126 P. 37 | Or. | 1912
delivered the opinion of the court.
According to the bill of exceptions, Mr. Johnson, a passenger on the car. testified for plaintiff to the effect that he looked out of the car window to see why it was running so fast, and saw the boy about 8 or 10 feet from the car tracks. He estimated the distance between the front end of the car and where the boy was to be from -60 to 100-feet, and that at that time the child was standing still. Violet Sundt, a little girl who was playing with the little fellow, said that he got afraid of a dog on the sidewalk and backed off into the car; that he backed all the way from the sidewalk to the track, all
“I instruct you that there was no duty resting upon the defendant’s motorman to slacken the speed of or to stop the car, merely because the deceased was in a safe place upon the sidewalk, or in a safe place in the street, or near the curb, as the defendant’s car approached. No such duty arises until the motorman sees, or, in the exercise of ordinary and reasonable care, should see, that the child or person so situated is about to or liable to get in the path of the approaching car.”
(a) ‘‘If a person, and especially one of tender years, is approaching a street car track, it is the duty of the motorman in charge of said car to slacken the speed or stop the car, if necessary, to avoid a collision. If, therefore, the said. Cesare Cerrano was seen by the motorman in the act of approaching the track upon which said car was being then operated, or ought to have made it apparent, if said motorman was exercising ordinary care, that said Cesare Cerrano was unaware of the approach of said car, or if said motorman, in the exercise of ordinary care, ought to have seen said Cesare Cerrano so approaching said track, and there was then sufficient time for an ordinary skillful motorman to stop said car and prevent a collision with said Cesare Cerrano it was the motorman’s duty to stop the said car and avoid a collision, and if he failed to do so defendant was negligent.”
(5) “If the motorman of said car saw, or in the exercise of ordinary care should have seen, Cesare Cerrano approaching said track in a manner and under such conditions that an ordinarily prudent person observing him would have concluded that said Cesare Cerrano was not aware of the approach of said car, or was paying no heed thereto, then I instruct you that said motorman had no right to assume that said Cesare Cerrano would stop before reaching the track, or would hasten and cross before said car.”
(c) “Even if you should find that the motorman did not see the said Cesare Cerrano approaching said track, if you find that, in the exercise of ordinary care, he should have seen him so approaching said track in front of said car in time for an ordinarily skillful motorman, in the exercise of ordinary care, to have stopped said car and avoided a collision, then, if he failed to see said Cesare Cerrano so approaching said track, and failed to stop said car, defendant was negligent.”
So far as mere negligence is concerned, either party, the one inflicting or the one receiving the injury, is bound by what he knew, or might have known by the exercise
“The standard of care by which Cesare Cerrano’s actions must be weighed is what an ordinarily prudent child of his age would have done, being similarly situated as he was.”
In connection with the principle of “last clear chance,” which we have been discussing this instruction would have been proper if the element of danger had been pleaded; for in estimating the real or apparent danger the motorman was bound to take into consideration all such circumstances. Proximity to a street car track is far more dangerous to a child of tender years than to an experienced adult; and, while in both cases the motorman must use ordinary care, yet the degree of absolute care which he owes to a- child is far greater than that due to the adult. In their brief counsel for the plaintiff claim that this instruction was requested for the purpose of affecting the duty of the motorman towards the child. We have shown, however, no active duty is owing from the motorman towards the child until the latter is or appears to be in danger; and this element is neither pleaded in the complaint, nor mentioned in the requested instructions. This direction would be applicable to the issue of contributory negligence raised by the defendant in its answer; but the plaintiff says it was not offered for that purpose, and states in his brief that contributory negligence was not pleaded or claimed as a defense in the case. In speaking of negligence, the court said to the jury:
“Now, negligence is defined by the law as the failure to do what a reasonably prudent person would ordinarily*430 have done under the circumstances of the situation, or doing what a reasonably prudent person would ordinarily not have done under the circumstances of the situation.”
This states the general principle upon which the conduct of a person is based, a departure from which would be negligence. Considering the purpose of the plaintiff in offering this instruction, and his disclaimer of the matter of contributory negligence, we cannot say that the court erred in omitting to give this instruction, especially when the general principle of negligence was so concisely and fairly enunciated in the charge given by the court.
“The contention for the defendant is that the evidence does not in any way tend to show that the excessive or dangerous speed of the car was the proximate cause of the injury, or that it would not have occurred if the car had been running at a rate of speed perfectly safe and legal. If we assume, as does the argument for the defendant, that the child, without the fault or negligence of the defendant, suddenly and unexpectedly appeared on the track immediately in front of the car, we might conclude that her death was an unavoidable accident, and that the rate of speed would be immaterial; for*431 upon such an appearance upon the track no precaution could have prevented the accident.” '
The fair deduction to be made from this language is that it is a question of fact to be submitted to the j urr whether or not the appearance of the deceased upon the track was so sudden that no precaution would have prevented the accident, and that under such circumstances the lack of proper appliances or the excessive speed of the car becomes immaterial. In the view of the law thus announced, this question was properly submitted to the jury in the case at bar, and the verdict amounts to a finding that the accident would have occurred, notwithstanding the car was moving at an unreasonable rate of speed, or was without proper appliances. The sudden death of a little child under such circumstances wrings the heart of any man above the grade of a brute; but the jury evidently believed from the testimony that the child appeared so suddenly in dangerous proximity to the car that it was impossible for the motorman to stop the car. They must have thought, also, that the babe’s death was pure accident, which reasonable diligence could not prevent, and that the motorman was not negligent, where his shortcoming would be attended with such shocking consequences. The verdict for the defendant is one which we do not feel at»liberty to disturb.
The judgment must be affirmed. Affirmed.