Strang v. Oregon-Washington R. & N. Co.

Mr. Justice Burnett delivered the opinion of the court. 1, 2. It is settled in this state that when the corporate existence of a plaintiff corporation is put in issue, the allegation in that respect must be prayed; for want of which the plaintiff must fail: Holladay v. Elliott, 8 Or. 84; Goodale Lumber Co. v. Shaw, 41 Or. 544 (69 Pac. 546); Hartford Ins. Co. v. Central R. of Oregon, 74 Or. 144 (144 Pac. 417). The state of the record prevents a recovery by the insurance company. At the least the motion for a nonsuit ought to have been allowed as to that plaintiff. In considering that motion as it affects the plaintiff Strang, a brief résumé of the testimony is necessary. The track of the de [650] fendant company ran through his premises leading from The Dalles to Portland. He had a crew of seven men operating a hay baler, approximately 600 feet north of the track about one half mile east of the station at Rowena. He himself with another employee was hauling hay from the north side of the railway and west of the station to his house situated some distance south of the track. An extra freight train going west passed along about 10:30 o’clock in the forenoon of the day in question, and about that time the employees at the baler discovered a smoke about a quarter of a mile west of where they were at work, apparently on or near the defendant’s right of way but not on Strang’s premises. At the time the wind was blowing principally from the east towards the west, but. was fitful and changeable. There was testimony to show that Strang himself saw the smoke about half-past 11 while he was on his way to the house with a load of hay. During all this time the smoke increased in volume considerably. All the men quit work at noon for dinner, being absent about an hour. In the meantime the wind had changed and was blowing from the west carrying the fire towards the machinery and hay which was afterwards consumed. When they returned from the noon meal Strang and all his men apparently used every effort at their command to extinguish the fire but without success and the property was burned. The defendant contends that the conduct of Strang and his employees amounts to such a degree of contributory negligence as to prevent the plaintiffs from recovering and that it was the duty of the court as a matter of law to direct a judgment of nonsuit in the first instance and upon the question being renewed at the close of the evidence to instruct the jury to find a verdict for the defendant. [651] 3,4. The standard by which diligence or negligence is to be judged is the conduct of a reasonably prudent man under the conditions disclosed by the evidence, and a court is not justified in directing a nonsuit unless no reasonable conclusion can be drawn from the evidence except that the plaintiff was remiss in his duty under the circumstances. Ordinarily and almost uniformly this is a question of fact for the jury. In this case one man on seeing the smoke of the fire at its beginning might consider it to be his duty to go at once and put it out. Another thinking that the prevailing wind would carry the fire away from his property might not feel called upon to attend to it.. We cannot say as a matter of law which would be right. It was for the jury to determine whether Strang acted as a reasonably prudent man would in such a juncture: Palmer v. Portland Ry., L. & P. Co., 56 Or. 262 (108 Pac. 211, 59 Am. & Eng. R. Cas. (N. S.) 68); Chicago etc. R. Co. v. Pennell, 94 Ill. 448; Franey v. Illinois Central R. Co., 104 Ill. App. 499; Haverly v. State Line & S. R. Co., 135 Pa. 50 (20 Am. St. Rep. 848, 19 Atl. 1013); St. Louis & S. F. R. Co. v. League, 71 Kan. 79 (80 Pac. 46). 5. This rule is not at variance with the following authorities cited by the defendant: Eaton v. Oregon R. & N. Co., 19 Or. 391 (24 Pac. 415), was a case where the plaintiff saw the fire actually burning his grass but made no effort whatever to extinguish the flames saying that it was not his business but that of the railroad company. In Richmond v. McNeill, 31 Or. 342 (49 Pac. 879), the court said that it was the duty of the plaintiff to use proper endeavors to prevent the destruction of his property if he could do so by slight effort and without danger to himself, but further held that when different deductions may reasonably be [652] drawn from the testimony they should be left to the jury. To the same effect is Hawley v. Sumpter Val. Ry. Co., 49 Or. 509 (90 Pac. 1106, 12 L. R. A. (N. S.) 526). The plaintiff Strang was therefore entitled to go to the jury with his case. 6. It appears by his complaint, however, that he had insured 35 tons of baled hay, 90 tons of loose hay, and a horse-power, chain and bridge; that after the fire the insurance company paid him as the pleading states “$1220.00, the value of the property so destroyed.” Not only so but he also avers that he “assigned and turned over to the insurance company his claim against said Oregon-Washington Eailroad & Navigation Company to the extent and amount of said insurance, to wit, the sum of $1220.00. ” ' Thus it is disclosed that he was paid the full value of the insured chattels and assigned to his co-plaintiff his chose in action therefor. Consequently he has no interest in that property and no claim for damages for its destruction after he has been paid in full and has sold his cause of action to another. It is without dispute though that he lost the following items of property which with their values are here set down: Two sets doubletrees and neck-yoke.......... $ 7.00 160 feet % inch cable....................... 10.40 100 feet rope............................... 4.00 4 hay press springs and 2 blocks............ 6.00 500 lbs. No. 15 baling wire.................. 17.00 4 hay forks................................ 3.40 1 derrick.................................. 35.00 Grass and trees destroyed................... 20.00 Total......$102.80 7, 8. It is unquestioned too that Bourhill was the owner of a fourth interest in the loose hay, the value of which is fixed at $247.50, and of a wagon worth $40. [653] The testimony fixing these values is undisputed, and it is without question that Bourhill assigned to the plaintiff Strang the former’s claim for the loss. The jury has determined the fact to he that the defendant was to blame for the destruction of this property. The plaintiff Strang is entitled to recover for his uninsured property and on the demand assigned to him by Bourhill, totalling $390.30. The measure of damages in such case is the reasonable value of the property destroyed. The loss of profits owing to the subsequent decline of the hay market was not the proximate result of the defendant’s negligence and cannot be the basis of a'recovery in this action. The situation then is that we have before us in the record authentic data enabling us to determine the ultimate rights of the parties according to Section 180, L. O. L., empowering the court to give judgment for or against one or more of several plaintiffs and for or against one or more of several defendants and, when the justice of the case requires it, to determine the ultimate rights of the parties on each side as between themselves. The judgment will therefore be modified by allowing the plaintiff Strang to recover $390.30, and the costs and disbursements of the Circuit Court. The cause will he remanded with directions to enter this judgment for Strang and one of nonsuit in favor of the defendant against the plaintiff North British & Mercantile Insurance Company. The defendant will recover costs and disbursements in this court. Modified and Remanded. Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Benson concur.