Rice v. City of Portland

The undisputed evidence in this case showed that the City of Portland, in the operation and maintenance of its water system, operated two kinds of trucks — one kind for emergency purposes, the other for other purposes; that these emergency trucks were small trucks and were designed and intended to carry four persons only, and such supplies, tools and equipment as were required for repairing defective mains and for other like emergency work. To each of them there were assigned four men, the foreman of a particular district, a driver, a mechanic, and a common laborer, and so far as the evidence shows no person except the regular crew ever rode on any one of these trucks until the evening on which plaintiff sustained the injuries complained of. On the other class of trucks not used for emergency purposes, the evidence showed that employees were permitted to ride. The only evidence we can find in this record by which plaintiff sought to show a custom for employees to ride on emergency trucks is the following:

"Q. I want you to state, if you know, what has been the practice with respect to the City of Portland transporting men in the trucks, including the emergency trucks, to and from the place of work. * * * A. That is the way we got to work and the way we got from the work. Q. I want you to tell the jury whether or not it has been the custom and practice to transport workmen on this same emergency truck on which you were riding this day? A. It was."

Standing alone and unexplained, this testimony might be sufficient to show a custom to carry employees generally upon these emergency trucks, but when it is remembered that there is no evidence that any person ever rode on any emergency truck with the exception of its own crew, except in the one instance referred to, the fallacy of this contention becomes apparent. Several months before plaintiff sustained his injury, he had been a member of an emergency crew and, of course, while so employed was one of the four employees carried on the emergency truck. He knew that there was no custom permitting the employees generally to ride on these trucks. He was not a member of the crew when injured and does not claim to have had any special authority from any one authorized to grant it when he boarded the truck on the evening in question. He did so at the invitation of the mechanic, the foreman having gone home on another conveyance. Having been formerly employed as a member of the emergency crew, he was charged with knowledge of the limitation which the city had placed upon the use of this truck by any one except those regularly employed to work with it. He was voluntarily riding upon the truck without the knowledge or consent of the city or of any person authorized to speak or act for the city, and at most he was a mere licensee:Monnet v. Ullman, 129 Or. 44 (276 P. 244); Gruber v. Cater Tr.Co., 96 Wash. 544 (165 P. 491, L.R.A. 1917F, 422).

There was no evidence that the driver of the truck on which he was riding was guilty of gross, willful or wanton negligence and, hence, the city is not answerable to him for any injuries he sustained while riding on the truck. The invitation given to him by the mechanic was not in the course of the employment of the mechanic, nor was it within his authority to permit the plaintiff to ride and thereby to create a liability upon the part of the city for any harm plaintiff might suffer while so riding. Plaintiff was voluntarily riding on the truck and assumed all the risks incident to such riding. It was error, therefore, for the trial court to refuse to sustain a motion of the city for a nonsuit, as was held in our former opinion.

It was again contended on rehearing that the court erred in holding that the plaintiff was guilty of contributory negligence in riding in the position in which he was riding at the time of his injury, after he had been warned by the stopping of the truck and the sounding of the horn of some obstruction ahead, of which he took no notice. If there was error in such holding, it was more favorable to plaintiff than he was entitled to. It seems to us, after further consideration of the case, that plaintiff was the sole cause of his own injury. In passing the MacMarr truck which was parked on the curb opposite an entrance to the MacMarr warehouse and on the same side of the street on which plaintiff was riding, one of the corners of the tailboard of the MacMarr truck came into contact at one point with the side of the truck on which plaintiff was riding. No appreciable damage resulted to either truck therefrom and neither driver knew that there had been any accident until plaintiff exclaimed that he had been hurt. That the trucks came into slight contact, however, is shown by a small spot on the side of the city truck where the paint was scratched. If plaintiff had not been riding with his leg extending over the side of the truck, he could not have been injured and, since neither driver knew or could have known that he was riding in that position, neither of them was bound to take any precaution to protect his leg while in that position. It was their duty in passing each other to leave enough space between the trucks to prevent a collision between them but they were not bound to anticipate that plaintiff's leg was over the side of the truck and might be injured if more space than the mere clearance of the trucks themselves was not provided for. That being so, they owed no duty to plaintiff to provide for a greater clearance than would have been necessary if both of his legs had been within the body of the truck. Hence, as to him, since he would not have been hurt if he had had both his legs in the truck, there was no actionable negligence upon their part, even though their failure to provide for a greater clearance between the trucks may have been a negligent act upon their part. As said in 45 C.J. 631:

