26 Or. 155 | Or. | 1894
Opinion by
The bill of exceptions shows that when plaintiff rested his case the defendant moved for a nonsuit, for the reason that there was not sufficient evidence in support of the complaint to be submitted to the jury, which motion having been overruled by the court, an exception was taken, and it is now contended that it should have been sustained. It is also claimed that it was negligence per se on the part of the plaintiff to permit a child of such tender years to go unattended upon a public street where such dangerous machines as cars propelled by electric power were known to be running at frequent intervals. The record shows
1. In passing upon the question presented by the motion, there were two elements to be considered: First, did the plaintiff, by his negligence in not exercising greater care over this little child, contribute to its injury in such a manner as to preclude his recovery ? and, second,
2. The defendant would not be liable for any injury unless its agent had failed to exercise ordinary care and prudeuce in the control and management of its car. The degree of diligence required of the motorman is to be measured by all the circumstances and conditions bearing upon the question of prudence or negligence happening and existing at the time of the accident. At a public crossing of a track it is the duty of one about fco cross to take proper precautions to prevent accidents, but this requirement upon the part of the public does not absolve the defendant from the exercise of greater watchfulness at such, places than'‘at other points on its line: Booth on Street Railway Law, § 305. The motorman owed a greater
3. The question of negligence is generally one of fact, and not of law. If there be any dispute as to the facts, it is clearly a question for the jury; or, if there be no dispute as to the facts, but there may reasonably be a difference of opinion as to the inferences and conclusions deducible therefrom, it is the province of the jury to determine the question: Beach on Contributory Negligence, § 163. In this case it appears that the child injured was in company with her elder brother, who appeared before the jury. His competency and ability to protect her did not depend so much upon his age or size as upon his discretion and knowledge of the apparent danger; and because the child deserted him and upon the rapid approach
In the case of O’Flaherty v. Union Railway Company, 45 Mo. 70, 100 Am. Dec. 343, it appeared that a little girl, aged about two years and eight months, had been sent,
4. The notice of appeal presents other questions relating to the admission of evidence, and to the giving and refusal to give certain instructions, The bill of exceptions contains a complete transcript of the stenographer’s notes