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

155 P. 375 | Or. | 1916

Mr. Justioe Bean

delivered the opinion of the court.

1. It is contended by counsel for plaintiff that there was no evidence justifying the verdict; that under the evidence of the plaintiff, as well as that of the defendant, there could be but one verdict in the case, namely, for the plaintiff, that is, whether the car had stopped before plaintiff attempted to alight, or was moving slowly at the time she stepped therefrom. The evidence above stated discloses a conflict or dispute as to the main allegations of negligence in the complaint. It therefore became a question for the jury to determine from all the facts and circumstances of the case. Considering plaintiff’s claim based upon the evidence of defendant, the following rule would be applicable and is as favorable to plaintiff as can be stated: If two inferences may be fairly and legitimately drawn from the evidence, one favorable and the other unfavorable to a party, a question is presented which calls for the consideration of the jury. Such a case cannot be determined by the court as a matter of law: Anderson v. North Pac. Lbr. Co., 21 Or. 281 (28 Pac. 5); Manning v. Portland Shipbuilding Co., 52 Or. 101 (96 Pac. 545); Devroe v. Portland Ry., L. & P. Co., 64 Or. 547, 555 (131 Pac. 304). The verdict precludes plaintiff’s claim as to this phase of the case.

2, 3. It is now the settled law in this state that, where a cause has been submitted to a jury under a proper charge by the court and there is any evidence to support the verdict, the court will not disturb the finding. We have no authority to decide as to the weight of the evidence: Love v. Chambers Lbr. Co., 64 Or. 129 (129 Pac. 492); Zobrist v. Estes, 65 Or. 573 (133 Pac. 644); Wasiljeff v. Hawley Paper Co., 68 Or. 487 (137 Pac. 755); Saxton v. Barber, 71 Or. 230 (139 Pac. 334). The contention of the plaintiff upon this appeal amounts to an assertion that she was entitled as a matter of law to a directed verdict in her favor. This claim cannot be conceded: Smitson v. Southern Pacific Co., 37 Or. 74 (60 Pac. 907), relied upon by plaintiff, does not contravene the rule here stated, but supports the same. The fact that there is strong contradictory evidence does not change the rule: Wills v. Palmer, 58 Or. 536 (115 Pac. 417). While it cannot be said as a matter of law that it is negligent to alight from a moving car, the circumstances attending the act and the speed of the car make it a question for the jury: McGilchrist v. Portland E. & E. Ry. Co., 79 Or. 91 (154 Pac. 419, 421); Nellis, Street Eailroad Accident Law, 190. The jury evidently concluded that plaintiff carelessly stepped from the car before it reached its regular stopping place and while it was moving so that it was not safe for her to do so under the circumstances, and without fault on the part of the defendant’s servants. It appears to have been rainy at the time and growing dark.

4. The matter of amendment of the complaint was discretionary: Section 102, L. O. L. All the circumstances of the accident appear to have been explained to the jury as the pleading then was, and we cannot say that there was an abuse of discretion by the trial court.

5. Counsel for plaintiff complain of the instruction of the court as to the negligence and degree of care on the part of the defendant. As we understand, it was conceded at the time of the trial that the charge to the jury was correct as far as it went. At the close of the charge plaintiff’s counsel stated:

“We ask the court to instruct the jury that stepping from a slowly moving street-car is not negligence as a matter of law.”

This was refused, and plaintiff’s counsel reserved an exception. This requested instruction would be likely to be understood by the jury as a declaration that in any event such an act would not he negligence. The jury ought not to be required to make nice technical distinctions. The request was not in proper form for the jury to understand, and the trial court should not be required during the closing moments of a trial to frame instructions. There was no error in the refusal.

6, 7. A common carrier owes to its passengers the highest degree of care, prudence and foresight consistent with the practical operation of its car line, or the utmost skill and care consistent with its business, in view of the instrumentalities employed and the danger naturally to he apprehended: McGilchrist v. Portland E. & E Ry. Co., ante, p. 91 (154 Pac. 419). We find no request for instructions prepared by plaintiff except the one noted above. If the plaintiff desired the trial court to instruct the jury as to the degree of care required of defendant or upon any other special phase of the case, proper instructions should have been framed and requested. We do not believe from the record that a more specific charge would have changed the result.

Finding no error in the record, the judgment of the lower court is affirmed. Affirmed.

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