Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-29

peal from the circuit court for Una
tilla county. The Hon. H. ]. Bean, |
Judge. Argued and submitted at
Pendleton May 3, 1911. R. S. Slater
Gee & Slater, on brieO and ]. H.
Raley, for respondent. W. A. Rob-
bins (W. w. Cotton, Carter & Smythe,
and Arthur C. Spencer, on brlef) for
appellant. Mcbride, j. Affirmed.
This is an action for damages for
personal injuries to plaintiff, result
ing from alleged negligence of defen-
dant while plaintiff was a passenger
upon defendants railway train.
There is evidence on plaintiffs be-
half tending to show that, on May 2S,
1909, plaintiff entered the coach in
which he was riding at Umatilla, and
that the train reached Pendleton
about 2:35 O'Clock in the morning.
The car was a vestibule car with
door on each side and trap doors in
the floor over the steps. Plaintiff
was seated with two companions,
Hughes and Gard, and did not leave
his seat until the brakeman an
nounced Pendleton-plaintiff's destin-
ation-when they were something
over a mile west of the station.
Thereafter plaintiff and his two COM
panions arose, put on their overcoats
and plaintiff took his grip, prepara-
tory to leaving the train. When
about 900 feet from the station
Hughes walked out upon the front
platform, Gard following and plain
tiff few feet behind. Gard stepped
down on the steps on the north side
of the car, and Hughes stood at the
head of the steps on the platform.
Both doors of the vestibule were open
and there was evidence tending to
show that the south door had been
opened at Echo, several miles below
Pendleton, to permit passenger to
alight, and that 1t had not been
closed thereafter. Hughes and Gard
testified that the last time they OBJ
served plaintiff he was standing just
inside the car door facing the plat
form; that short distance below the
station the train slowed up consider
ably, causing heavy jerk; that they
got off at the station, and that, after
assisting the chief of police, who was
plaintiffs brother, to arrest some
tramps suspected of robbery, and af-
ter going up into town, they became
: anxious about plaintiffs non-appear-
ance, and, in company with his broth
er, they went down the track to look
for him and found him lying on the
south side of the track, about 700
feet west of the station. He was
helpless and unable to speak and it
/ was claimed that hfs injuries were
such as to- render him incapable of
appearing as a witness in his own be-
half. Other facts appear in the opin-
ion.
At the close of the plaintiffs testi-
mony defendant moved for a non-suit
which was refused. Plaintiff had a
verdict and defendant appeals.
Mcbride, j.: While the evidence
might not appear to all minds to be
conclusive, we are of the opinion that
1t was sufficient to justify the court
in submitting the case to the jury.
Plaintiff was standing in the door of
the car Immediately before the jerk
of the train occurred, and very few
minutes after when Hughes looked
for him, he had disappeared; and the
evidence tends to show that he was
found just about where the witnesses
locate the place where the jerk oc-
Cured It is not unreasonable to
suppose that he was thrown through
the front door of the car upon the
platform and fell from there through
the open south door of the vestibule,
thereby receiving the injuries which
he suffered. While it is true that
courts will not accept evidence of
witnesses which is contradicted by
absolute physical facts, yet they are
cautious in the application of this
rule, and in the case before us it can
have no application. A natural and
reasonable inference from the facts
testified to by plaintiffs witnesses is
that the jar of the train threw him
forward, and that, burdened as he
was with his suitcase, he was unable
to recover himself and fell off the
platform, through the side door. Ac-
cidents of this character, while in
frequent, do happen sometimes. Thus
in Fitch v. Mason City & c. L. Trac-
tion Co., 116 Iowa ZIG, we have the
case Of person sitting on seat
hSul luG uOOl VI d CdT anu D6luE
thrown bodily off the seat and out
| through the door, upon the roadway
beneath. In Coudy V. st. Louis Iron
Mountain and Southern Railway 4G
Mo. 79, the plaintiff, a boy, arose from
his seat to pick up a bundle that had
fallen on the floor, when a sudden
checking of the speed of the car
threw him down the aisle, through
the open door of the car, out upon the
platform and from there down the
steps to the ground. These two in
stances came to the attention of the
writer of this opinion while looking
up other branches of this case, and
the facts of both are more unusual
than those upon which plaintiff predi-
Gates a recovery here, where in our
opinion plaintiffs theory seems a
natural and reasonable one. 1t is
true that there is strong contradic-
tory evidence on behalf of defendant
but where there is any evidence that
reasonably supports plaintiffs theory
the case must go to the jury and its
verdict is conclusive
We think that there was evidence
sufficient to go to the jury upon the
question of negligence of defendants
employees in leaving the door of the
vestibule open. The object of having
7estibuled trains is to assure the SAT,
ETY. of persons who have occasion tC
go upon the platform Except at sta
tions 1t was the duty of defendant tC
use diligence to keep the vestibule
closed, and there is some evidence