Citation Numbers: 64 Or. 534, 131 P. 299
Judges: Bean
Filed Date: 4/1/1913
Status: Precedential
Modified Date: 7/23/2022
delivered the opinion of the court.
At the close of the plaintiff’s case,, defendant’s counsel moved for a nonsuit, and assigns the refusal to grant the same as error. It is the contention of defendant that the plaintiff knew that the'pile of lumber was there, and that he could have seen the same if he had made any effort to observe it, or had used reasonable care on his part.
“I can undoubtedly, in exercise of my rightful liberty, do generally with my property, within its own orbit, what I will; but, if I so wield it as to impinge upon the rights of others, then I am liable for the damage so produced. * * Thus I may dig pits at my pleasure on my land; but I will nevertheless be liable if any person having a right or even permission to enter the land falls into one of these pits and is hurt.”
In Whartons Law of Negligence, (2 ed.), Section 437, it is said:
“If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be regulated and governed, he is bound to perform it in such manner that those who are rightfully led to a course of conduct or action, on the faith that the act or duty will
“An open, visible risk is such an one as would in an instant appeal to the senses of an intelligent person. Wood, Mas. & Ser. 763. It is one so patent that it would be instantly recognized by a person familiar with the business. It is a risk about which there can be no difference of opinion in the minds of intelligent persons accustomed to the service. It is not expected that the servant will make close scrutiny into all the details of the instrumentalities with which he deals. His employment forbids that he should thus spend his time. If the rule were otherwise, the management of a great railway system would be needlessly slow. The servant is expected to observe such objects only, in the absence of notice, as would in an instant convince him of their danger. It is not expected of a switchman that he should carefully measure the distance between a switch target and the rail.”
When a defense of contributory negligence is claimed as a ground for a nonsuit, as in this case, it must appear
The plaintiff was performing a service for the defendant in going after the loaded car. The engine was being run in on the spur track for the purpose of taking out a car of lumber from defendant’s mill; therefore plaintiff was rightfully upon the premises and engaged in performing his duty. He had a right to expect that the yard was reasonably free from snares or unseen and dangerous traps, so that a car could pass safely over the track in accomplishing the purposes for which the spur was designed. The evidence is to the purport that Breese was discharging his duties in the customary manner; that, while he had switched cars on the spur before, this was the first occasion that he had to go in for the purpose of taking out a car, as he did on the day of the accident. He states that he knew that the pile of lumber was there, but that he had not noticed its proximity to the track, it does not appear that plaintiff had any reason for thinking that there was any less danger on the opposite side of the car than there was on the side upon which he climbed. It cannot be said as a matter of law that the plaintiff, acting as a brakeman in switching a car, was careless in climbing or riding upon the side of the car (Sou. Kans. Ry. Co. v. Michaels, 57 Kan. 474: 46 Pac.
There was no error in submitting the case to the jury. The judgment of the lower court will therefore be affirmed. Affirmed.