"Express trusts are those which are created by the direct and positive acts of the parties, by some writing, or deed, or will, or by words either expressly or impliedly evincing an inten tion to create a trust.' "Implied trusts are those which, without being expressed, are deducible from the nature of the transaction as matters of intent, or which are superinduced upon the transaction by operation of law as matters of equity, independently of the particular intention of the parties. Express and implied trusts therefore differ chiefly in that express trusts are created by the acts of the parties, while implied trusts are raised by operation of law, either to carry out a presumed intention of the parties or to satisfy the demands of justice or protect against fraud." 39 Cyc. 24, 25. [8] 4. A final contention of the appellants is that a contract of the plaintiff with her grandfather that she was to receive a third of the property he owned at his death would be testamentary in character and unenforceable, because not executed in accordance with the statute in relation to wills. In support of this are cited Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450, 26 Am. St. Rep. 86, and other like cases, holding that an instrument undertaking to become effective as a conveyance of title at the death of the grantor is testamentary, and not contractual, and therefore is revocable. We do not regard that principle as applicable here. If a will were formally executed devising property in accordance with a contract between the testator and the devisee, the will would be revocable as a will, but the contractual rights of the beneficiary would not thereby be abrogated. Here there was no attempt to vest title to specific property in the plaintiff at the time of her grandfather's death, but an undertaking on his part so to adjust his affairs that she should receive a third of his estate. The title which it was contemplated the plaintiff should receive was not to be created directly by the contract, but by her grandfather's will, or by the statute of descents and distributions in case of his intestacy. The contract in this aspect does not appear to be substantially different from others by which the obliger undertakes that provision shall be made at his death for the obligee. Such agreements are not required to be executed as wills. Winne v. Winne, 166 N. Y. 263, 59 N. E. 832, 82 Am. St. Rep. 647; In re McIntosh's Estate, 159 N. W. (Iowa) 223; White v. Winchester, 124 Md. 518, 92 Atl. 1057, Ann. Cas. 1916D, 1156. The petition for a rehearing is denied. All the Justices concurring. (88 Or. 322) PALMER v. WILLAMETTE VALLEY (Supreme Court of Oregon. April 9, 1918.) 1. CARRIERS 247(2) - PASSENGERS TENDING PASSENGER. "IN A person places himself in the position of an intending passenger when he goes upon the Where a carrier has stopped its train at a regular station, it is incumbent upon it to keep the cars standing for such time as was reasonably necessary to enable intending passengers, acting with reasonable diligence, to board the train, but the carrier need not wait for any belated person. 4. CARRIERS TRAIN. 265-PASSENGERS-ENTERING While waiting at the depot a standing train serves as an invitation to all intending passengers to board it, and the invitation carries with it an assurance that the passenger may board the train in safety, but starting the train ordinarily operates as a withdrawal of the invitation. 5. CARRIERS 247(1) - PASSENGERS LEAVING GROUNds. It is not the rule that once a passenger always a passenger, but a passenger who leaves the carrier's grounds, even temporarily, loses his status as such. The mere act of an intending passenger in signaling the motorman on an electric train at did not make him a passenger. a road crossing 135 feet from the regular stop [Ed. Note. For other definitions, see_Words and Phrases, First and Second Series, Passenger.] 10. CARRIERS ✪247(3)—“Passengers”—SIGNALING CAR TO STOP. Where plaintiff, intending to board a train, went to the station, and, when the train came in, desiring to speak to some one 100 feet away, asked the conductor to wait a minute, which the conductor conditionally agreed to do, and the train started, and plaintiff signaled the motorman, the mere fact that the motorman nodded his head did not make plaintiff a passenger, so as to warrant recovery for injuries in attempting to board the moving cars. Department 1. Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge. Action by Lionel C. Palmer, a minor, by Charles Palmer, as guardian ad litem, against the Willamette Valley Southern RailJudgment of nonsuit, and way Company. plaintiff appeals. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 171 P.-74 Acting through his guardian ad litem, Lionel C. Palmer, a minor about 16 years of age, sued the defendant for damages resulting from a serious injury received by him on July 11, 1916, while attempting to board a moving train. The plaintiff was nonsuited, and then appealed. The Willamette Valley Southern Railway Company owns and operates an electric railway line between Oregon City and Mt. Angel. The line runs through the town of Molalla, where a depot is maintained, and continues in a southwesterly direction to and past a station called Ogle, located about 21⁄2 miles from Molalla. The plaintiff lived with his parents near Ogle, but he attended high school in Molalla, and when school closed he worked in a garage conducted by O. K. Cole in Molalla. He generally traveled on the electric train when going from his home to Molalla or when returning to his home after school was out or at the end of his day's work. He had boarded the train "half a dozen times or more" at Ogle while the train was in motion, and he had alighted from the train "many times without it stopping." On these occasions, when he boarded or alighted from a moving car, the train was going between 2 and 4 miles an hour. He "felt it was all right to get on the cars when they were moving when the conductor told me it was all right." However, the plaintiff had boarded the train while in motion "once or twice" before the conductor told him "it was all right." On one occasion when the train was approaching Ogle the conductor asked the plaintiff whether he could "get off without stopping." The plaintiff answered, "I guess so;" and the conductor said, "All right then;" and so the plaintiff "stepped off." However, before the plaintiff stepped off the conductor said: "When you step off be sure to step with the train. It is safe to step off the train if you step the way the train is going, but if you step away from it, and step out, you are more apt to get hurt. Step with it and it is all right." The plaintiff stated that he thought on the different occasions when he boarded or alighted from the train while in motion "it was going between 2 and 4 miles an hour"; and he also testified that on each of such occasions the train was in charge of the same motorman who had charge of it on July 11th, and that, although he never knew the name of the motorman, he “was acquainted with him by sight." The motorman had seen the plaintiff going to and from school, when he walked, and the motorman "always waved his hand when he passed." The railway track proceeds in a southerly direction past the depot in Molalla, and crosses a county road which runs east and west. As it leaves the depot, the track de scribes a slight curve, and does not again straighten out into a tangent until after the county road follows the center line, and a sidewalk about 5 feet in width is laid along the north line of the right of way of the highway. The sidewalk crosses a ditch or trench which adjoins and parallels the track for a distance of probably 20 or 30 feet. It is 135 feet from the depot to the sidewalk, and 20 feet from the sidewalk to the center of the highway. Edwin Woodwarth testified that on one occasion a south-bound train stopped at the road crossing to permit him and a companion to board the train. The plaintiff's father said that he had seen the train stop two different times "for people to get off and on." The plaintiff testified that he had seen the train stop at the crossing "not less than three times" and take on passengers. A few minutes after 8 p. m. on June 11, 1916, the plaintiff went to the depot at Molalla with the intention of riding as a passenger on the train to Ogle. The south-bound train was about half an hour late. The plaintiff did not purchase a ticket because there was no agent at the depot, but he had money with which to pay his fare. He had been in charge of the garage that day during the absence of Cole, his employer, and had taken in about $10. The plaintiff wanted to deliver this money to his employer, and after arriv ing at the depot the plaintiff went to the county road and watched for Cole. He saw Cole coming in an automobile along the road from the west toward the railroad crossing, and upon looking north "down the track" saw the train approaching the depot. The plaintiff testified that Cole and the train"were both coming at the same rate of speed and about the same distance from the station, and so I waved to him. I waited until he got • He close, and signaled to him to stop. just came over the track when the car came, and I went back and the car was just coming in. The brakeman had not stepped down yet, but when the car stopped he stepped down, and I went up to him and tapped him on the shoulder, and * he looked around, and I said, 'Will you wait for me just a minute?' 