97 P. 715 | Or. | 1908
Opinion by
The motion to strike out the answer of defendant was properly denied for two reasons:
“I stepped down with my right foot, supposing the car was standing still, and when I got—and the first thing I knew I was on the ground. What happened*441 when1' I stepped my left foot down I don’t know, but I seemed to be—the first thing I knew I was landed on the ground just in a whirl, like that (indicating), right on my own siding, right on the sidewalk.”
As to whether the car had in fact stopped at the time she attempted to alight, or was still moving, she does not know. In one part of her testimony she says:
“After we passed Eighth street I signaled to the conductor to stop the car, as I always did, and he put his hand up to the rope and signaled, of course, and it slowed down and stopped at my landing, and as far as I knew the car was standing still. I got up, and went to the door, and stopped, and steadied myself _ at the inner door, as was my custom always before trying to alight, and especially when I was alone.”
In another place she says:
“I came along, as I said, and came out that door, and passed down the steps at my own landing, supposing the car was standing still. There was nothing to make me believe it was not standing still, and as I passed down, whether it started just as I stepped, or whether it was going, I could not say; but I know that I thought it was standing still, and I was at my own landing.”
Again, when asked what made her think the car was standing still, she says:
“Well, just as I have always thought it, and the only thing I know about it, I came there and steadied myself to go down the steps, as I always did, because the last jerk of the car stopping always will pitch any one, and I always avoided against that, and I always steadied myself there at the inner door before walking down, and I did so that night, and then proceeded on my way, and as I stepped down I was thrown.”
This is all the testimony on behalf of plaintiff on the question whether the car had stopped at the time plaintiff attempted to alight or was still moving. Whether the car started suddenly, while she was in the act of alighting, she is equally ignorant. In reply to a question by one of the jurors as to whether the conductor
“Whether he was still ringing the bell to stop, or whether he was ringing to start it again, I do not know; but this one thing has been clear in my mind all the time: I could swear that he had his hand on the rope as I passed him, as I came the length of the car and passed him; that is all I have to say.”
But in answer to the direct question: “Now, do you know whether, as a matter of fact, he rang the bell at any time?”—she answered:
“I don’t know, sir; I could not tell that. I don’t think any one could tell that.”
Nor is this a case where negligence can be implied from the mere fact of the accident. Actions of this kind are not exceptions to the general rule that the burden of proof is on the plaintiff to prove negligence, when it is denied by the defendant. There is a class of cases in which negligence may be presumed from the relation of the parties and the manner of the accident: Booth, Street Railways, § 361; Goss v. Northern Pac. R. R. Co. 48 Or. 439 (87 Pac. 149) ; Chicago City Ry. Co. v. Catlin, 70 Ill. App. 97; Bradley v. Railway Co. 94 Mich. 35 (53 N. W. 915). But this is not one of them.
It follows that the judgment must be affirmed, and it is so ordered. Affirmed.