delivered the following dissenting opinion:
This is an action for personal injuries to plaintiff’s intestate. The cause was tried before a jury, resulting in a verdict and judgment in favor of plaintiff for $2,000. The' allegations of the complaint are to the effect that the plaintiff was duly appointed by the county court of Multnomah County, Oregon, as administratrix of the *332estate of Charles Scholl, deceased, and ever since has been and now is the duly appointed, qualified, and acting administratrix of such estate; that on and prior to the 24th day of August, 1908, plaintiff’s intestate was a guest at Collins Springs Hotel, in the State of Washington, which hotel was conducted by the defendant, the proprietor thereof; that on the night of the 23rd or the morning of the 24th day of August, 1908, at about 2 o’clock a, m., the plaintiff’s intestate fell from the porch of the above hotel to the ground, thereby breaking his leg, rendering him unconscious, and severely crippling him; that the defendant carelessly and negligently failed, neglected, and refused to place any railing or lights on and around the porch of the hotel to warn and prevent plaintiff’s intestate from falling therefrom; that the porch was dangerous on account of its height from the ground; that, on- account of such lack of railing and light upon the porch, plaintiff’s intestate. fell therefrom and was injured and crippled. It is further alleged that the defendant knew of the condition of plaintiff’s intestate, but carelessly and negligently failed and neglected to pick him up or remove him to the house and care for his injuries; that Scholl’s injuries were not necessarily fatal, and would not have caused his death had he been removed to the house and given medical care, nursing, and attention at the time the defendant was notified and had knowledge that he was lying helplessly on the ground outside of the hotel; that the defendant carelessly and negligently allowed plaintiff’s intestate to remain outside, exposed to the inclement weather, and that, by reason of such carelessness and negligence, Scholl contracted pneumonia, from which he died on August 26, 1908, in Portland, Multnomah County, Oregon; that the deceased man was 32 years of age and earning $6.00 per day; that, by reason of his death, his estate has been damaged in the sum of $7,500.
*333The defendant by his answer admits that he was the proprietor of the hotel and that the decedent was a guest thereat; but denies the other material allegations of the complaint. The defendant further alleges that plaintiff’s intestate was intoxicated, and by reason of his own neglect caused the accident whereby his leg was broken; that without the knowledge, notice, or fault of the defendant, while in such drunken condition, plaintiff’s intestate remained outside of the hotel through his own fault; that, as soon as the defendant knew of the condition of decedent, he did all in his power to obtain medical assistance and relief. The reply put in issue the allegations of the answer. The defendant demurred to the complaint for want of sufficient facts to constitute a cause of action. At the close of plaintiff’s testimony, counsel for defendant moved for a nonsuit, and also asked the court to instruct the jury to find a verdict for defendant.
I am unable to concur in the majority opinion of my associates. It is urged by counsel for defendant in their brief that the court should have dismissed the action upon its own motion, for the reasons: That the county court of Multnomah County, Oregon, was without jurisdiction to appoint an administratrix of the decedent’s estate; that the circuit court had no jurisdiction to try the case; that there was no estate entitled to bring the action; and that the appointment of the administratrix was void. In order to sustain the allegation of the complaint as to the appointment of the administratrix, the defendant offered in evidence the order and decree of the county court of Multnomah County, Oregon, appointing Mary J. Scholl as administratrix of the estate of Charles Scholl, deceased, and ordering letters of administration to be issued to her. Counsel for defendant challenges the right of plaintiff to maintain this suit.
Section 68, L. O. L., provides that the defendant may demur to the 'complaint when it appears upon the face *334thereof: (1) That the-. court has no jurisdiction of the person of the defendant, or the subject of the action; or (2) that the plaintiff has no legal capacity to sue. Section 71, L. O. L., enacts that, whenever any of the matters enumerated in Section 68 do not appear upon the face of the complaint, the objection may be taken by answer. Section 72, L. 0. L., makes the provision that, if no objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection of the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. Referring to the issues raised, it does not appear upon the face of the complaint, that the plaintiff had no capacity to sue. Owings v. Turner, 48 Or. 462 (87 Pac. 160) ; Wilson v. Wilson, 26 Or. 251 (38 Pac. 185.)
