148 P. 72 | Or. | 1915
delivered the opinion of the court.
Henry Meeve and Lewis Pitts were competent to give an estimate of the rate of speed and did so; and they amplified their testimQny by explaining that the car was not only going fast, but was traveling faster than cars were ordinarily operated. Ida Enkeles and Rebecca Bareli each stated that the car was running fast, and that the speed was faster than the ordinary rate. Resolved to its final analysis, a description of cars going fast is but a conclusion involving an opinion, and so, too, is the statement that a car is going so many miles per hour, the difference being that the former is less definite than the latter, and yet in both instances the testimony is competent, if the witness
“It is probable that in the present case the testimony of these witnesses was of little worth, but yet there was no error in receiving it, and it was competent as far as it went.”
The testimony here complained of merely constituted one way of saying that the car was going unusually fast. While a somewhat different basis of comparison was used, yet the instant case is analogous in principle to Blue v. Portland Ry., L. & P. Co., 60 Or. 122 (117 Pac. 1094). In that case the witness Becker did not disclose what, if any, standard he had in mind when referring to the car as going at a very fast rate; but in the case in hand each of the four witnesses described' the speed with relation to the rate at which cars were ordinarily operated, and two of them gave an estimate in miles per hour. Assuming that the standard employed for comparison was too broad and not sufficiently definite, or even conceding that the opinions expressed by the witnesses Ida Enkeles and Rebecca Bareli might have been technically objectionable, nevertheless, in the appropriate language of Mr. Justice’Moore, as recorded in Blue v. Portland Ry., L. & P. Co., 60 Or. 122 (117 Pac. 1094), we conclude that “from the number of witnesses who, without objection, testified with respect to the rate of
“In other words, the court holds that the ordinance limiting the speed by which vehicles traveling upon the streets mentioned in the ordinance including street-cars — that it was not unlawful to run them at any speed within 25 miles an hour, outside of the re*223 stricted district, and this section is conceded to be outside of the restricted district.”
In other words, the court told the jury that he held, as a matter of law, that it was not unlawful to run at any rate of speed within 25 miles per hour. The instructions, as a whole, are predicated on the theory that the rate of speed prohibited by ordinance was 25 miles per hour, and that it was not unlawful to operate cars within the specified maximum.
“This instruction means that a person should not go upon a street-car track without first looking to see whether or not there is a train approaching. He does not necessarily have to stop, unless, of course, his view up or down the track, as the case may be, is obstructed to such an extent he could not see any distance. In that case he will be obliged to use such precaution as an ordinary careful and prudent man would use to ascertain whether or not a car was approaching him, so as to endanger him if he attempted to cross. ’ ’
The instructions objected to in effect informed the jury that a person must in any event, and under all circumstances, first look to see whether a train is ap
“This proper precaution, as he court has said, is the use of reasonable care, such as an ordinarily prudent and careful, man would have used or should have used, under the circumstances.”
The requested portion of the instruction told the jury that the plaintiff was obliged to keep a proper lookout and listen. It will be observed that the extent of the duty, as described in the requested instruction, was limited by the term “proper.” The portion objected to may be construed to mean that the plaintiff was bound actually to look and listen and to do so to the extent that a reasonably prudent person would have done; or it may be considered to mean that, if a person keeps a proper lookout and listens, it is in fact
Another assignment of error relates to the giving of a requested instruction and addition thereto.
“That means to say that he must have used due care, or must have used ordinary care and caution in the operation of his car at the place and time when he first beheld the car coming down the track toward the crossing. He must have done what an ordinarily prudent and cautious man would have done at that time under all the circumstances of the case. If he did not do that, he would, of course, be guilty of negligence/’
If the plaintiff saw the car in such close proximity that he knew or should have known that to proceed further was liable to result in a collision, and if at the time, by using due care, he could have stopped, but made no. effort to do so, he would have failed to measure up to the obligation imposed by the law. The fact that a person sees a street-car approaching does not
“The real question, however, is what a reasonably prudent and cautious man, exercising his faculties for his protection, would have done under all the circumstances, and not what the plaintiff thought, although
The plaintiff was entitled to explain what he saw and how the situation appeared to him, and then it was for the jury to say whether, under all the evidence, the plaintiff did in fact use reasonable care.
Having considered all the assignments of error discussed in the brief filed by defendant and finding no prejudicial error, the judgment is affirmed.
Affirmed. Rehearing Denied.