SKOTTOWE v. OREGON SHORT LINE & UTAH NORTHERN R. Co.

MULLEN : OREGON SHORT LINE & NORTHERN R. Co.

(Oregon Supreme Court, June 18, 1892.)

Defective Premises-Personal Injuries-Evidence as to Subsequent Repairs.—In an action for personal injuries evidence that subsequent to the injury the premises alleged to have been defective were repaired, is competent for the purpose of showing ownership or control over the premises. Approach to Boat-Landing Maintained in Street -Defect Liability of Railroad Company.-The fact that an approach to a boat landing erected by a railroad company is maintained in a public street does not relieve such company from liability for personal injuries caused by the defective condition of such approach.

Contributory Negligence-Passenger Going Aboard Boat in the Evening. It is not contributory negligence for a passenger to endeavor to board a boat in the evening instead of waiting until the morning, where it is shown that it was the custom of the railroad company running such boat to receive passengers in the evening and allow them to sleep aboard upon the payment of an extra charge. If the approach to such boat is insufficiently lighted and is not in a safe condition, the railroad company is liable for any injuries received on account thereof.

Personal Injuries-Excessive Damages.-A verdict for $10,000 on account of personal injuries rendering the plaintiff unable to walk and permanently crippling him and subjecting him to great pain and suffering during his life, is not excessive.

APPEAL from Wasco Circuit Court.

Action to recover for personal injuries. Plaintiff had Judgment for $10,000. Also action to recover for the death of plaintiff's decedent. Plaintiff had judgment for $1,500. The two cases were heard together on defendant's appeals, and both affirmed.

W. W. Cotton, Zera Snow, and Wallace McCamant, for appellant.

Alfred S. Bennett, for respondents.

LORD, J.-These actions are brought by Jane Skottowe in the one case, and by J. T. Mullen, as administrator of the estate of Nicholas Skottowe, in the other case,

Case stated. against the defendant, to recover damages resulting from a fall by Jane Skottowe and her deceased husband from an elevated way leading from The Dalles City to the defendant's boat landing; which fall caused serious injury to Jane Skottowe, and the death of her husband. The liabil ity of the defendant is predicated on the ground that the

defendant was negligent in failing to keep in repair the elevated way or bridge, from which the plaintiff and the deceased fell, and were injured, and in failing to provide such place with proper lights. The answer of defendant put in issue all the material allegations of the complaint, and further alleging that the elevated way or bridge causing the injury and death was not the property, or in the possession, or under the control, of the defendant, and, as a separate defense, that the plaintiff and her deceased husband were guilty of contributory negligence. The facts are substantially these: The plaintiff and her deceased husband were citizens of Ireland, travelling in this country with the double purpose of visiting a son who resided in the state. of Wyoming, and such places as would interest them or contribute to their pleasure. It would seem that they had secured a round trip ticket from Portland to The Dalles, and return, and that they had come up to The Dalles, by railroad, with the intention of returning to Portland by the river, on one of the boats of the defendant, for the purpose of obtaining a more complete view of the Columbia river scenery. The boats of the defendant were fitted up with staterooms and other adjuncts for the comfort and accommodation of its passengers. As the hour at which the defendant's boats were accustomed to leave in the morning was early, -7 o'clock, the company, for its own advantage, and for the convenience of its passengers, allowed them to come on board of its boats at night, and to sleep there. For this accommodation the defendant charged and received a specified consideration, and by reason of it its passengers were saved from the necessity of arising at an inconvenient hour in the morning in order to reach the boat. The plaintiff and her husband reached The Dalles some time about the middle of the day, and during the afternoon went down to the wharf boat, as it would seem, for the purpose of acquainting themselves with the way to the boat's landing, and ascertaining what arrangements were necessary to be made to get on board of the boat. The agent of the defendant informed them at the office that they could come on board of the boat that night, as soon as it came in, and sleep there until morning, so that they would be on the boat at its hour of starting. Concluding to avail themselves of this accommodation, they returned up town, and after getting a meal at a restaurant, and walking and looking around until the time had come for the boat to arrive, they started down to its landing. It was after dark when the defendant's boat came in, but, owing to the fact that it had a barge in tow, it proceeded up the river, under slow bells, past its

landing place, to a point on the river about opposite the place where the accident occurred, for the purpose of landing the barge, when it turned back to make its landing. Her lights were lit, and it was while some of these things were Occurring that the accident happened. The landing place of the defendant's boat is some distance below the inhabited portion of The Dalles, and is reached by a long elevated incline and narrow roadway which passes over Mill creek by means of a bridge. One portion of this roadway, at the point where it leaves the inhabited portion of The Dalles, is occupied by the defendant's railroad tracks, and leads to its shops, while the other portion of it gradually inclines, and leads to its wharf or boat landing. These two ways, at the point where the injury occurred, are connected, and rest on the same timbers. The situation is difficult to describe, but it is shown on the photographic exhibits. These different ways were originally built by the Oregon Steam Navigation Company, the defendant's predecessor in interest, for the purposes specified, and since then have been constantly used as a means of access to and from its shops and the landing place of its boats. At different times the company has rebuilt and repaired this roadway, raised and changed it, and exercised various acts of control over it. The place where the accident occurred, and over which the elevated roadway or bridge crosses Mill creek, is a short distance below the last building in the inhabited portion of the city. The land under the bridge was doubtless a public street at the point of the accident, as it seems to have been platted as such, but the city has never opened it as a street, nor exercised any control or ownership over the elevated roadway or bridge. "There was no evidence," the record says, "in the case tending to show that Dalles City, or any one except the railroad company, and its predecessors in interest had exercised any control of the bridge at the place where the accident occurred, or had ever operated or repaired the same." The bridge is from twelve to twenty feet from the ground, which is of a rocky and uneven character, and along the bridge there has always been a "rail running," which a short while before the accident, got loose and came off, and never was replaced until after the injury occurred.

The circumstances of the fall from the bridge are thus related by the plaintiff: "We had passed the town and got to the way leading to the boat, it being then nearly dark. We suddenly fell down a height. The fall rendered me unconscious. I was aroused by my husband's calls for help. I be came unconscious again, and then got conscious again when the men came to carry me up from where I had fallen.

Shortly before the accident we remarked to each other on the want of light. We were feeling our way cautiously along, immediately before the accident. My husband's calls for help at the place of the accident was the first thing I knew after the accident, while we were lying on the stones near the river." The injury to the husband of the plaintiff was of such a character as to cause his death a day or two afterwards. The injury to the plaintiff confined her to bed for many months, and, the evidence indicates, will render her subject perhaps to much suffering, and a cripple for the remainder of her life. From these facts and circumstances it seems evident that the plaintiff and her deceased husband, while passing over the bridge or elevated roadway, seeing the boat out in the river, which was lighted up, and supposing that they had reached the landing, walked through the opening occasioned by the want of railing, and were precipitated upon the rocks below.

Upon this state of the facts the most vital point of the contention for the defendant is that the duty of a passenger carrier to provide reasonably safe approaches to

lic street.

a landing place or station is confined only to the Defective apimmediate vicinity of its landing or station, and to proach-Pubapproaches on its own ground or right of way, and that, as the facts show that the land over which the bridge was constructed, and where the accident occurred, was a public street, the defendant was under no obligation to keep such bridge in repair or properly lighted.

Evidence as

There are other questions connected with this upon which error is alleged, and to which we shall advert at the proper time. There is, however, a preliminary question upon the evidence, to which an exception was to repairs. taken, that must be first disposed of. One Mr. Allen was called as a witness for the plaintiff, and testified that he was in the employ of the defendant, and engaged in carpenter work; that about two days after the accident, he repaired the bridge, by replacing the missing railing. He was then asked the question, "Under whose direction?" To this question the defendant objected as incompetent and immaterial, whereupon plaintiff's counsel stated in open court, and in the presence of the jury, that he did not offer the testimony for the purpose of showing negligence, but for the purpose of showing acts of ownership and control over the bridge, and the court ruled that the evidence should be received for that purpose, and for that purpose only. The witness then answered that he was instructed by Mr. De Huff, the company's foreman or superintendent at the shops. It is conceded that this evidence is hardly sufficient to show

that Mr. De Huff had authority from the railroad company to make the repair in question but no proper means were taken to get rid of this aspect of it.

As already disclosed, this evidence was offered for the purpose of showing that the bridge or place where the injury was received was under the control of the defendant. As applicable to this object, no objection is made, if the evidence shall be restricted exclusively to this purpose. It is not the fact that repairs were actually made by the defendant, or the inference of control or ownership sought to be drawn, to which objection is urged, but that such evidence is inadmissible for that purpose unless the jury were instructed or expressly cautioned by the court when it was received, that it could not be considered by them on the question of negligence. Hence, it was argued, notwithstanding counsel for the plaintiff stated that the evidence upon objection was only offered to prove the control of the defendant of the place of injury, and not to prove negligence, and the court ruled, in the presence of the jury, that it would only be admitted for the purpose of showing control, that this statement and ruling were not enough to remove the objection for incompetency, unless the court went further when the evidence was received and instructed or cautioned the jury that they could not take it into consideration upon the question of negligence on the part of the defendant; otherwise the jury would be authorized to consider such evidence as proof of negligence, or to treat it as a link in the chain of such proof, contrary to the well-established rule that subsequent repairs are not competent for the purpose of proving antecedent negligence. That this rule is now to be regarded as settled law in a proper case is not controverted, as the authorities in support of it fully indicate. Morse v. Minneapolis & St. L. R. Co., 30 Minn. 465, 11 Am. & Eng. R. Cas. 168; Terre Haute & I. R. Co. v. Clem, 123 Ind. 15, 42 Am. & Eng. R. Cas. 229; Nalley v. Hartford, 51 Conn. 524; Hudson v. Chicago & N. R. Co., 59 Iowa, 581, 8 Am. & Eng. R. Cas. 464.

But the principle seems equally as well established that, while evidence of additional precautions or subsequent repair is not competent for the purpose of proving antecedent negligence, it is competent for the purpose of showing that the place where the injury was received was under the control of the defendant, who may require the court, if he chooses, to restrict it to that point by a proper instruction. As the court said, in City of Lafayette v. Weaver, 92 Ind.479, such evidence" was not admissible to prove negligence on the part of the city, the question as to which was to be determined by