117 P. 1094 | Or. | 1911
delivered the opinion of the court.
Before considering the exceptions relied upon to secure a reversal of the judgment, a brief description of a section of the defendant’s railway near and at the place where the injury occurred, of the management of the car at that time, and of plaintiff’s movements immediately prior thereto will be given. A double track extends from the Willamette River easterly along Belmont street to Sixtieth street, at Mt. Tabor, which place appears to be a terminus of that line of railway. Twenty-one blocks west of this eastern limit, at Thirty-Ninth street, the tracks curve slightly to the south, at which place the downgrade towards the river is 1% per cent. The motorman who was operating the car going east on the last trip prior to the injury was obliged to leave the car at Thirty-Third street, in order to attend a call of nature. S. M. Fleener, the conductor who had charge of the car, thereupon acted as motorman going to Sixtieth street, and when he was returning on the north track plaintiff became a passenger. She desired to alight at Thirty-ninth street, which crosses
Fleener, as defendant’s witness, testified that he had been in its employ two years and seven months as a conductor, detailed the circumstances of the injury as alleged in the answer, but was not interrogated, in chief, respecting his experience or qualifications as a motorman of electric cars. On cross-examination this witness, over objection and exception, admitted that he was never employed by the defendant as a motorman, in which branch of the service he had not managed an electric car for any length of time; that he had occasionally taken to the barn a car, when a motorman accompanied him, and showed him how to manage it; that this constituted all the experience he had ever had in that line of work; and
It is argued that, as Fleener had not been interrogated in his direct examination in relation to his experience as a motorman, the testimony which he was compelled to give on cross-examination on that subject was inadmissible, and, such being the case the court, in refusing to take from the consideration of the jury the question of his qualification to manage a car, committed an error which was not thereafter remedied by any legal proof to substantiate the issue.
The question of the admissibility of the testimony so received on cross-examination will be first considered. An adverse party may cross-examine a witness as to any matter stated in his direct examination or connected therewith'. Section 860, L. O. L. In construing this clause of the statute, it has been held that, if from the direct examination of a witness the jury could draw an inference, such deduction of fact thereby becomes connected with the testimony in chief, rendering it a legitimate matter of cross-examination. Ah Doon v. Smith, 25 Or. 89 (34 Pac. 1093). Fleener having testified in chief that he had been in defendant’s employ more than two years as a conductor, and at the time of the accident was operating the car as motorman, it might be reasonably inferred that he was competent properly to manage the instrumentalities in his charge, and such being the case the cross-examination was proper, and within the discretion of the trial court. If, therefore, any mistake was committed in denying the request to eliminate the issue of the incompetency of Fleener to operate the car as a motorman, the fault was corrected in his cross-examination, from which the jury were authorized to determine the question.
“Well, the motion of the car was such that I realized that at the speed we were going that something was going to happen at that curve, because apparently the man [Fleener] was not paying any attention to his duties, approaching the curve without checking the speed of the car at all, and I was nervous and expecting something to happen, although I did not see the girl fall; but I was afraid that the car was going to jump the track at that curve at the speed we were going, because the permanent track ended right there at the east side of Thirty-ninth street; that is, went onto the old track, which has been temporarily connected with the heavy rails as it crossed Thirty-ninth.”
After having testified that he had been accustomed to ride on street cars in cities, this witness was asked:
“Well, what do you think the speed of this car was at this time, per hour?”
He answered: “Of course, being in the car, it is a little more difficult to judge than it would be if you stood
It will be conceded that if a witness could have stated upon oath that he knew the ordinary rate of speed of a car at a stated place to be, say 10 miles an hour, and that on a particular occasion the car ran 20 miles an hour, the jury could readily have deduced the conclusion that the speed was unusual. Unless a witness has been a locomotive engineer, or a person whose employment has required an observation of the movement of trains or electric cars according to the schedule prescribed in a time-table, it would be difficult for him to say with any degree of certainty that at a given time and place a certain number of miles had been attained in operating cars. If no other persons than those suggested were competent to express an opinion on this subject, it would necessarily follow that in nearly every inquiry where an excessive and a dangerous rate of speed was alleged as a ground of negligence, a failure of proof would probably result, for it is safe to say that the interest of most employes is, and rightfully should be, with the corporation which secures their services; and, while it will not be presumed or inferred that false testimony would be given, evidence might be suppressed, questions evaded, or answers returned that the rate of speed had not been noted, or, if observed, had been forgotten. In order to meet the requirements of justice, a witness who is not such an expert as has been referred to is permitted to express an opinion as to the condition and appearance of persons and things, and, under such circumstances as were detailed
“Were you not discharged last summer for certain reasons by the company?”
And he replied:
“No, sir; I was not discharged.”
In order to impeach such declaration, Fred Cooper, the defendant's superintendent of transportation, testified as follows:
“Do you know David Fisher, who formerly worked for you and ran on the Portland Heights?”
A. “Yes, sir.”
*131 Q. “I will ask you to state whether or not Mr. David Fisher was discharged by this company last summer, or when he left?”
A. “He was; yes.”
On cross-examination Cooper was interrogated, and, over objection and exception, testified as follows:
“How long had he (referring to Fisher) worked for you ?”
A. “It was a little over two years. I haven’t got the exact date.”
Q. “As a motorman?”
A. “As a motorman.”
Q. “Worked on the Heights’ cars?”
A. “Yes.”
An examination of the testimony given by Cooper in chief, when compared with his cross-examination, shows that the questions so objected to either related to the matter stated in his direct examination, or were so intimately connected therewith, that no error was committed in requiring this witness to answer the questions so propounded.
“The conductor of a street car, so far as the relation of the company owning and operating the car with its passengers is concerned, represents the company, and if an injury results from the negligence of the conductor, or from his wrongful act in permitting the car to be run without sufficient number of persons in charge of' it, or in attempting to run it himself, without sufficient assistance, under the circumstances, the company is liable in damages for the injury sustained, unless the party injured is guilty of contributory negligence, as defined to you.”
Instructions which are within the issues and not essentially inappropriate should be viewed in connec
“It is the duty of a street car company to provide, and keep in charge of its cars, a sufficient number of competent persons to safely and properly operate the cars, under the particular circumstances of the case. I will qualify that 'with a sufficient number of competent persons,’ and will say that I do not wish to imply that there must be two or more, as, if, in your judgment, one person is sufficient for the car, that would preclude the idea of negligence on the part of the defendant. The way this is worded it might appear that it was absolutely necessary that they should have two. That is for you to determine, under the particular circumstances of the case, as to whether it was negligence to have one, and not more than that.”
In another part of the charge, the court said:
“I will instruct you that the fact that there was not both a conductor and a motorman on defendant’s car on which the plaintiff was a passenger does not of itself establish negligence on the part of the defendant such as would render it liable in this action, but you may take such fact into consideration in connection with all the facts and circumstances in the case.” “It is for you to say from all the evidence whether the defendant was negligent under the circumstances in failing to have a conductor, or two men, upon its car at the time this accident happened, and, if you believe that the defendant was negligent in this respect, but find that it was not the proximate cause of the accident, or that the plaintiff contributed to the accident by reason of her own negligence and want of care, then you cannot find the defendant liable for failing to have two men in charge of the car.”
Other exceptions are relied upon, but, believing them immarterial, and that no substantial error was committed, it follows that the judgment should be affirmed, and it is so ordered. Affirmed.