McGilchrist v. Portland E. & E. Ry. Co.

Opinion by Mr. Chief Justice Moore. No transcript of the testimony given at the trial has been brought up. The bill of exceptions, however, states that evidence was received tending to substantiate all the controverted allegations of the complaint and to the effect that the speed of the car had been lowered to about two or three miles an hour for the plaintiff to alight, and when he was doing so the car was suddenly started, causing the injury charged, and that, when he was hurt, there was on the porch of his home, near where he was injured, an electric light which illuminated such place; that testimony was also introduced tending to prove all the disputed averments of the answer and to the effect that the plaintiff was hurt at the usual place of receiving passengers upon — 95 — and discharging them from the defendant’s cars; that he was injured about 9:30 or 10 o ’clock at night when it was raining; and that at such place there was then no light. The court modified an instruction requested by the plaintiff’s counsel as here indicated, to wit: “The defendant being a common carrier of passengers for hire, it owes to its passengers the highest degree of care, prudence and foresight consistent with the practical operation of its road, or the utmost skill, diligence, care and foresight consistent with (the practical operation of its road, or the utmost skill, diligence, care and foresight consistent with) the business, in view of the instrumentalities employed and [the] danger naturally to be apprehended [and such carrier is held responsible for the slightest neglect against which skill, diligence, care and foresight might have guarded].” Additions were made to the instruction, as denoted-by the words embraced within parentheses, and that part of the language requested was omitted from the charge given, as indicated by the words included within brackets so displayed. The following requested instructions were also denied: “If you find that the car on which the plaintiff was a passenger was so nearly stopped that an ordinarily prudent person would have deemed it safe to alight therefrom, and while attempting to alight the plaintiff was thrown to the ground by the motorman in charge of the car suddenly starting it before the plaintiff had safely alighted, the plaintiff would be entitled to recover damages for the injury sustained, and your verdict should then be for the plaintiff for such sum under the evidence as you may deem the plaintiff entitled to in order to compensate him for the injury.” “The court further instructs you that it is not necessarily contributory negligence for a passenger to alight — 96 — from a moving street-car, and in considering the question of contributory negligence in this case, if you find that the defendant’s car was slowed down to a slow rate of speed, such as an ordinarily prudent person would deem safe to alight from, and the plaintiff then attempted to alight from such car, he would not be guilty of contributory negligence.” Exceptions were severally taken to the court’s refusal to give the instructions so requested. An exception was also saved to a part of the general charge which reads: “I instruct you that, if the place at which plaintiff alighted from defendant’s car, if you find that plaintiff did alight from said car, was so dark as to render it obviously dangerous for a person to attempt to alight at said point from said car while the same was in motion, then plaintiff would be guilty of contributory negligence in so attempting to alight, which would bar any recovery by him in his action. ’ ’ It is contended that errors were committed in the respects mentioned. It is argued by defendant’s counsel that, under the bill of exceptions herein, the alleged errors so assigned should not be considered unless- it can be legally asserted that the requested instructions which were denied were essential, and that the part of the charge which was challenged was an improper expression of the law under any view of the case. 1. In Raiha v. Coos Bay Coal & Fuel Co., 77 Or. 275 (149 Pac. 940), in discussing this matter, it is said: “When an exception is taken to the ruling of a trial court upon the admission or exclusion of evidence, so much of the testimony as will enable, the appellate court fully to understand the question involved must be copied in the bill of exceptions. If, however, an exception relates to the giving of an instruction which under the pleadings would have been an improper application of the rules of law to the case under any view that — 97 — might he taken, the error will be reviewed on appeal, though no testimony is incorporated in the bill of exceptions.” To the same effect, see, also, Parker v. Monteith, 7 Or. 279; State v. Jancigaj, 54 Or. 361 (103 Pac. 54); Willis v. Horticultural Fire Relief, 69 Or. 293 (Ann. Cas. 1916A, 449, 137 Pac. 761); State ex rel. v. Rider, 78 Or. 318 (152 Pac. 497). 2. It will be kept in mind that the bill of exceptions sets forth a brief summary of the testimony received. Such statement of the evidence was evidently relied upon by the respective parties, and it is sufficient to illustrate the legal principles involved. A bill of exceptions would become a very cumbrous affair if it were essential to set forth therein all the evidence received in order to determine the sufficiency of instructions the giving or refusal of which had been challenged by proper exceptions. The miles of law do not require the performance of vain things, and when a trial court in settling and allowing a bill of exceptions gives therein a brief synopsis of all the testimony received, such statement is adequate to a proper review of challenged instructions that have been given or denied. 3. Considering the exceptions in the order hereinbefore stated, the first requested instruction is evidently predicated upon the language of Mr. Justice Straup in Paul v. Salt Lake City R. Co., 30 Utah, 41 (83 Pac. 563, 565). If the court had given that part of the language so requested which reads, “And that the carrier is held responsible for the slightest neglect against which such skill, diligence, care and foresight might have guarded,” the question of plaintiff’s alleged contributory negligence would have been wholly eliminated. 