It was incumbent upon the defendant, if he desired to raise the question of the right of plaintiff to prosecute the action, to present the same by a proper plea. This would have been in the nature of a plea in abatement, which was waived by defendant pleading to the merits. Prior to the amendment of Section 74, L. O. L., in 1911 (see Laws 1911, p. 144), a plea in abatement was waived by pleading the same together with a plea in bar. Hopwood v. Patterson, 2. Or. 49; Fiore v. Ladd, 29 Or. 528 (46 Pac. 144) ; Morgan’s Estate, 46 Or. 233 (77 Pac. 608: 78 Pac. 1029); Rafferty v. Davis, 54 Or. 77 (102 Pac. 305). Under these circumstances, after the trial of the cause had progressed for some time, we do not think that the defendant was in a position to raise the question as to the capacity of the plaintiff to bring the action.
Considering the motion for a nonsuit and the request of defendant for a directed verdict, it appears from the evidence that the defendant was the proprietor and manager of a health resort consisting of hotel, hot springs, *335and grounds, and that plaintiff’s intestate was a guest at such resort occupying a room at the hotel; that Lola Loomis, one of the guests at the hotel, was awakened at about 2 o’clock on the morning of the accident by a human being yelling in great agony for help. According to her testimony, she went to the defendant’s room and called him. Together they went to the rear porch of the hotel, with a light, where they saw Charles Scholl, the decedent, lying on the ground four or five feet from the rear of the porch. The defendant said to him, “Well, what in the hell is the matter down there?” Scholl •answered, “Well, there is a wire on my leg cutting me to the flesh; come down and take it off.” They went down to where Scholl was, and the defendant again asked him what the matter was, whereupon Scholl repeated his complaint and held up his leg. At this the defendant said, “You get up and get away from here, or I will get someone to take you away.” And Scholl replied, “All right, if I can get away on one leg I will go.” Scholl then tried to get up on one leg and fell in a helpless condition. The defendant did nothing more, returned to his room, and left the man lying in the roadway. Miss Loomis further testified that there was no light and no railing on the back porch at that time, and that the porch was about eight feet from the ground.
From the evidence it appears that the man was thinly clad, and that-the weather was cool and damp; that the roadway was a driveway used in connection with the hotel, between the hotel and its electric light power house. ' It appears, however, that Captain Belcher, the proprietor, went down to the dining room and placed a light in the window where it would shine on the decedent, who, as he states, was out by the woodshed near the power house. He claims that he watched the man for one and three-quarter hours and then retired again. The *336testimony also tends to show that on the morning of the accident, at about 6 o’clock, the decedent was found in a delirious condition lying on some planks back of the power house, with his leg broken in two places between the knee and ankle so that the bone protruded through the flesh; that about 8 o’clock of the same morning the defendant was appealed to for aid, and, on being asked for a drink of whisky for the injured man, said, “Give him nothing.” Upon being told that the man would die if he did not give him something, the defendant replied, “Let the s- of a b- die, I would not give him anything.” It further appears that someone asked defendant for an old sheet for bandages, and that he replied that he had none; and that he would not let the decedent be taken into the hotel.
It is also in evidence that the power house where Scholl was found was 75 feet from the hotel; that there was a light in the hall, near the center of the hotel, at the head of the stairs; that the electric lights were usually turned off at 11 o’clock, after which oil lamps were lighted and placed near the head of the stairway; and that once in a while these lights went out. It appears that the decedent was playing cards in the hotel office the evening before the accident. When found in a delirious condition he was thought to have delirium tremens. After it was ascertained that the decedent’s leg was broken, he was put on a stretcher and carried into the power house, which was warmed only by the sun. It seems that the defendant telephoned for a doctor, a distance of 10 miles, and, failing to obtain one, had the decedent taken upon a stretcher to a boat landing— at about 9 o’clock — where the injured man waited for nearly two hours before being taken on the boat to the Good Samaritan Hospital in Portland, where he died the next morning about six hours after reaching there. It appears that the clothing of the decedent was damp *337when he was taken upon the boat, and that when he arrived at the hospital he was in a semi-conscious condition suffering from a low type of pneumonia which caused him to be delirious.
