Woodward v. O. R. & N. Co. , 18 Or. 289 ( 1890 )

Strahan, J.

The question presented by this record for our consideration arises out of the exception taken by the appellant to the charge of the court, and to the refusal 01 the court to give an instruction asked by the defendant. Amongst other instructions the court gave the jury the following, to which the defendant duly excepted:

3. The jury, in determining this question of negligence, should consider all the facts presented by the evidence. They should take into consideration the rules of the defendant company, the situation of the Celilo station, the grade of the road, the curves, the obstructions to the view of an engineer bringing a train from either direction to the statfon, the situation of the switches, the weight of the train which the plaintiff was bringing in.

4. The jury should also take into account the fact, undisputed in the testimony, that the conductor and engineer of the passenger train, on the night of the accident, had no information of the delay of the defendant’s train, or of the extension of his time to 7:10 o’clock.

5. The jury will, upon a consideration of the whole evidence, say whether the defendant omitted anything which, had it been done, might have prevented the accident, or did any act that ought not to have been done which contributed to the accident.

6. The jury must consider the acts or omissions of any train dispatchers as the acts or omissions of the defendant.

7. It is the duty of a railway corporation to prescribe a system of rules and regulations for the government and management of its trains and employes, and its business, and it is for the jury to determine whether or not such rules and the conduct of the defendant were sufficient to reasonably guard against damage in this case. And when the time-table was annulled by the train dispatcher at The Dalles, you will consider whether the defendant used all reasonable means and precautions to prevent accident. It was the duty of the dispatcher, in all cases of doubt, to take the safe side, as by rule 55 of the company.

Instructions numbered three and five present somewhat analogous questions, and may be considered together. The point of objection to these instructions is, that they submit to the jury questions entirely outside of and beyond the allegations of the plaintiff’s complaint, and apparently leave it to the jury to find as they may think proper, regardless of the particular acts of negligence charged in the complaint. And this leads us to the inquiry whether or not the plaintiff must allege the particular acts of negligence constituting his cause of action, and then confine his proof to those specific allegations. Orir Code, § 66, requires the complaint to contain a plain and concise statement of the facts constituting the plaintiff’s cause of action, and one of the great objects to be attained by this enactment was to compel the plaintiff to place upon the record the specific and particular facts which he claims entitles him to recover. The field of inquiry is thus narrowed, and the defendant is enabled to come into court advised beforehand of the particular facts he must come prepared to contest. Does this rule apply to an action of negligence? In Heilner v. Union County, 7 Or. 84, this court held in an action for negligence in allowing a bridge to be and remain out of repair, that the facts constituting the negligence should be averred. So it was held in Lakin v. The O. P. P. R. Co., 15 Or. 220, that a defect of a car or an engine could not be shown in an action where the damage was alleged to have occurred through the negligence of the employes, and the defects of the engine or machinery were not relied upon as a cause of action. Waldhier v. H. & St. Joseph R. R. Co., 71 Mo. 514, is more directly in point. It was there held that where the allegation in a petition against a railroad company -is that the plaintiff received the injuries complained of through the negligence of the company in having and using defective machinery, and the running and managing its railroad and cars, and the proof was that the injury was occasioned by a broken frog, that the plaintiff could not recover. To the same effect is Meyer v. Atlantic & Pacific R. R. Co., 64 Mo. 542. In that case the court said: ’‘It is only by statutory enactment that the defendant is required to sound the whistle or ring a bell eighty rods distant from a point where the railroad crosses a public road, and if the defendant was intended to be made liable on account of this neglect, such intention should in some manner have been expressed in the petition, either by statement of the facts which under the statute created the liability, or by some appropriate reference to the statute itself. ” So in Edens v. The H. & St. Joe R. R. Co., 72 Mo. 212, it was held that whatever was the real ground of complaint should be stated in the petition. Hence, in an action against a railroad company to recover for injuries alleged to have been sustained through the company’s negligence, if the negligence consisted in having a defective sand-box on the engine and in keeping a defective frog in the track, the petition should not charge negligence hi running the cars. So in Field v. The Chicago, Rock Island & Pacific R. R. Co., 76 Mo 614, the court said: /The jjlaintiff must state the facts which constitute his cause of action. He cannot state one and prove another; nor, if he states none, can he supply the defects m his petition by evidence at the trial.” So, also, in the Chicago, B. & Q. R. R. Co. v. Harwood, 90 Ill. 425, it was held in an action against a railroad company to recover damages for the killing of plaintiff’s intestate, through negligence and carelessness in the managing and running of a train of cars, the declaration should, show in what such negligence and carelessness consisted, and not charge the same in general terms without disclosing any specific acts or omissions. And Thomas v. The Georgia Railroad and Banking Co., 40 Ga. 281, holds that a plaintiff must recover on the particular acts oi negligence charged in the complaint, and that other acts of negligence, not alleged, cannot be made the basis of recovery. So in Long v. Doxey, 50 Ina. 385, it was held that a right to recover on a complaint charging negligence in the use of defective machinery could not be supported by proof of negligence in employing unskillful men to run the machinery. So also in the Ohio & Mississippi R. R. Co. v. Selby, 47 Ind. 471, in an action for negligence, it was held that an act, the doing of which was complained of, and that such act was negligently done, must be alleged ; also that when the act complained of was sufficiently stated, it was only necessary to aver that such act was negligently done, without setting out in detail the particulars of the negligence. It is true in some jurisdictions it seems to be held sufficient to allege generally that the injury complained of was carelessly and negligently inflicted upon the plaintiff, or that by reason of the carelessness and negligence of the defendant, the plaintiff was injured ; but this mode of statement has never been sanctioned or approved in this State, is at variance with the plain requirements of the Code, and would give the defendant no notice of the acts claimed to be negligent, so that he might come prepared to meet them.

