Kearney v. Oregon R. & N. Co.

Decided January 24, 1911. On Motion to Dismiss. [112 Pac. 1083.] Opinion PER CURIAM. 1. Respondent Kearney on December 7, 1910, moved the court to dismiss the appeal in this case for the reason that appellant failed to file its brief within the time provided by rule 6 (50 Or. 572: 91 Pac. viii). It appears from the record that appellant’s brief should have been filed on or before November 27th; that on December 3d defendant made an application to this court for an extension of time until December 22d, in which to file its brief, which was granted on December 5th. From the showing made, there can be no question that the appeal has been taken [14] in good faith. The default occurred through a misconception by defendant’s counsel as to the date from which the 30 days after the appeal was perfected should begin within which appellant must file its brief, and the showing made by appellant is sufficient to establish excusable neglect on the part of the counsel in that matter. Statement by Mr. Justice McBride. This is an action for damages for personal injuries to plaintiff, resulting from alleged negligence of defendant while plaintiff was a passenger upon defendant’s railway train. There is evidence on plaintiff’s behalf tending to show that on May 28, 1909, plaintiff entered the coach in which he was riding at Umatilla, and that the train reached Pendleton about 2:35 o’clock in the morning. The car was a vestibule car with a door on each side and trapdoors in the floor over the steps. Plaintiff was seated with two compaions, Hughes and Gard, and did not leave his seat until the brakeman announced Pendleton — plaintiff’s destination — when they were something over a mile west of the station. Thereafter plaintiff and his two companions arose, put on their overcoats, and plaintiff took his grip, preparatory to leaving the train. When about 900 feet from the station, Hughes walked out upon the front platform, Gard following and plaintiff a few feet behind. Gard stepped down on the steps on the north side of the car, and Hughes stood at the head of the steps on the platform. Both doors of the vestibule were open, and there was evidence tending to show that the south door had been opened at Echo, several miles below Pendleton, to permit a passenger to alight, and that it had not been closed thereafter. Hughes and Gard testified that the last time they observed plaintiff he was standing just inside the car door facing the platform; that a short distance below the station the train slowed up considerably, causing a heavy jerk; that they got off at the station; and that, after assisting the chief of police, who was plaintiff’s brother, to arrest some tramps suspected of robbery, and after going up into town, they became anxious about plaintiff’s nonappearance, and, in company with his brother, they went down the track to look for him, and found him lying on the south side of the track, about 700 feet west of the station. He was helpless and unable to speak, and it was claimed that his injuries were such as to render him incapable of appearing as a witness in his own behalf. Other facts appear in the opinion. [14] The motion to dismiss the appeal will be denied and defendant relieved from his default under the authority of Neppach v. Jones, 28 Or. 286 (39 Pac. 999: 42 Pac. 519); Wagner v. Portland, 40 Or. 389 (60 Pac. 985: 67 Pac. 300); Wood v. Fisk, 45 Or. 276 (77 Pac. 128, 738); and Johnson v. White (decided by this court January 24, 1911). Motion Denied. Mr. Justice Bean having heard this case in the court below took no part in its decision here.