Much of the evidence on the part of plaintiff is contradicted on the part of defendant, who claims that all the porches had railings with the exception of the rear porch, which was one foot above the ground; the roadway being eight or ten feet below the level of the back porch. The defendant states that he asked the decedent to either come into the house or go away; that he recognized the man to be Charlie Scholl, who registered at the hotel August 23rd; that the man was really delirious. He further states that he did not understand any one to ask for bandages, and that he did not remember using the language attributed to him, and furthermore had no occasion to use it; that he had never observed Scholl around the place under the influence of liquor. In short, there was evidence introduced on the part of plaintiff tending to sustain the allegations of the complaint. We have nothing to do with the conflict in the evidence. This was settled by the "verdict of the jury. It is contended on behalf of defendant, in support of the motion for a nonsuit, and as alleged in the further and separate answer, that the decedent came to his death through alcoholism. The defendant, however, testified on cross-examination to the effect that he never saw the deceased in an intoxicated condition while a guest at the Springs. It appears that no complaint was made to the defendant by any of the guests.
The testimony of McCosky, Fallon, Dr. McKay, Mrs. Scholl, and Mr. Deckenbach tends to show that the decedent did not die from alcoholism. The jury by their verdict found that the death of plaintiff’s intestate was caused by the negligence and carelessness of defendant in failing to have lights and a railing on the rear porch, *338and in failing to care for decedent when he had notice of the man’s physical condition and knew, or should have known, that if he were left outside, exposed to the inclement weather, he would contract some disease which would probably result in death.
It is urged by counsel for defendant that the defendant owed no duty to plaintiff’s intestate, and therefore the court erred in permitting the jury to consider the evidence as to what occurred outside of the hotel. The driveway where defendant found decedent appears to be connected with the resort and a part of the hotel premises. It can hardly be said, either from a legal, moral, or humane standpoint, that the proprietor of a hotel is relieved of all duty to his guest when the latter crosses the hotel threshold and goes outside upon the grounds. It is the duty of the hotel keeper to take reasonable care of his guests so that they are not injured by want of care on his part while they are at the inn as his guests. Wandell’s Law of Inns, Hotels, and Boarding Houses, p. 114. The defendant did not stand in the position of a stranger to Scholl at the time the decedent was found in the driveway of thé hotel crippled, delirious, and pleading for help. The evidence tends to show, and the jury by their verdict in effect said to defendant: Charles Scholl, the decedent, was your guest, and ye took him not in; in pain and delirious, helpless, with a broken limb, prostrate upon the ground, and ye ministered not unto him; thirsty, and ye gave him no drink; partially naked, and ye clothed him not; he asked for bandages with which to bind his broken limb, and ye gave him no cloth.
The law states that it was the duty of the defendant to take reasonable care of Scholl while the latter was a guest at his summer resort. The jury found, from the evidence, that the defendant was negligent in his duty, causing damages to the decedent’s *339estate in the sum of two thousand dollars. The apparent reason that the defendant did not render aid to decedent was that he thought him intoxicated. In the case of Cincinnati, New Orleans & Texas Pac. Ry. Co. v. Marrs’ Adm’x, 119 Ky. 954, 962 (85 S. W. 188, 190: 70 L. R. A. 291, 294: 115 Am. St. Rep. 289), the court said: “In the case at bar, appellant’s servants knew Marrs was drunk, and the circumstances surrounding him were such as would lead any reasonably prudent person to believe that he was incapable of caring for himself.” This was held as a reason why such aid as common humanity required should have been rendered the decedent. In the case at bar, the defendant, having invited the decedent and the public to his health resort, was under more than a moral obligation to render aid and care to the decedent who was his guest. When he found plaintiff’s intestate in a helpless condition, delirious and unprotected from the elements, the negligent failure to perform his duty rendered him liable for the natural consequences of his neglect. Northern Central Ry. Co. v. State, 29 Md. 420 (96 Am. Dec. 545).