'Yes,' he said, 'If you don't make your minute too long.' So I went back to the county road ran there. I had the money in my hand, and handed it to Mr. Cole, and told him I would keep ten cents to pay my way, and then I whirl* * when I turned and started ed, and back they (the cars) were moving and coming towards me." When he turned around the train was "over half way" to the sidewalk, and he stated that he "went fast" back to the sidewalk, waved his hand at the motorman as a signal that he intended to board, and when he reached the sidewalk he saw that the front of the train was “eight, ten, or probably fifteen feet" from him, and so he stopped on the sidewalk. Referring to the motorman, the plaintiff testified: "I saw him when he came up close by me. He nodded at me as though he knew me." When the plaintiff stopped on the sidewalk the train was "go * hour at the fastest." The plaintiff had a he enters upon a carrier's premises with the small dinner pail on one arm, and when the bona fide intention of becoming a passenger, rear of the first car came to him the plain- and awaits the arrival of his train at a proptiff "took hold of the upright handles" on er place, in a proper manner, and within a each side of the door, and just as he "took reasonable time, before the arrival of such hold" the train gave "an awful jerk, twice as train. Du Bose v. Atlantic Coast Line R. hard as it had ever jerked before," break- R. Co., 81 S. C. 271, 62 S. E. 255; Abbot v. ing his hold and throwing him between the Railroad Co., 46 Or. 549, 561, 80 Pac. 1012, cars. He explained that he did not get his 1 L. R. A (N. S.) 851, 114 Am. St. Rep. 885, feet on the steps when he "took hold, 7 Ann. Cas. 961; 10 C. J. 613. It may be because it was going faster than I assumed, therefore, that the plaintiff acquirexpected it to be going, and it threw me un-ed the rights of an intending passenger when der." Referring to the speed of the train, he went to the depot for the purpose of takthe plaintiff said as the front end of the first ing the train to Ogle. The carrier had procar passed him the train was "going the vided a depot and grounds beside the track same rate as it was coming" when he stopped where intending passengers could await the on the sidewalk; that he did not detect any arrival of trains or board them upon their ar""slowing up of the speed" when the front rival; and so long as the plaintiff was at or end of the first car passed him; and that it in the depot, or on the grounds which the did not appear to be gaining in speed until, | carrier had provided for passengers, he was as he expressed it, "Just as soon as I took entitled to the care due to intending passenhold it took a jerk and I knew it was gain-gers. Among the duties owing from the ing speed." When speaking of the speed at carrier to intending passengers is the duty to which the train was usually run from the stop all trains, scheduled to stop, at designatdepot to the county road, two witnesses said ed places, and therefore it became the duty it was "comparatively slow," another wit- of defendant to stop its train at the usual ness described it as "rather slow," and the stopping place in Molalla; and having stopplaintiff estimated it at "four or five miles ped its train it was incumbent upon the carper hour." The plaintiff says that when the rier to keep the cars standing for such time front end of the first car passed him the as was reasonably necessary to enable intrain was going at the rate of 4 or 5 miles tending passengers, in the exercise of reasonaper hour; he alleges in his complaint that at ble diligence on their part, to board the and immediately prior to the time he at- train. However, after having waited a reatempted to board the train the speed of the sonable time for intending passengers to train was suddenly increased, "so that said board the train, a carrier is not, as a general cars were moving at a dangerous rate of rule, obliged to wait longer for any belated speed, of 8 or 10 miles per hour"; and he tes-person. Mitchell v. Augusta & A. R. Co., 87 tified