4. However careless the defendant may have been, as alleged in the complaint, if the plaintiff’s heedless — 98 — ness conduced to Ms injury, it would bar a recovery of damages for the hurt he sustained, for in this state the doctrine of comparative negligence does not obtain, except in cases in which the relation of employer and employee exists. As that relation did not obtain in the case at bar, no error was committed in modifying or refusing to give in its entirety the first requested instruction. 5. The bill of exceptions contains all the instructions given. In one part of the charge the court, referring to the plaintiff, said to the jury: “If the defendant invited — if you should find from the facts in the case that he was to get off there, the gate was thrown open, and he was exercising ordinary prudence in getting off, even though the car was moving, if by reason of the quick and unexpected jerk of the car of the defendant be was thrown to the ground, not in the exercise of care which is required by the defendant as a carrier, and to which I shall call your attention — then the defendant would have been guilty of negligence in the act, and the plaintiff would be entitled to recover some damages at your bands.” It will be seen from the language last quoted that it fairly expresses the second requested, instruction. When a court clearly announces a rule of law as a guide to the jury to enable them, from a consideration of the facts relating to a branch of the case, to determine an issue, it is unnecessary to give a requested instruction, though it may not contain the exact language of a part of the general charge. No error was committed in denying his request. In another part of its general charge the court told the jury: “You are instructed that, if you find that the defendant, through its servants and agents, knowing the place at which the plaintiff desired to alight, opened the door — 99 — of its car and slowed its car down to a slow rate of speed and invited the plaintiff to alight, while the plaintiff was in the act of alighting from the defendant’s car, pursuant to such request and invitation, and the defendant, by its servants and agents, carelessly and negligently increased the speed of said car before the plaintiff had an opportunity of alighting safely, and that the plaintiff, by reason of the careless and negligent increase of the speed of the said car, received the injury alleged in the plaintiff’s complaint, then you will find a verdict for the plaintiff in such sum as will compensate' the plaintiff for such injuries sustained, unless you shall find by a preponderance of evidence that plaintiff was guilty of contributory negligence under the law as I shall explain it to you." 6. An author, in discussing the danger incident to endeavors to alight from a car in motion, observes: “If a passenger attempts to leave a moving car running at a high rate of speed, the attempt will be so obviously dangerous that he cannot recover for an injury occasioned thereby. It cannot be said, however, as a matter of law, that it is negligent to alight from a moving car or board it while in motion. The circumstances attending the act and the speed of the car make it a question of fact for the jury. Neither is the passenger bound to know that the place where he does alight is safe”: Nellis, Street Railroad Accident Law, 190. The rule thus announced is recognized by the court in the part of its charge last quoted. It does not appear from the pleading or from the summary statement of the testimony set forth in the bill of exceptions that the plaintiff was ill, infirm or burdened with impediments of any kind, and, being 18 years old, his attempt to alight from a car moving at the rate of speed of only two or three miles an hour would not have been negligence per se, as inferentially admitted by the court: Nellis, Street Railways (2 ed.), § 363. If the at — 100 — tempt to alight, under such circumstances, is made in the daylight, or at a place which is sufficiently illuminated at night, the rule stated would undoubtedly obtain. The part of the charge last repeated sets forth so much of the third requested instruction as was applicable to the issues and evidence involved, and no error was committed in denying such request. 7. The pleadings admit that the plaintiff was injured by falling upon a public highway. So far as disclosed, there was no defect in the place where the accident happened, except that it may reasonably be inferred that the street had been rendered slippery by the rain. The theory of the plaintiff was that an electric light on his father’s porch near the street illumined the place where the accident happened, while the defendant maintained that it was then dark at such place, and that the night was dark and rainy. It will be remembered that in the part of the general charge to which an exception was taken the court, referring to the place where the injury occurred, told the jury: If it “was so dark as to render it obviously dangerous for a person to alight at said point from said car while the same was in motion, then plaintiff would be guilty of contributory negligence.” The phrase “obviously dangerous,” as thus employed, imports a greater degree of hazard than would appear to a person of ordinary prudence. It is believed the extent of peril so indicated, as being manifest from an attempt to alight from a moving car, under the attending circumstances adverted to, renders the part of the charge so' challenged unobjectionable to the plaintiff on that ground. 8. Complaint is made because in the part of the charge under consideration the jury were not instructed that the plaintiff’s alighting from the moving car — 101 — must have been the direct and proximate cause of his injury, in order to defeat a recovery. The fourth exception is general, and did not call the court’s attention to the legal principle now insisted upon. No error was committed in giving the instruction thus challenged. It follows from these considerations that the judgment should be affirmed, and it is so ordered. Affirmed. Mr. Justice Bean, Mr. Justice Benson and Mr. Justice Harris concur.