In the case last cited it appears that the deceased was run over by a train of cars of the Northern Central Railway Company. After the train was stopped, the injured man was found upon the pilot of the engine in a helpless and apparently lifeless condition. The employees of the company moved him to a warehouse where they locked him up for the night. On opening the warehouse in the morning, the man was found to have come to life during the night and to have afterwards died from the hemorrhage of an artery which had been severed by the collision. It was held that, from whatever cause the collision occurred, after the train was stopped it became at once the duty of the agents of the defendant, in charge of the train, to remove the injured person, and to do it with a proper regard to his safety and to the laws *340of humanity. At page 440 of 29 Md. (96 Am. Dec. 545), of this case, the court said: “Negligence, in a case like this, is not so much a question of law as it is a question of fact, depending for its determination upon a consideration of all the attending facts and circumstances, in connection with the ordinary habits, conduct, and motives of men. For the trial and determination of such a question, a jury of experienced and intelligent men are peculiarly adapted.” This case is cited and the principle enunciated and approved in Baltimore & Ohio R. R. Co. v. State, 41 Md. 268, and also in Dyche v. Vicksburg, Shreveport & Pac. R. R. Co., 79 Miss. 361 (30 South. 711).
It is a rule of the common law, recognized as necessary to good order and to the proper protection of society, that, in the exercise of his legal rights, one is bound to observe ordinary care not to injure others. As subjects of this general duty, persons under disability constitute no exceptions. And one who is guilty of a breach of such duty as to them may be held liable for the consequences although his act or omission might have been attended with less serious results, or might not have resulted in injury at all, but for the injured person’s previous disability. But the law goes further and imposes the duty of exercising special care toward persons more or less disabled from caring for themselves. Note to Union Pac. Ry. Co. v. Cappier, 69 L. R. A. 513, on page 514.
It would seem that the injury and danger would have been greatly lessened if the defendant had allowed Scholl to be taken into the hotel the next morning after the accident and warmed and cared for, as the evidence tends to show he was requested to do.
There are but few similar cases in the records of the courts in the various states. In the case of Depue v. Flatau, 100 Minn. 299, 303 (111 N. W. 1, 2: 8 L. R. A. [N. S.] 485), the court, speaking through Mr. Justice *341Brown, says: “This is no doubt a correct statement of the general rule applicable to the Good Samaritan, but it by no means controls a case like that at bar. The facts of this case bring it within the more comprehensive principle that, whenever a person is placed in such a position with regard to another that it is obvious that, if he does not use due care in his own conduct, he will cause injury to that person, the duty at once arises to exercise care commensurate with the situation in which he thus finds himself, and with which he is confronted, to avoid such danger; and a negligent failure to perform the duty renders him liable for the consequences of his neglect.” And the court in speaking of the plaintiff, at page 304 of 100 Minn. (at page 3 of 111 N. W.: 8 L. R. A. [N. S.] 485), says: “He was taken suddenly ill while their guest, and the law, as well as humanity, required that he be not exposed in his helpless condition to the merciless elements.”
In the case of Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 525 (74 Pac. 15, 19: 63 L. R. A. 238: 98 Am. St. Rep. 85), the court says: “No purpose or design on the part of the motorman to injure was essential to defendant’s liability, and the plain object of the instruction was to so inform the jury. By it the jury were substantially told that, although one might not have the actual intent- to injure, still if there is on his part a reckless indifference or disregard of the natural or probable consequences of doing or omitting to do an act, and he does or fails to do the act, conscious, from his knowledge of existing circumstances and conditions, that his conduct will likely or probably result in injury, he is guilty of wanton negligence.”