that at the time he attempted to boards. C. 375, 69 S. E. 664, 31 L. R. A. (N. S.) 442. the car it was "then running from 8 to 10 miles per hour," although he thought when he "took hold" that the train was going at the same rate of speed as it was when the "front end passed him." The plaintiff does not claim the train was not stopped sufficiently long to enable intending passengers who were at the depot to board the train, and consequently it must be assumed that the carrier stopped the train Leroy Lomax, of Portland, for appellant. at the depot long enough to permit intending 10. D. Eby, of Oregon City, Frank J. Loner-passengers, in the exercise of reasonable diligan, of Portland, on the brief), for respond-gence, to get aboard. ent. HARRIS, J. (after stating the facts as above). The plaintiff must necessarily fail unless the defendant violated some duty owing to him and thus caused the injury. The 'plaintiff insists that he occupied the position of a passenger, and that it was a question for the jury to determine whether his attempt to board the train was an act of negligence causing or contributing to the injury. The defendant contends that the plaintiff was properly nonsuited because (1) he did not possess the rights of a passenger when he attempted to board the train; and (2) even though he be treated as a passenger, nevertheless his attempt to board a moving train was negligence per se. [1-3] Stating the rule in general terms, it may be said that a person places himself in the position of an intending passenger when The plaintiff argues that the carrier agreed to wait for him "a minute" if he did not make the minute "too long." According to the testimony of the plaintiff, he could have delivered the money to Cole and returned to the depot, where the train was standing, within 18 or 20 seconds from the time he spoke to the brakeman, and hence it will be assumed that the carrier did not wait as long as the brakeman said he would wait. It must be remembered that there is no evidence to show that the brakeman or any member of the crew knew why the plaintiff wished the brakeman to wait, or what he wished to do, or where he wished to go, or that he had gone anywhere. It will be recalled, too, that the track leaves the depot on a curve, and while there is no evidence to show the degree of the curve, or whether a person standing on the depot platform could have seen the plaintiff when at the county road, it does appear from the evidence that, although the plaintiff was on the same side of the track as the depot, he was on the outer, and not on the inner, side of the curve. With the single exception of the motorman, no member of the train crew either saw the defendant while he was in the county road or on the sidewalk, or even knew that he was there, and hence the status of passenger was not again resumed unless it was created by the act of the plaintiff and the motorman. Although it was using electric power, the defendant was operating a train with scheduled stops, and was governed by the rules applicable to steam trains. 10 C. J. 945; 2 Shearman & Redfield on Neg. (6th Ed.) 1441. The plaintiff went upon the county road, and while there his status as a passenger was at least suspended. When he stood upon the sidewalk he was not in a place provided by the carrier for the use of intending passen[4] While waiting at the depot a standing gers, and while he stood there he was not train serves as an invitation to all intending in a place where he could claim the rights passengers to board it, and the invitation of an intending passenger, and consequently carries with it an assurance that the passen- the carrier was not under any obligation ger may board the train in safety. Jones v. to stop or to slow the train at the crossing, New York Central & H. R. R. R. Co., 156 N. even though it be conceded that the carrier Y. 187, 50 N. E. 856, 41 L. R. A. 490. But violated its contract when it refused to wait starting the train ordinarily operates as a "a minute" at the depot. If the rights of an withdrawal of the invitation. Tompkins v. intending passenger, which were acquired by Portland Ry. L. & P. Co., 77 Or. 174, 179, 150 the plaintiff when he entered upon the depot Pac. 758; Chaffee v. Old Colony R. R. Co., premises, did not follow him when he left 17 R. I. 658, 24 Atl. 141; 2 White on Per- those premises, and did not remain with him sonal Injuries on Railroads, § 783. When while standing upon the sidewalk, then he therefore defendant started its train from cannot successfully