Breese v. Wildwood Lumber Co.

Mr. Justice Bean delivered the opinion of the court. At the close of the plaintiff’s case,, defendant’s counsel moved for a nonsuit, and assigns the refusal to grant the same as error. It is the contention of defendant that the plaintiff knew that the'pile of lumber was there, and that he could have seen the same if he had made any effort to observe it, or had used reasonable care on his part. 1. This is the only question raised and relied upon in this case. In Wharton’s Law of Negligence (2 ed.), Section 782, we find this familiar statement: “I can undoubtedly, in exercise of my rightful liberty, do generally with my property, within its own orbit, what I will; but, if I so wield it as to impinge upon the rights of others, then I am liable for the damage so produced. * * Thus I may dig pits at my pleasure on my land; but I will nevertheless be liable if any person having a right or even permission to enter the land falls into one of these pits and is hurt.” In Whartons Law of Negligence, (2 ed.), Section 437, it is said: “If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be regulated and governed, he is bound to perform it in such manner that those who are rightfully led to a course of conduct or action, on the faith that the act or duty will [538] be duly and properly performed, shall not suffer loss or injury by reason of his negligence.” 2, 3. The main contention of the defendant is that the risk was an open, visible one, and that plaintiff knew, or ought to have known, of the proximity of the pile of lumber to the spur track. Contributory negligence will not in all cases be imputed as a matter of law to a person who receives an injury from a danger simply from the fact alone that it might have been seen, for the reason that the nature of his duties, or the surrounding circumstances, may be such as to detract his attention from the danger. 1 Thompson, Negligence. (2 ed.), Section 189; Gentzkow v. Portland Ry. Co., 54 Or. 114, 124 (102 Pac. 614: 135 Am. St. Rep. 821) ; Webb v. Heintz, 52 Or. 444 (97 Pac. 753). In discussing a similar question in the case of Johnston v. O. S. L. Co., 23 Or. 94, at page 105 of the opinion, 31 Pac. 283, at page 286, Mr. Justice Moore said: “An open, visible risk is such an one as would in an instant appeal to the senses of an intelligent person. Wood, Mas. & Ser. 763. It is one so patent that it would be instantly recognized by a person familiar with the business. It is a risk about which there can be no difference of opinion in the minds of intelligent persons accustomed to the service. It is not expected that the servant will make close scrutiny into all the details of the instrumentalities with which he deals. His employment forbids that he should thus spend his time. If the rule were otherwise, the management of a great railway system would be needlessly slow. The servant is expected to observe such objects only, in the absence of notice, as would in an instant convince him of their danger. It is not expected of a switchman that he should carefully measure the distance between a switch target and the rail.” When a defense of contributory negligence is claimed as a ground for a nonsuit, as in this case, it must appear [539] that reasonable men, acting as the triers of the fact, would find, without any reasonable likelihood of differing in their views, either that the plaintiff knew and appreciated the danger, or that ordinarily prudent men under the same circumstances would readily acquire such knowledge and appreciation. The fact that the plaintiff had actual or constructive knowledge must appear either directly or by necessary inference from the evidence and the uniform experience of men, before the court can order a nonsuit on this ground; and this result must follow after the evidence has received a construction most favorable to the plaintiff. Gentzkow v. Portland Railway Co., 54 Or. 114, 126 (102 Pac. 614: 135 Am. St. Rep. 821). The plaintiff was performing a service for the defendant in going after the loaded car. The engine was being run in on the spur track for the purpose of taking out a car of lumber from defendant’s mill; therefore plaintiff was rightfully upon the premises and engaged in performing his duty. He had a right to expect that the yard was reasonably free from snares or unseen and dangerous traps, so that a car could pass safely over the track in accomplishing the purposes for which the spur was designed. The evidence is to the purport that Breese was discharging his duties in the customary manner; that, while he had switched cars on the spur before, this was the first occasion that he had to go in for the purpose of taking out a car, as he did on the day of the accident. He states that he knew that the pile of lumber was there, but that he had not noticed its proximity to the track, it does not appear that plaintiff had any reason for thinking that there was any less danger on the opposite side of the car than there was on the side upon which he climbed. It cannot be said as a matter of law that the plaintiff, acting as a brakeman in switching a car, was careless in climbing or riding upon the side of the car (Sou. Kans. Ry. Co. v. Michaels, 57 Kan. 474: 46 Pac. [540] 938), nor that in the exercise of ordinary care he should have noticed the nearness of the pile of lumber to the track which curved toward the lumber, nor that he knew of and appreciated the danger, and was therefore guilty of contributory negligence. These questions were properly for the determination of the jury from all the facts and circumstances as disclosed by the evidence in the case. Johnston v. O. S. L. Ry. Co., 23 Or. 94 (31 Pac. 283) ; Millen v. Pac. Bridge Co., 51 Or. 538, 554 (95 Pac. 196) ; Galvin v. Brown & McCabe, 53 Or. 598, 612 (101 Pac. 671). The jury may have reasonably believed that the plaintiff did not know of the dangerous location of the lumber before the accident, and that on account of his duties, and his position when climbing up the side of the car with his face towards the same, and arranging his switch keys, he did not see that the lumber was so near the rails as to prevent his passing in that manner until it was too late to avert the danger, and that plaintiff, as an ordinarily prudent man acting under such circumstances, would not readily know and appreciate the danger. 1 Thompson, Negligence (2 ed.), Section 446; Gentzkow v. Portland Ry. Co., 54 Or. 114 (102 Pac. 614: 135 Am. St. Rep. 821). There was no error in submitting the case to the jury. The judgment of the lower court will therefore be affirmed. Affirmed.