Having reached the conclusion that the acts of the defendant which are relied upon as a basis of recovery and which must be the proximate cause of the injury, must be alleged in the complaint, it follows as a necessary consequence that the evidence on the part of the plaintiff must be directed to the proof of those facts, and the instructions oi the court must be confined to the allegations and proofs. It is the law arising upon these allegations and upon the evidence submitted to sustain them which the court is to expound to the jury. It is upon the facts thus ascertained and the law applicable to them which will authorize a verdict. Such, in effect, was the ruling of this court in Bender v. Bender, 14 Or. 353, and we see no reason to depart from it.

Turning now to instructions three and five, it will be seen th at the field for inquiry for the j ury is enlarged and extended very far beyond the plaintiff’s allegations or any evidence in the case upon which they could possibly be based. We have held it to be error for the trial court to give to the jury instructions, however correct as abstract propositions of law, if not based on evidence. Breon v. Henkle, 14 Or. 494; Roberts v. Parrish, 17 Or. 583. These instructions were therefore erroneous for both of the reasons suggested— that is, they were outside of the plaintiff’s allegations, and therefore too broad in submitting to the jury, or in at least indicating to the jury, that they might find other negligence than that alleged in the complaint, and also in submitting abstract propositions of law to the jury. With such instrucoions before them the jury might well have considered, and were instructed to say, whether the defendant omitted anything which, had it been done, might have prevented the accident, or did any act that ought not to have been done which contributed to the accident, whether such act was charged in the complaint as negligence or not.

Instruction seven was also erroneous, for the same reasons. There was no allegation in the complaint that the defendant had neglected to prescribe a system of rules and regulations for the government and management of its trains and employes and business. No doubt it is bound to prescribe such rules, and a failure or neglect to do it, whereby an injury occurs, would render it liable; but before such question of negligence can properly be tried before a jury the act of negligence must be alleged in the complaint, and it must appear that it was the proximate cause of or produced the injury.

This opinion might properly end here,, but inasmuch as the cause must be remanded for a new trial, it may be proper to say that I have examined this record carefully for some proof of negligence on the part of the defendant which might properly have been submitted to the jury, and upon which instructions in relation to negligence might properly have been predicated, • but I have been unable to find any such proof in the record'—unless it was also coupled with evidence which established contributory negligence on the part of the plaintiff, which would necessarily have defeated a recovery.

The plaintiff’s counsel argued here that having extended the time of train No. 7, which was the plaintiff’s train, to reach Celilo, it was bound to notify the conductor of train No. 2, which was the east-bound passenger train, of such change. Whether, under the circumstances, the plaintiff ought to have given train No. 2 such notice, we do not think it necessary to determine, for the reason that such want of notice to that train in no manner contributed to the injury. The plaintiff had such notice, and then run his train past Celilo, where the collision occurred. If the collision had occurred east of Celilo, before 7:10, a different question would have been presented. He also disobeyed or disregarded the signals that were given him at Celilo to stop. In any view that could be taken of this evidence, this conduct on the part of plaintiff contributed to the injury,—in fact, was its sole cause. If the plaintiff had either heeded his instructions or the signals given to him, a collision was impossible.

Lot the judgment of the court below be reversed and the cause be remanded for a new trial.