"Even though an act or omission may involve a lack of care and thus constitute negligence in the colloquial meaning of the term, it does not necessarily follow that any cause of action arises therefrom. To constitute actionable negligence there must be not only a lack of care, but such lack of care must involve a breach of some duty owed to a person who is injured in consequence of such breach. Another statement of the rule is: In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of defendant to protect plaintiff from the injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant. When these elements are brought together, they unitedly constitute actionable negligence, and the absence of any one of these elements renders the complaint bad or the evidence insufficient."

Contributory negligence imports that the defendant has been negligent but excuses him from liability because the plaintiff was also negligent and his negligence was a proximate cause of the injury and an element without which the accident would not have happened. In the nature of things, it rarely occurs that all these elements are free from dispute and, hence, in most cases the question of contributory negligence is for the jury, but in this case the facts are not in dispute. They appear from plaintiff's own case and from his own testimony and show that if he had been riding in the usual and customary way, there would have been no accident and no harm could have resulted to him. Hence, cases like Holmes v. Goble, 132 Or. 540 (285 P. 822), and other cases of a like nature, cited by plaintiff, holding that riding on the running board of an automobile or with one leg over the side of the automobile is not, in itself alone, contributory negligence as a matter of law, have no application to the facts of this case, where it was admitted that the manner of so riding was a proximate cause of the injury without which no harm could have resulted to plaintiff.

It must be evident to all reasonable minds that it is more dangerous to occupy such a position as plaintiff was occupying than it would have been if his leg had not been extended over the side of the truck. While riding in that precarious position, he was bound to exercise more care to protect himself from harm than if he had been riding in the usual and ordinary way and had had his leg in a reasonably safe place. He admits that while so riding he was advised of a traffic condition ahead which necessitated the stopping of the truck and later the driving of it over to the left side of the street. He knew or should have known that in passing this traffic his leg would be exposed to greater danger because of his position on the truck. His attention was called to the situation and he says he started to look around but the movement of his body against his clothing made him feel cold so he desisted and made no further effort to ascertain what he was about to pass. If he had looked he would have seen and he could have avoided the danger. His failure under the circumstances with which he was then confronted was not a condition but the direct and proximate cause, if not the sole cause, of his injury. Whether his conduct amounted in law to contributory negligence upon his part or was the sole cause of his injury, in either event the defendants are not answerable.

When a passenger on a railroad train voluntarily puts himself in a dangerous position by allowing any part of his body to protrude out of a window beyond the outer surface of the car, it is negligence per se and prevents a recovery for an injury caused thereby. See 2 Wood on Railroad Law (2d Ed.), 303. While it is true that such cases are not, in all respects, analogous to the one involved here and the liability of the railroad grows out of contract and not tort, yet its obligation to passengers is based on the absence of negligence upon its part, and the principle that every person is bound to exercise due care for his own safety and holds him remediless if he has voluntarily placed himself in a place of known danger and has been injured thereby without the fault of defendant, we think applies as forcibly, under the facts of this case, as in railroad cases.

We think that all reasonably prudent men must agree that the manner in which plaintiff was riding when injured was obviously less safe and exposed plaintiff to far greater danger than if he had been riding with both legs within the body of the truck, and that if he had exercised his natural faculties after being warned at the time he received the injury, he would have seen and could have avoided all harm to himself. If this assumption is correct, and we think it is, then it became a question for the court and the court was bound to declare that the plaintiff could not recover because of his contributory negligence. The rule applicable thereto, as we view the evidence, is stated in 42 C.J., p. 1175, as follows:

"An occupant of a motor vehicle who, without some reasonable necessity or excuse, rides in a place or position which he knows, or in the exercise of ordinary care should know, exposes him to danger, is guilty of contributory negligence if such conduct contributes proximately to cause his injuries."

Guilfoile v. Smith, 97 Conn. 271 (116 A. 237); Gilbert v.Kansas City R. Co., 109 Kan. 107 (197 P. 872); Smith v. OzarkWater Mills Co. (Mo.App.), 238 S.W. 573.

For these and the reasons stated therein, our former opinion should be adhered to.

CAMPBELL, J., concurs in this dissent.