claim the rights of an the depot it withdrew its invitation to board intending passenger, unless waving his arm the train. There is an irreconcilable conflict to the motorman and the nod of the latter between the authorities upon the question as reclothed him with those rights. to whether it is negligence as a matter of law for an intending passenger to board a moving train. In some jurisdictions it is held that it is negligence per se to attempt to board a moving train, while in other jurisdictions it is a question for the jury, unless the speed was so great as to make the attempt obviously dangerous. The presence or absence of an invitation or direction given by a member of the train crew to the intending passenger to board a moving train, and the presence or absence of knowledge or consent upon the part of the carrier, are frequently important, and sometimes controlling, factors, and ofttimes the failure of the train to stop a reasonable time is a material element. 5 R. C. L. 36; Hunter v. Cooperstown & S. V. R. Co., 112 N. Y. 371, 19 N. E. 820, 2 L. R. A. 832, 8 Am. St. Rep. 752; K. & G. S. L. Ry. Co. v. Dorough, 72 Tex. 108, 10 S. W. 711; Distler v. Long Island R. Co., 151 N. Y. 424, 45 N. E. 937, 35 L. R. A. 762; Hoylman v. Kanawha & M. R. Co., 65 W. Va. 264, 64 S. E. 536, 22 L. R. A. (N. S.) 741, 17 Ann. Cas. 1149; Atchison, T. & S. F. Ry. Co. v. Holloway, 71 Kan. 1, 80 Pac. 31, 114 Am. St. Rep. 462; Carr v. Eel River & E. R. Co., 98 Cal. 366, 33 Pac. 213, 21 L. R. A. 354; Browne v. Raleigh & G. R. R. Co., 108 N. C. 34, 12 S. E. 958; Gannon v. Chicago, R. I. & P. Ry. Co., 141 Iowa, 37, 117 N. W. 966, 23 L. R. A. (N. S.) 1061. However, in the instant case it will not be necessary to determine whether it would have been negligence per se for the plaintiff to have attempted to board a moving train when in front of the depot and at a place provided for passengers. [7-9] The county road was not a regular stopping place nor even a flag station. It is true that the carrier had stopped the train at the road as many as six times to permit passengers to board or alight from the train, but those acts of accommodation did not make the highway a stopping place when a depot was maintained 135 feet from the crossing. A carrier is not bound to receive passengers otherwise than at places provided for that purpose. Haase v. O. R. & N. Co., 19 Or. 354, 361, 24 Pac. 238. The plaintiff could not, by the mere giving of a signal, convert the county road into a passenger station. The act of signaling to the motorman did not confer the rights of a passenger upon the plaintiff. The plaintiff admits that the train did not slacken its speed, and that from the time he first saw it, when he turned around in the road, it was traveling between 3 and 5 miles an hour, and he also admits that he did not expect the train to stop. [10] The plaintiff contends that he became entitled to the rights of a passenger when the motorman acknowledged his signal But [5, 6] Although the plaintiff became an there is no evidence that the motorman acintending passenger when he entered upon knowledged his signal or in any way indicatthe depot grounds for the purpose of taking ed an intention to accept the plaintiff as a the train to Ogle, yet it does not follow that passenger. The most the motorman did was he was necessarily entitled to the rights of a passenger at all times afterwards. It is not the rule that once a passenger always a passenger. Du Bose v. Atlantic Coast Line R. to indicate that he knew the plaintiff, just as he had done on half a dozen previous occasions when the train passed the plaintiff; for, in the language of the plaintiff himself, knew me." The plaintiff was not invited to board the train at the crossing. The carrier did not, expressly or impliedly, contract to receive him as a passenger at the crossing. There is no evidence to show that any member of the train crew saw the plaintiff attempt to board the train, or knew that he intended to board the train, or by word or act indicated an intention to accept him as a passenger at the county road; and therefore the defendant is not liable for the injury suffered by the plaintiff. Baltimore Traction Co. v. State, 78 Md. 409, 28 Atl. 397; Garvey v. Rhode Island Co., 26 R. I. 80, 58 Atl. 456; Georgia & F. R. Co. v. Tapley, 144 Ga. 453, 87 S. E. 473, L. R. A. 1916C, 1020; Mitchell V. Augusta & A. R. Co., 87 S. C, 375, 69 S. E. 664, 31 L. R. A. (N. S.) 442; 10 C. J. 617. The judgment of the circuit court is correct and it is affirmed. MCBRIDE, C. J., and