Nickson v. Oregon-American Lumber Co. , 127 Or. 326 ( 1928 )

Former opinion adhered to on rehearing November 27, 1928. ON REHEARING. (271 P. 986.) Defendants Oregon-American Lumber Company and Carl Davidson are the appellants. They have presented a very pungent petition for rehearing. Their petition does not raise any new question but is a direct attack on the conclusions and reasoning of the opinion heretofore filed herein: 266 P. 254. The alleged grounds for rehearing are presented under five points. Four points, however, diverge from the central contention expressed in this language: "There was no evidence sufficient to be submitted to the jury of any negligence on the part of the appellants." Appellants contend that defendant Domnisse was not directed to move the speeder belonging to appellant Oregon-American Lumber Company under the immediate charge and control of defendant Carl Davidson, who was an agent and officer of defendant Oregon-American Lumber Company. From this statement appellants argue the four different reasons for which they request a rehearing. The rehearing was granted and the case reargued but no new authorities were presented. The case has been thoroughly considered again, discussed in conference and the court adheres to its former decision. The argument of appellants is based mainly upon questions of fact. Our Constitution prescribes:

"In actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively saythere is no evidence to support the verdict." Art. VII, § 3c.

Appellants seem to recognize that there is some evidence, for they base their points for a rehearing not upon the language of the Constitution but upon this language: "There was no evidencesufficient to be submitted to the jury of any negligence on the part of appellants." This statement admits that there was some evidence. In the minds of the appellants it was not sufficient to be submitted to the jury. This matter was thoroughly considered, correctly decided and aptly stated in the former opinion.

Some material evidence in behalf of plaintiff is as follows:

"Q. Mr. Domnisse, * * did you get any signal from Mr. Davidson to run back? A. Yes, I got a signal — what apparently was a signal by the hand — I got two of them."

On cross-examination Mr. Domnisse testified in part as follows:

"Q. Well, Mr. Domnisse, as I understand you, then you were not paying any attention to Mr. Davidson or the Inman-Poulsen speeder at the time — A. (Interrupting.) Not until this lady reminded me of it; then is when I looked up and say (saw) these signals.

"Q. * * How many signals, if any, did you see, given by Mr. Davidson, yourself? A. Two.

"Q. These two signals that you saw and which you say were given, how were they given — in what manner? A. Like this.

(Illustrating and indicating, by a movement of the right arm.)

"Q. The signal was given as you have shown to the jury by an upward movement of the arm? A. Yes, by an upward movement of the arm; he was standing this way (illustrating). He was down there and I was up here, and he brought his hand around like this."

The witness, who was one of the defendants, then illustrated to the jury just the nature of the signal given him by the defendant Davidson, the agent and officer of the defendant Oregon-American Lumber Company. Thus we have not only the testimony of Domnisse to the effect that he was signaled to advance but also his evidence that he did not observe the signals until a lady on the car with him directed his attention to it and the further evidence of the illustrations to the jury given by the defendant Domnisse. The jury in passing upon the question had something more than the mere testimony from the lips of Mr. Domnisse. The jury must have found that defendant Davidson actually signaled to Domnisse to bring the car on following the Inman-Poulsen speeder. This was substantial evidence. Plaintiff was not a trespasser. She was an invitee and the appellants as well as the other defendants owed her reasonable care to avoid doing her injury.

We think the other opinion sufficiently discusses the salient points in the case. The other matters raised in the petition for rehearing grow out of and depend upon the contention that there was no evidence of a material nature that Domnisse was directed by the appellants to move the speeder. Appellants argue that they cannot be liable unless Davidson consciously directed Domnisse to move the speeder as he did. We must determine what Davidson did from a description of what transpired at the time and place. The jury had this all before them, including Mr. Davidson's testimony. There was evidence that Davidson directed Domnisse to move the car. The jury was the judge of what Davidson intended to do by his gestures or signals. The jury has decided that question.

Appellants contend that there was no evidence that a clearance was given the Inman-Poulsen speeder by appellant Oregon-American Lumber Company. The pleadings practically admit that a clearance was given. The further and separate answer of defendant Oregon-American Lumber Company alleges:

"That the Inman-Poulsen Lumber Company is likewise engaged in the operation of a logging camp in the vicinity of the logging camp of this defendant, Oregon-American Lumber Company, in Clatsop County, Oregon, and has also constructed and operates a logging railroad from its camp to a connection with the logging railroad of the defendant, Oregon-American Lumber Company, and that by mutual agreement between the said Oregon-American Lumber Company and Inman-Poulsen Lumber Company, said Oregon-American Lumber Company has a right to operate its logging trains over the logging railroad of the Inman-Poulsen Lumber Company and the said Inman-Poulsen Lumber Company has a right to operate its logging trains over the logging railroad of the Oregon-American Lumber Company, both of said rights are without charge and without unnecessary inconvenience to the owner of said line; that neither said Inman-Poulsen Lumber Company nor said Oregon-American Lumber Company is a common carrier of freight or passengers over said logging railroads and said logging railroads are maintained and operated solely for the use and benefit of said lumber companies, and for the purpose of enabling said companies to transport logs from their respective logging camps to their respective mills for the purpose of manufacturing same into lumber and for no other purpose."

The evidence does show that that speeder stopped at the logging camp of the Oregon-American Lumber Company for that purpose. It also shows that the operator of that speeder came out and proceeded on towards Keasey after going into the office of the Oregon-American Lumber Company as aforesaid. The jury was justified in inferring from that as well as from the pleadings that the clearance was obtained. We cannot for a moment assume that the appellant Oregon-American Lumber Company would permit the Inman-Poulsen trains or speeders to pass down the track to Keasey where there was no siding or passing track without a clearance. To do so would be gross negligence. The Oregon-American Lumber Company itself pleads that this interchange of traffic was carried on regularly. The fact that the clearance was given is hardly denied, except as a flimsy technicality.

The use of the railroad belonging to the Oregon-American Lumber Company cannot be said to have been gratuitous. The excerpt from the appellant Oregon-American Lumber Company's answer clearly shows that it gave to the Inman-Poulsen Company the right to use its own track for the privilege of using the track of the Inman-Poulsen Company. There was a valuable consideration given to the Oregon-American Lumber Company for the use of its tracks by the Inman-Poulsen Lumber Company. The relation is very similar to an exchange of properties. In its argument on rehearing here appellant Oregon-American Lumber Company attempted to draw a distinction between the logging trains and the speeders. In that argument it was admitted that the companies exchanged the use of their several tracks. We do not think there is any merit in the contention that any other relation existed between the two companies with reference to speeders than that which obtained with reference to logging trains.

The evidence clearly shows that the employees of the companies used either the logging train or the speeder for transportation in and out of the logging camps. There was no other way for them to get to the logging camps or out to the city. Under these circumstances appellants are not relieved from liability because plaintiff paid no fare. In a very true sense it can be said that employees, including plaintiff, who is the wife of an employee, paid their fare by their services to the company. It was necessary for the company to provide a means for their employees to get in and out of the logging camps in order to have their services. Transportation, therefore, may be looked upon as a part of the payment for the services of the employees and the members of their families.

We deem it unnecessary to further discuss the questions raised by the petition for rehearing. They were all covered amply by the former opinion, which is adhered to. FORMER OPINION ADHERED TO.