# Rice v. City of Portland

> Oregon Supreme Court · January 5, 1932 · 141 Or. 205

URL: https://www.frixlaw.com/law-library/cases/3839731

## Case

- **Full name:** RICE v. CITY OF PORTLAND Et Al.
- **Court:** Oregon Supreme Court
- **Decided:** January 5, 1932
- **Citations:** 141 Or. 205; 17 P.2d 562; 7 P.2d 989; 1932 Ore. LEXIS 186
- **Precedential status:** Published
- **Opinion:** Addendum by Belt
- **Judges:** Band, Belt, Rand, Bean, Rossman, Kelly, Campbell
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3839731

## How later opinions describe it (automated extraction)

- holding that the issue whether a plaintiff took reasonable steps to avoid injury is one of fact

## Opinion text

On Rehearing
( 17 P. (2d) 562 )
BELT, J.
This is an action to recover damages for personal injuries alleged to have been sustained by reason of the joint negligence of the defendants City of Portland and the MacMarr Stores, Inc. It arose out of the following facts which are, in view of motion for directed verdict, stated in the light most favorable to plaintiff:
On November 21, 1929, at about 5 o’clock p. m., a city truck used by the bureau of water works for emergency repair work was proceeding north on East Third street. The passengers on this car consisted of three members of the emergency repair crew and the plaintiff herein who was employed as a member of a construction gang, digging ditches and laying water mains under the direction of the same bureau. The foreman, who frequently rode home on this truck, had availed himself of other transportation; one of the crew who usually rode in the rear of the truck took the foreman’s place beside the driver; and Mr. Rice was invited to ride in the seat thus vacated. Just back of the driver’s seat, a cabinet, opening towards the rear and consisting of numerous pigeon holes for fittings, parts, etc., had been erected, which, no doubt, somewhat obstructed the view to the front. Across the truck bed, in front of this cabinet, a loose board had been placed for the convenience of those who might be riding there. Mr. Rice sat on this board on the right side of the truck, with his back to the cabinet and, of course, facing the rear end of the car. In front of him on the truck bed, in
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• addition to a large and a small tool box, lay an assortment of tools and larger equipment. His right foot rested on this mass at a slight elevation. His left foot was placed on the fender — but within the lines of the running board- — in a position which enabled him to brace himself against the cabinet at his back.
While the city truck was traveling north on Bast Third street, a truck owned by the MacMarr Stores was being driven south on the same street. The MacMarr car swung in to the east curb directly opposite a warehouse located on the west side of the street, with the apparent purpose of backing into it. The left front wheel touched the curb leaving the car extending into the street at a slight angle. At a point some thirty or forty feet away, the city truck came to a short stop, and then, after its horn was sounded, attempted to pass to the rear of the MacMarr machine which, by that time, was backing towards the warehouse. The resulting collision between the endgate of the MacMarr truck and the side of the truck driven by the city did little damage excepting that done to plaintiff’s leg which was caught between the two.
On the original hearing the judgment of the lower court was reversed and the cause remanded with directions to dismiss the same. The reasons assigned for reversal were: (1) That at the time plaintiff was injured, while riding on the truck of the defendant city, he was a mere licensee and the evidence failed to disclose any breach of duty which the city owed to him; (2) plaintiff was guilty of contributory negligence.
Relative to the first point, this court said: ‘ ‘ There is no evidence that the city had ever expressly or impliedly authorized any member of this emergency crew to invite any person to ride” and that “since the city had conferred no such authority, plaintiff * * * was not the guest of the city, but was the guest of
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those who had invited him to ride.” Plaintiff challenges the accurancy of this conclusion and asserts there is evidence tending to show that he was an invitee of the city and that for several years it had been customary for the city to haul its employees on the truck in question after they had finished their day’s work.
Further examination of the record discloses the following evidence in reference to the alleged custom or practice of the city in transporting its employees. Plaintiff testified:
“ 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.
¥ 4? ^ ^
“A. That is the way we got to work and the way we got from the work.
“Q. Has that been a uniform and universal practice?
“A. Yes sir, after the job started, if it was a big job, large job, then we would go to the shop the next morning and then ride in on the truck to wherever it was handy to get off, but in starting a big job we would report to the job and go to the job.
“Q. Has that been the uniform practice in the city of Portland?
“A.
Yes, sir.
“Q. With all their trucks?
“A. Yes, sir.
* * # * *
“Q. To your knowledge, for a period of seven years ?
“A. Yes, sir.
* * * # #
“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.”
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Mr. Marr, an employee of the city in the water department, testified:
“Q. Mr. Marr, I want to ask here now, what has been the usage, practice and custom of the City of Portland with respect to transportation of its workmen either to or from the places of employment.
#
“A.
The custom had been, when reporting on a new job, for a crew of men to report out of the shop, and they hauled them to the job on a truck, and if it was a big job, they stayed on the job until 4:30, with the exception of the emergency crew, they rode with the truck, but the men working on the job, if the truck was there available, going in the direction of their home, they got in and rode in the direction of their home, or to the street car line. As a matter of fact, truck drivers on different occasions have stopped and waited for men, all that could pile on, to get on and ride in the direction of their homes.
“Q. Has that been the universal practice in the City of Portland with the water department?
“A. Yes.”
Mr. Hendrickson, an employee of the city and a witness for it, on cross-examination testified:
“Q. Don’t you know, as a matter of fact, it has been the custom and practice of the City of Portland to transport their workmen for the job whenever there is a truck there, the workmen then get on and ride towards their home; is that right?
“A. I don’t know what they do now. They have gone on, I seen them go on and take a ride and nobody told them to get off.
“Q. That has been the universal custom?
“A. I have seen that many times.”
Joe Schmidt, the mechanic in charge of the city truck, who, according to plaintiff’s testimony, invited him to ride, testified on cross-examination as follows:
“Q. Don’t you know, as a matter of fact, Mr. Schmidt, that through your time of employment by the
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city, whenever work ceased at 4:30, whenever any employee of the City of Portland wanted to get on a truck, they just got on and rode to wherever they wanted to get off!
“A.
Yes, they got on a truck and rode.
‘ ‘ Q. That has been the uniform practice, whenever they wanted to, isn’t that right?
“A. Up to a certain time.
“Q. That is up to the time after this accident?
“A.
You mean in regard to riding?
“Q. Yes, getting on the truck and riding ten blocks or riding to your home?
“ A. I never heard any orders to that effect, to keep them off.”
Mr. Stover, the driver of the city truck, testified, in effect, that, since he had been driving, it had always been the custom for employees to ride to and from the place of work.
In the light of this evidence, we are not prepared to say that the plaintiff was a mere licensee to whom the city owed only the duty of avoiding willful or wanton injury. Assuming the above testimony to be true, plaintiff was clearly an invitee of the city and it was its duty to exercise due care to avoid injuring him. The evidence tends to show that the employee in charge of the city truck had the apparent, if not the actual, authority to invite plaintiff to ride.
Since there is evidence tending to show an established custom or practice of employees riding on trucks, including the one in question — of which the city in the exercise of reasonable diligence ought to have known— it is not for the court to declare as a matter of law that the plaintiff who rode pursuant to such custom was a mere licensee. We think the trial court did not err in submitting to the jury the issue as to whether plaintiff was an invitee or a mere licensee:
Hayes v. Pine State Creamery Co.,
195 N. C. 113 ( 141 S. E. 340 );
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Rosenbaum v. St. Paul & D. Ry. Co.,
38 Minn. 173 ( 36 N. W. 447 , 8 Am. St. Rep. 653 );
Flanagan v. Webster & Webster,
107 Conn. 502 ( 142 Atl. 201 ). This rule is also recognized in
Monnet v. Ullman,
129 Or. 44 ( 276 P. 244 ), although the facts therein are entirely different from those of the one under consideration, as the court there stated:
“ * * * where there is no evidence of a practice on the part of the driver to carry passengers so commonly that it should he presumed that the employer must have known of its occurrence, the employer is not liable * *
But the city asserts that it had a rule prohibiting employees from riding on such emergency trucks. Relative to a similar contention, the court, in
Hayes v. Pine State Creamery Co.,
supra, said:
“But if such rule had been expressly waived or abrogated, or if the rule had been openly, constantly, or habitually violated for such length of time that the employer, in the exercise of ordinary care and diligence, knew or should have known of such habitual nonobservance, then the rule is deemed by law to have been waived or abrogated, and in such event the owner becomes liable for such negligence on the part of the driver. ’ ’
Also see
Finnegan v. Missouri Pacific Ry. Co.,
261 Mo. 481 ( 169 S. W. 969 ). In the instant case plaintiff testified that he had no knowledge or notice of any rule prohibiting employees from riding on city trucks.
