128 P. 850 | Or. | 1912
delivered the opinion of the court.
Exceptions having been duly taken to the language used by the court, it is maintained that errors were committed in charging the jury as follows:
“The laws of this State in force at the time of the death of Ruth A. Thornton provided as follows: ‘Every street car run, operated, or used on any street car line in the State of Oregon, other than operated by horses, shall be provided with good and substantial aprons, fenders, or guards, which shall be constructed so as to be firmly attached to the front end of each car and extended out in front of the front .platform or in front of such car not less than two feet, and so arranged that the forward end of such apron, fender, or guard shall not be more than three inches above the rails; and such apron, fender, or guard shall be built or constructed so as the motorman, or the person in charge of such car, can drop the front end.of such apron, fender, or guard onto the track so as to prevent any person from being thrown down and run over by or caught beneath or under such car.’ I instruct you that defendant’s street car which ran over and killed Ruth A. Thornton was not at the time provided and equipped with any apron, or fender, or guard of the kind and in the manner required by law, and that the fender on said car at that time was not constructed and arranged and attached to said car as required by law.”
The law from which the court so quoted is a part of Section 1 of an act filed with the Secretary of State February 18, 1903 (Laws, 1903, p. 94), and now incorporated in Section 7007, L. O. L. The remainder of the section referred to reads as follows:
“Provided, that however, in the judgment of the mayor and the members of the common council of any city or town incorporated under the laws of this State, it shall be deemed for the best interests of the residents and inhabitants of any such city or town to substitute in lieu of the apron, fender or guard, hereinbefore provided for, another approved design of apron, fender, or guard, said mayor and said city council shall' have such right whenever there shall be entered upon the records of said city or town the reasons for making such substitution.”
Pursuant to the proviso quoted, the legislative body of the city of Portland on September 7, 1904, adopted a resolution substituting for the appliances prescribed by such statute the Hunter dropguard fender for use upon the cars operated on the defendant’s city and suburban lines. This resolution was rescinded May 16, 1907, but on the 19th day of the following month another resolution was adopted reaffirming the resolution of September 4, 1904, and providing for the use on the defendant’s cars of such fender for a period of four months from July 1, 1907. October 27, 1907, another resolution was adopted providing that such fender, then in use by the defendant in Portland, should continue to be the legalized guard until such time as the common council should decide otherwise. It is argued that conformable to the act of February 18, 1903, the resolutions referred to were adopted, and, the latter determination of the common council being in force when the accident happened, the rule thus prescribed governed the operation of the car causing the injury, which car at the time of the hurt was equipped with the Hunter dropguard fender as directed, and, this being so, the jury were improperly instructed that such car at that time was not provided with a fender constructed, arranged, or attached as required by law. In support of the legal principle thus asserted, the defendant’s counsel cites the case of Plinkiewisch v. Portland Ry., L. & P. Co., 58 Or. 499 (115 Pac. 151), where it is maintained that the resolutions adverted to were upheld as proper exercises of the .authority conferred by the statute. In that case no question was suggested in the briefs or intimated at the trial in this court that the measure of the police power granted by the proviso mentioned could be employed in
“The power and authority given to the council by the charter can be exercised only by ordinance, unless herein otherwise expressly provided.”
Subdivision 46 of Section 73 of Article IV of that charter, conferring power upon the council, authorizes
“If you find that the defendant’s car which ran over and killed Ruth A. Thornton had been at the time provided and equipped with an apron or fender or guard of the kind and in the manner required by law, the life of said Ruth A. Thornton would have been saved thereby, under the. instructions I give you on that subject, your verdict should be for the plaintiff.”
An exception having been taken to this part of the charge, it is insisted that an error was committed in this respect. It is argued that the language thus employed ignores the element of contributory negligence, and that no evidence was offered tending to show that the life of this little girl could have been saved by the use on the car of such a guard as is described in the statute. The court in another instruction, referring to the measure of caution required of her, said, in effect, that she could not be held to the same degree of care for her safety as would
The evidence shows that the fender on the car causing the injury, instead of extending out in front of the platform not less than two feet and so arranged that the forward end of the guard was not more than three inches above the rails, as required by Section 7007, L. O. L., did not reach as far forward as the front of the platform and was about 10 inches above the track. This guard could be lowered by stepping on a bolt in the vestibule whereupon the apron fell of its own weight to a line much nearer the rails. The motorman who had charge of the car when the accident occurred testified that when the little girl came into sight in front of the horses that were attached to the garbage wagon, which vehicle had
Other errors are assigned, but, deeming them unimportant, the judgment is affirmed. Affirmed.