The court in the case of Bessemer Land & Improvement Co. v. Campbell, 121 Ala. 50, 59 (25 South, 793, 798: 77 Am. St. Rep. 17), says: “The person upon whom the duty of action rests does not discharge it by using *342only the means immediately at hand. If a man is in a place where he will sooner or later be burned to death, and the person upon whom rests the duty of rescue has not at hand a bucket of water with which to extinguish the fire and save the life, but there is time for him to go and get it, he must go and get it. If it is necessary and there is time for him to go a mile for it, he must go that mile for it. Or, if a man is lashed to the top of a tree and likely to starve to death, the person whose duty it is to save him cannot excuse himself because he has no ladder; he must fetch one, and he must go as far as is necessary to fetch one within the time the man may survive.”
In my opinion the questions as to the proximate cause of the injury, contributory negligence, and drunkenness were properly submitted to the jury by the trial court in the following instructions:
“If, on the other hand, you should find that the defendant did not have this railing there, nor this light there, as I have indicated to you, and as a result of their absence the deceased, Charles Scholl, fell, this of itself would not entitle the plaintiff to recover, because there is a proposition of law which says that one shall not be guilty of contributory negligence. * * And though there was negligence on the part of the defendant, if the deceased’s own contributory negligence, concurrently and in combination with the negligence of the defendant, without any intervening or sufficient cause- coming in between, would prevent a recovery. So that, even though there was negligence on the part of defendant, and you should also find there was contributory negligence on the part of the deceased, your verdict must be for the defendant.”
The instruction held to be faulty in the majority opinion is fully cured by the following instructions, which should be considered together with that referred to:
“If, however, you should find there was negligence on the part of defendant, and no contributory negligence on the part of the deceased, then you are to ask yourselves, ‘What was the result of this negligence?’ If, as a result *343of this negligence, this man, the deceased, received fatal injuries — that he was internally injured, that he was made unconscious, and from the exposure which took place there contracted pneumonia — then you will ask yourselves whether that was the result of the negligence of the defendant. If it was — that is, if the negligence of the defendant was the proximate cause of the condition of the deceased — and I will explain to you the meaning of that term ‘proximate cause’ later on, then the plaintiff would be entitled to recover, as I shall hereafter indicate to you.”
The question of intoxication was fairly submitted to the jury by the following instructions:
“Now much has been said about ‘proximate cause,’ and it is well that you should understand that term. By ‘proximate’ is meant ‘next,’ and ‘proximate cause,’ ‘next cause.’ There may be a link in the chain of causes, or there may be an independent cause. What did Mr. Scholl, the deceased, die from? Was he, or was he not, in an enfeebled condition when he came there? Was he, or was he not, addicted to drink, as a result of which his troubles were brought upon him? If those causes independent of anything which happened at Collins Springs, brought about his death, then, of course, the defendant cannot be liable.”
In the majority opinion it is stated: “It is clear that the court should have in any event submitted to the jury the question of whether the defendant knew, or by the exercise of reasonable diligence ought to have known, of the decedent’s broken leg and consequently helpless condition.”
According to the statement of counsel for defendant, on page 46 of their brief, the court did submit this question to the jury. I quote from that page of their brief:
“Succinctly stated, the court instructed the jury * * that defendant was liable if he found deceased outside the hotel in an apparently injured condition, and did not pick him up and provide shelter and protection for him and use reasonable care in treating him till proper medical attention and nursing could be received, and that, *344if defendant knew, or with reasonable care could have known, of deceased being in such condition and could not care for himself, defendant was liable.”
The cause was by the instructions of the trial court fairly submitted to the jury. After a careful examination of all the evidence which is contained in the record, it cannot be said that there is no competent evidence to support the verdict; and, under the provisions of Section 3 of Article VII of the Constitution of Oregon, the verdict should not be disturbed.
The judgment of the lower court should be affirmed.