Was the plaintiff guilty of contributory negligence? Ordinarily, contributory negligence is a question of fact for the jury. It is only when all reasonable minds would concur on the question of negligence that the court is justified in so declaring as a matter of law. Justice Rand, in an able and painstaking opinion, on original hearing, has well stated the fundamental prin
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ciples underlying the law of negligence. The only difference of opinion which has arisen is by reason of the application of the law to the particular facts involved in this case. It is well settled that plaintiff was not bound to anticipate negligence. Indeed, he had a right to assume, in the absence of notice to the contrary, that the rules of the road would be obeyed by both truck drivers. In determining whether he failed to exercise due care to avoid injury we must measure his conduct by that standard of care which an ordinarily prudent person would have exercised under all the facts and circumstances as they appeared to exist. As stated in
Santoro v. Brooks,
121 Or. 424 ( 254 P. 1019 ), “In the quietude of the office, it is comparatively easy to demonstrate by mathematical calculation, after an accident has happened, that it could have been avoided * * But such is not the test. The more pertinent inquiry is: Did the plaintiff fail to do that which an ordinarily prudent person would have done under the same circumstances?
We are convinced that plaintiff’s position on the truck was not such as to enable this court to say, as a matter of law, that it was one of such imminent danger and peril that no person of ordinary prudence and caution would assume it. As stated in
Louisville Gas Co. v. Fry,
147 Ky. 754 ( 145 S. W. 748 ):
“*
* *
it is not in every instance where one exposes himself to a known danger and injury results that he is denied a right to recover, but only in that class of cases where the danger is so obvious and imminent that a person of ordinary prudence under like circumstances would not subject himself to it.”
There is a wealth of authority that it is not, in the absence of statute, negligence per se for a person to ride on the running board of an automobile. Whether
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such conduct is negligence ordinarily presents a question of fact for the jury to determine:
Holmes v. Goble,
132 Or. 540 ( 285 P. 822 );
Gavin v. Cohn,
5 N. J. Misc. 296 ( 136 Atl. 330 );
Rose v. Cartier,
45 R. I. 150 ( 120 Atl. 581 );
Anderson v. Detroit Motorbus Co.,
239 Mich. 390 ( 214 N. W. 172 );
Cincinnati N. & C. Ry. Co. v. Rairden
231 Ky. 141 ( 21 S. W. (2d) 236 );
Paducah Ry. Co. v. Nave,
204 Ky. 733 ( 265 S. W. 289 );
Sanford v. Gideon-Anderson Co.
(Mo. App.), 31 S. W. (2d) 580 . If it be not negligence as a matter of law to ride on the running board of an automobile, it follows that it was not negligence for plaintiff thus to ride on a seat in the auto truck with his left foot resting upon the fender and within the lines of the running board.
The principal contention of the defendants, however, is that the plaintiff failed to exercise due care to avoid injury after having assumed such a position on the truck. More specifically, it is asserted that the accident could have been avoided had he lifted his left foot upon being reasonably apprised of a pending danger.' The fallacy of this contention, in our opinion, is that it assumes, as a matter of law, that plaintiff had reasonable grounds for believing that he was in imminent danger. There was nothing unusual about the sounding of the horn by the driver of the city truck when he attempted to pass the MacMarr truck. It might well be argued that plaintiff had no reason to believe that the MacMarr truck, without signal or warning, would suddenly back into the street and collide with the truck upon which he was riding. The plaintiff had no control over the operation of either truck and it is doubtful if, in the exercise of reasonable care, he could have done anything to prevent the collision. It is suggested that, if his foot had not been on the fender, he would not have been injured, and that
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such conduct on his part proximately contributed to the injuries of which he complains. In
Stout v. Lewis,
11 La. App. 503 ( 123 So. 346 ), this contention is thus answered:
“It is not sufficient to say that he would not have been hurt, if he had not been on the running board, because he might have remained upon the running board until he had reached his destination without injury, but for the negligent management of the car, on the running board of which he was riding; a risk which he did not assume.”
In the instant case it is to be borne in mind that plaintiff’s leg did not protrude beyond the lines of the running board.
Viewing the record in its entirety, we are convinced that whether plaintiff exercised due care to avoid injury was a question of fact for the jury to determine.
It follows that the judgment of the lower court is affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3839731. Public record. Not legal advice.