have his own speeder near the place where they were picked up, but this is merely speculation. So, we have here this undoubted and unquestionable state of affairs: The Inman-Poulsen speeder- was moving down the track toward Keasey and the 0. A. L. speeder was moving up the track toward the 0. A. L. Company’s camp and under these circumstances they collided. It is evident that the collision could not have occurred unless somebody was negligent. There was a serious blunder somewhere which resulted in an injury to the plaintiff. Now, whose blunder was it? Looking at the matter through the medium of the testimony, there is much to justify the idea that it was a case of joint negligence on the part of both parties, but, in that event, it would be no justification to the defendant com pany here to demonstrate that fact that the Inman-Ponlsen Lumber Company was also negligent.

The plaintiff could elect to sue one of two or more joint wrongdoers if she saw fit. In fact, in this case there seems to be a general disposition among all the defendants as between Davidson and the O. A. L. Company to pass the responsibility on to somebody else rather than to show there was no negligence on the part of anybody. If we assume, as we must, under the verdict of the jury, that Davidson directed or requested Domnisse to follow him with the 0. A. L. Company’s speeder, which the jury had a right to find, it was a negligent act under the circumstances, and he was as much responsible as though he had been actually in control of the speeder himself. If anyone is legally responsible for plaintiff’s injury, it is the company who placed Davidson in charge of the speeder with authority to operate it on their business on that road.

There is a contention that the Inman-Poulsen Lumber Company was only operating their speeder on the end of the road between the 0. A. L. Company’s camp and Keasey by sufferance and they themselves were licensees, but the testimony taken altogether indicates that both companies were engaged in the same class of business; that the necessity for both of them to use each other’s tracks existed as to both, and that whatever agreement they may have had between themselves, they were to be treated as joint users of the tracks. The 0. A. L. Company was not a trespasser or a bare licensee when it chose to use the portion of the track constructed by the Inman-Poulsen Lumber Company, nor was the Inman-Poulsen Lumber Company a bare licensee when it used the track of the 0. A. L. Com pany in the course of its business, and in the situation in which the companies were placed, with no other ingress or egress to or from their respective camps except by the railroad track, the speeders constituted a necessary part of their equipment and a necessary adjunct to carrying on their business. They were at a remote place in the forest and neither would be able to keep or secure workmen or conveniently obtain provisions, or transact the incidental part of their business with the outside world, which was necessary to carry it on, without the use of the speeders or something of that character. They were used to bring their employees into their camps and to get them out, and bring them into their camps for the purpose of carrying on their business, necessarily correlated a corresponding obligation to take them out again on necessary occasions. They owed this as a moral if not a legal duty. The plaintiff went into the Inman-Poulsen Company’s camp as an employee and labored there for several months and it was not expected, nor could it be reasonably anticipated that when her work ceased, she should walk seven or eight miles through the howling wilderness to get a passenger railroad which would carry her to civilization. She was not a bare licensee and when having gone into the camp on the business of the company she worked for, she was entitled to consideration in the manner of getting out. The testimony does not indicate that anybody so situated was ever refused transportation, or that they were in the habit of asking it as a favor, but rather that it was granted as a matter of course just as the same consideration was shown to people coming in to sell provisions and supplies to the companies. It is true that the railroad was not strictly a passenger road in that it had no schedule or fees for the transportation of passengers, and was not permitted to carry passengers for hire thereby avoiding the supervision of the Public Utilities Commission; but, the fact that they charged no fare did not in any way lessen their responsibilities any more than it lessens the responsibility of a common carrier railroad to a passenger, who is traveling on a free pass, and the very fact that a common carrier carries a person free does not on that account lessen their liability for injuries sustained by reason of negligence.

Under all the facts in this case, we hold that both of these companies owed the plaintiff the duty of taking reasonable care that she should not be injured by their negligence while traveling over the tracks jointly used by them, and that there is evidence sufficient to go to the jury that both companies were negligent in that respect. The evidence shows that Davidson was in charge of the O. A. L. Company’s speeder in the transaction of the company’s business as an agent of the company, and for all the purposes connected with the use in the management of the speeder on this road he was the company; that for like purposes Winkler, who was put in charge by the Inman-Poulsen Lumber Company as an operator of their speeder, was also the company, and for the joint and several negligence both of their respective companies were liable.

The question is raised as to the effect of the verdict of the jury in respect to Domnisse upon the verdict in this case. The verdict is rather peculiar. The jury found in favor of the plaintiff and against the 0. A. L. Company and Davidson, but as to Domnisse they returned a verdict in the following words:

“We the jury, duly impanelled to try the above entitled cause, find our verdict for the defendant S. J. Domnisse. Not Guilty.

“William E. Newman, Foreman.”

It is contended that by finding Domnisee “not guilty” the jury found that he did not operate the car recklessly or unskilfully and that he did not know that it would collide with the speeder of the Inman-Poulsen Company. Technically considered, perhaps the jury may have found all these things, but Lord only knows what they intended by their verdict of “not guilty” as to Domnisse, but the verdict for him would not necessarily preclude the charges of negligence against the O. A. L. Company and Davidson.

The gist of the charge against Domnisse was that he operated his speeder at a too high rate of speed and also operated it in the direction of the Inman-Poulsen Lumber Company’s speeder. There is no evidence that Domnisse knew what was going to be done with the Inman-Poulsen speeder or when it was likely to return. The evidence shows that Davidson did know where it was going and what was to be done and how soon it was to return. Domnisse might possibly not be negligent in the respects charged and still Davidson, and through him the company he represented, be guilty of the negligence charged against him and his company. It must be confessed that the proposition is a very close one, but courts are disposed to be rather tender and considerate of the inexperience and idiosyncrasies of jurors and not to seek mere technical reasons for setting aside their verdict.

It is to be regretted that the pressure of business of this court precludes a discussion in detail of the various points urged by defendants’ counsel. We have, however, given them serious consideration, although, for the reasons mentioned, we have not discussed them editorially in the opinion.

For appellants there was a brief over the name of Messrs. Wilson & Reilly, with an oral argument by Mr. James G. Wilson. For respondent there was a brief over the name of Messrs. Senn S Recken, with an oral argument by Mr. F. S. Sewn.

The judgment of the Circuit Court is affirmed.

Affirmed.

Rand, C. J., and Coshow and Rossman, JJ., concur.