Adams v. Portland Ry., L. & P. Co.

Mr. Justice Harris delivered the opinion of the court. 1. The defendant takes the position that the facts pleaded in the complaint and testified to by the plaintiff do not constitute actionable negligence and that the instant case is controlled by Goss v. Northern Pacific Ry. Co., 48 Or. 439 (87 Pac. 149). The decision in that case was rested upon the ground that there was no proof of any fact or circumstance attending the accident from which an inference of negligence could be drawn and that therefore the negligence complained of was left wholly and entirely to inference and presumption from the mere happening of the accident. In Christensen v. Oregon Short Line R. Co., 35 Utah, 137 (99 Pac. 676, 18 Ann. Cas. 1159, 20 L. R. A. (N. S.) 255), also relied upon by the defendant, the conclusion reached by the court was predicated on the theory that there was no evidence of any defect in any appliance or instrumentality used by the company unless such defect could be inferred from the fact that the door closed while the passenger was in the act of alighting from the train after passing through the open door. If, in the instant case, the mere happening of an accident constituted the only evidence of negligence then the plaintiff could not prevail. However, the plaintiff offered evidence of more than the mere happening of the accident; she testified to the attendant circumstances which, if true, constitute actionable negligence. The door was designed to swing either way so that passengers could pass through it upon entering or when leaving the car. The door was installed for the use of the plaintiff and all other passengers and she had the right to use it for the purpose for which it was installed. Moreover, she pushed on the door in response to an express invitation of the defendant. If [607] the door worked hard as the plaintiff says it did and if she could not open the door except by pushing it as she claims she did then it is obvious that the door was an improper one and that the defendant failed to perform the duty required of it by the law. The defendant made no attempt to show that the spring was examined after the accident and found to work properly. If the testimony of the plaintiff is to be believed then in the very nature of things either the spring or the door itself was defective: McCarty v. St. Louis S. Ry. Co., 105 Mo. App. 596 (80 S. W. 7). It was not error for the court to refuse to grant the motions for a nonsuit or to decline to direct a verdict for the defendant. 2. The court did not commit prejudicial error in refusing to instruct the jury upon contributory negligence. The defendant did not plead contributory negligence as a defense. The pleadings made no issue upon that question. Nor was the evidence such as to entitle the defendant successfully to claim that it was injured by the refusal of the court to charge the jury upon contributory negligence, even though it be assumed, without deciding, that an instruction upon contributory negligence might sometimes be proper even in the absence of an answer pleading it as a defense: Dunn v. Orchard Land Co., 68 Or. 97, 103 (136 Pac. 872). When the verdict is examined in the light of the instructions actually given it will plainly appear that the jury must have understood that the plaintiff could not recover unless she showed that the defendant was negligent and that such negligence was the proximate cause of the injury. 3, 4. The complaint accuses the defendant of negligence because the crew in charge of the car failed to open the door so that the plaintiff could alight from the car. It is true that, stated generally, the carrier is [608] under no duty to assist a passenger in alighting. But there are exceptions to this general rule: 1 Nellis on Street Railways (2 ed.), § 304; as where there is some unusual danger or difficulty arising from the means afforded for alighting: 6 Cye. 611; 10 C. J. 932. Strictly speaking the plaintiff was not injured while alighting from the car. She was attempting to go from the main room to the vestibule so that she could then alight from the car. According to the testimony of the plaintiff the motorman had knowledge of the condition of the door ; he was made aware of the difficulty which she was experiencing in attempting to open the door; and instead of assisting her to open the door the motorman instructed her what to do and she followed his instruction. Assuming the facts to be as testified to by the plaintiff it was not error to permit the jury to consider the second specification of negligence. On the whole record we think the defendant had a fair trial and that it was not prejudiced by anything occurring at the trial. The judgment is therefore affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Burnett concur.