BENSON and BURNETT, JJ., concur. (88 Or. 416) In re DUNN'S WILL. (Supreme Court of Oregon. April 16, 1918.) WILLS 355-CONTEST-INCOMPETENCY AND UNDUE INFLUENCE. In a proceeding to vacate an order admitting a will to probate on the ground that at the time of execution testatrix was mentally incompetent and unduly influenced, contestants have the burden to establish by a preponderance of the evidence that testatrix was mentally incompetent or that undue influence was exercised to bring about execution of the will. Department 1. Appeal from Circuit Court, Yamhill County; H. H. Belt, Judge. Proceeding to vacate an order admitting to probate the last will and testament of Susanna Dunn, deceased. The probate court decreed that the petition be dismissed. Appeal was taken to the circuit court, where such decree was affirmed, and contestants appeal. Affirmed. This proceeding was begun in the probate court for Yamhill county to vacate and set aside an order admitting to probate the last will and testament of Susanna Dunn, deceased, for the reason that at the time of the execution of the instrument the testator was mentally incompetent to make a will, and was unduly and wrongfully influenced therein by Florence Cole, a daughter, since deceased, and Albert Dunn, one of the proponents of the will. The heirs at law of the deceased, who are her sons and daughters and grandchildren, are all named in the instrument, to five of whom there is a bequest of $1 each; a bequest of $500 to one son, and these are followed by a residuary clause whereby the residue of her estate is left to Hattie Dunn, a granddaughter, Bertram Cole, a grandson, and Albert Dunn, a son, in equal shares. S. S. Duncan is named as executor. The estate was appraised at $6,857.81. The executor and the residuary legatees joined in an answer to the petition of the contestants wherein they deny the material allegations of the petition and plead various matters by way of affirmative defense. After a trial of the issues, the probate court found that the testatrix was at the time of making the will of sound and disposing mind and memory and not under the undue influence of any person, and decreed that the petition be dismissed. An appeal was then taken to the circuit court, where, upon a de novo trial, such decree was affirmed, and contestants have perfected an appeal to this court. Alfred P. Dobson, of Portland, for appellants. James E. Burdette and W. T. Vinton, both of McMinnville (F. W. Fenton, of McMinnville, on the brief), for respondents. BENSON, J. (after stating the facts as above). We have carefully read the entire record in this case, which is very voluminous, and, without going into a detailed analysis of the evidence which would be altogether unprofitable, we have arrived at the same conclusion as that reached by the trial court. The contestants have not established by a preponderance of the evidence that the testatrix was mentally incompetent or that any undue influence was exerted to bring about the execution of the will in controversy. It follows that the decree of the trial court must be affirmed, and it is so ordered. MCBRIDE, C. J., and MOORE and HARRIS, JJ., concur. (88 Or. 334) STATE ex rel. LONG v. BEVERIDGE, County Clerk. (Supreme Court of Oregon. April 9, 1918.) 1. OFFICERS 55(2)-TOLLING FROM OFFICE -POWER OF LEGISLATURE. While the legislative assembly could not forcibly oust an incumbent from the office of justice of the peace, it could toll him out of such office by giving him a better office, which he accepts, as was done in the city of Portland by Act Feb. 28, 1913 (Laws 1913, p. 732), creating district courts therein and appointing justices of the peace to be judges thereof. 2. OFFICERS 55(2)-RESIGNATION-ACCEPT ANCE OF OTHER OFFICE. of the peace works a resignation of his office. Acceptance of the office of judge by a justice 3. OFFICERS 55 (2)-VACATION OF OFFICE— ACCEPTANCE OF OTHER OFFICE. Since Const. art. 2, § 10, declares no person shall hold more than one lucrative office at the same time, a justice of the peace vacated his office by accepting a judgeship under Act Feb. 28, 1913 (Laws 1913, p. 732), creating district courts in certain cities. 4. JUDGES POWER. 4-APPOINTMENT LEGISLATIVE It was competent for the legislative assembly to appoint a justice of the peace in a city to a newly created office of judge of a district court, as was done by Act Feb. 28, 1913 (Laws 1913, p. 732), creating district courts in certain cities. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |