263 P. 64 | Or. | 1928
This is an action brought by plaintiff for damages caused by a collision between its taxicab and the automobile of defendant whereby plaintiff claimed it was damaged in the sum of $332.05. The defendant answered, denying that there was any negligence on his part, and alleged that on the day of the accident he was driving south in his automobile on Fourth Street in the City of Portland, and, after giving the proper signal, entered the intersection of Fourth and Oak Streets and turned to the left to go east on the right side of Oak Street; that he was driving at a speed not to exceed 10 miles an hour and had reached and was crossing the car line on the east side of said intersection when he was struck by plaintiff's car, the said collision being the accident mentioned in plaintiff's complaint; that at the time W. Santore, an employee of plaintiff, was driving one of plaintiff's taxicabs north on the east side of Fourth Street at a rate of speed of 30 or 40 miles an hour contrary to the traffic regulations of said City of Portland according to the provisions of Ordinance No. 32,923, which ordinance limits the maximum speed of an automobile to 20 miles per hour on the streets and 10 miles on the intersections; *612 and that at the time defendant turned to the left in said intersection, plaintiff's car was about the middle of the block and 100 feet or more south of the intersection, and he had ample time to avoid the collision, if he had exercised due diligence in driving and obeyed the traffic regulations of said city.
The defendant further alleged that, by reason of the reckless driving of plaintiff's car, it caused a collision with the car of plaintiff to defendant's damage in the sum of $182.50, for which sum he counterclaimed.
The case was tried before a jury, which returned a verdict in favor of defendant against the plaintiff for $182.50, and from this judgment plaintiff appeals.
AFFIRMED. The plaintiff in this case assumed that the counterclaim of defendant is in the nature of an action upon an ordinance, and claims that said ordinance has been superseded by the state law and, therefore, defendant has not shown any cause of action. It is true that the defendant's counterclaim refers very frequently to the city ordinance and plaintiff's violation of it; but, independently of the question, as to whether this portion of the ordinance has been superseded, the counterclaim states a good cause of action under the state law. The sum of it is that defendant was lawfully traveling on Fourth Street in the City of Portland, and at the intersection of *613 Fourth and Oak Streets, after giving the required signal, he turned to the left on the right side of Oak Street to go east; that at the time he made the turn plaintiff's car was 100 feet or more south of the intersection and on the right side of Fourth Street, and, while he was in the act of crossing the car track on Fourth Street, plaintiff's taxicab, which was driven at an excessive rate of speed, from 30 to 40 miles an hour, skidded into defendant's car with the result that defendant's car was damaged in the sum of $182.50.
Plaintiff lays great stress upon the fact that the defendant saw the car coming north on Fourth Street at a distance of 100 feet, when he made the turn, and seems to assume that, if the cab was progressing along Fourth Street at any distance where it could be seen, it was defendant's duty to have stopped his car and allowed plaintiff's car to pass before proceeding further. Plaintiff evidently bases this assumption upon some utterances of this court in the case of Ramp v. Osburn,
RAND, C.J., and COSHOW and BROWN, JJ., concur. *615