Clark v. Jones

179 P. 272 | Or. | 1919

JOHNS, J.

1. The defendants’ brief was written before some of the recent decisions of this court were rendered, and a large portion of it is devoted to the contention that the relation of master and servant was not shown to exist between the father and son, and, therefore, that the father, M. L. Jones, was not liable for the negligence of the son, R. E. Jones. However, that question was decided adversely to the defendants in the cases of Houston v. Keats Auto Co., 85 Or. 125-129 (166 Pac. 531); West v. Kern, 88 Or. 247-254 (171 Pac. 413, 1050 L. R. A. 1918D, 920), and Doherty v. Hazelwood Co., 90 Or. 475 (175 Pac. 849, 177 Pac. 432). Hence, the only remaining question is whether or not the testimony is sufficient to sustain the verdict.

2. It appears from the record that there is a crossing of the street-car lines at the intersection of State and Commercial Streets; that the automobile was driven from north to south on Commercial Street, and that the street-car which was standing and waiting to receive passengers on Commercial Street had stopped at a point a few feet south of State Street. The testimony of the plaintiff tends to show that she left the curb on Commercial Street and went directly to, and within a few feet of, the north end of the street-car and then turned south, with a view of going behind and around the south end of the car for the purpose of boarding it on the east side. There is also testimony which tends to show that after she had gone a short distance from the curb she walked diagonally to a point near the south end of the car. She testified as follows:

“Q. Now, when the Commercial Street car came up what did you do?

“A. I waited for the car to stop, and recognized, realized, that car opened on the other side, and that car stopped, and I didn’t want to go in front of the car and walked down the side of the car to the rear so to meet my people when they got there. * *

‘ ‘ Q. And when you came out from the corner toward the car, what part of the oar did you approach?

“A. The front of the car.

“Q. Then what did you do?

“A. Went down the side of the car to the rear. * *

‘ ‘ Q. Why did you turn back toward the rear end of the car?

“A. Because the opening of the car was on the rear, and I wanted to be at the rear when my people got there so I could count them and see if they were all getting on. # *

“Q. Did you hear any approaching of any automobile?

“A. No, I did not.

“Q. Did you hear any horn sounded?

“A. Positively none. * *

“Q. If there had been any horn sounded or any signal of any kind, were you in a position to have heard it?

“A. I was.”'

The witness Paulus, for the plaintiff, testified thus:

“Q. Now, where was the automobile when you first saw it?

“A. I saw it approaching the intersection of the railroad tracks, State and Commercial.

“Q. That was the intersection of the two railroad tracks?

“A. Yes; of course it was on the west side.

“Q. How far was that from the scene of this accident?

“A. Oh, about a hundred feet, I presume; I don’t know just exactly.”

E. E. Cooper, also a witness for the plaintiff, testified as follows:

“A. * * And in passing down the street the streetcar going north, knowing that they always stopped on a certain line—

“_Q. (Interrupting.) Going north on what street?

“A. Commercial; and there was an automobile coming from the north to the south on Commercial I was waiting for this automobile to go past.”

The defendant E. E. Jones testified as follows:

“Q. Now, when you were driving down State Street- — or going south on Commercial Street, I mean, —when did you first discover the plaintiff?

“A. Discover the plaintiff?

“Q. Yes.

“A. As she left the sidewalk just about as I was crossing the car tracks or maybe a little previous to that, running east and west on State Street. ’ ’

While the automobile was going up Commercial Street Magdalene Tuffli was driving it, and the testimony shows that she was an inexperienced driver; that as the automobile approached the street-car the defendant E. E. Jones, fearing* a collision with the plaintiff, took the steering-wheel and swung the machine to within a few inches of the street-car, attempting to drive between the plaintiff and the street-car.

While it may be true that the plaintiff did not see the automobile, it is also true that -she had a legal right to leave the curb and cross the street to the street-car for the purpose of boarding it. The defendant E. E, Jones testified that as the machine approached the street-car it slowed down to about five or six miles an hour, and the evidence for the plaintiff tends to show that it was going about ten miles an hour. It is very-apparent from his own testimony that R. E. Jones saw the plaintiff at least one hundred feet away, before the accident occurred, and that for some distance he saw and knew that the plaintiff and her companions had left the curb and were crossing the street to the car line. It is a matter of common knowledge that an automobile traveling at the rate of five or six, or even ten miles an hour can be stopped within a very few feet. It clearly appears from his own evidence that the defendant R. E. Jones had ample time and opportunity to stop the machine and avoid the accident, but there is no claim or pretense that the automobile was stopped or that any effort was made to stop it.

If, as the plaintiff testified, she had left the curb and crossed the street to within a few feet of the north end of the street-ear and had then turned and gone south, parallel with the street-car, and the automobile was going south behind her, she would not then be in a position to see the automobile and could not see it without turning around. She was lawfully on the street and would have a right to assume that any driver of an automobile coming from behind, who could and did see her for a distance of at least 100 feet, would either sound the horn or stop the machine, to avoid a collision, but she testified that she did not hear the horn although she would have heard it if it had been sounded.

Such a state of facts tends to show that the defendant R. E. Jones did-not exercise reasonable care. The defendants cite and rely upon the case of Harder v. Matthews, 67 Wash. 487 (121 Pac. 983), but it appears from the statement of facts in that case that the plaintiff “walked from behind the express wagon and stepped in front of the approaching automobile without seeing it.” Accepting her testimony as true, as we must for the purposes of this decision, the plaintiff in the instant case went to and within a few feet of the north end of the street-car and then turned and walked south parallel with the street-car to or near its south end, and then without any warning was struck from behind by the automobile. It appears from the testimony that the defendant B. E. Jones saw the plaintiff, after she left the curb, at a distance of at least 100 feet. After a verdict the defendants would be liable under the “last clear chance” rule laid down by this court in Richardson v. Portland Ry. L. & P. Co., 70 Or. 330-334 (141 Pac. 749).

The judgment of the Circuit Court is affirmed.

Affirmed.

Benson, Bean and Bennett, JJ., concur.