Benvie v. Portland Ry., L. & P. Co., 156 P. 266

Benvie v. Portland Ry., L. & P. Co.

156 P. 266 | Or. | 1916

Mr. Justice Benson

delivered the opinion of the court.

1. There are several assignments of error, but we shall consider but one, and that is the action of the court in denying the motion for a judgment of non-suit. It will be observed that the proximate cause of the accident is alleged to be that by reason of the great *641distance between the step and the ground, “before plaintiff’s foot reached the ground, all of her weight was thrown upon the limb remaining upon the said step, and as a result thereof the tendons, muscles and flesh of plaintiff’s said limb gave way and were torn, bruised, wrenched and twisted.” It is an indisputable physical fact that, so far as this allegation goes, the entire weight would have been thrown upon the limb remaining upon the step even if the latter had been within four inches of the ground, or, indeed, even if plaintiff had been walking upon a level surface, and therefore, without some further recital of facts than as disclosed by the pleading, the height of the step could not have had anything to do with the result, and the complaint does not state facts constituting a cause of action.

We therefore conclude that it was error to deny the motion for judgment of nonsuit.

The judgment will be reversed, and a judgment of nonsuit entered here without prejudice.

Reversed.

Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice McBride concur.