Tompkins v. Portland Ry., L. & P. Co., 150 P. 758

150 P. 758 | Or. | 1915

Mr. Justice Bean

delivered the opinion of the court.

At the close of the evidence the court was requested by the defendant to give certain instructions the refusal of which is the basis for various assignments of error.

1. Assignment No. VIII embodies the following requested charge:

“Gentlemen of the jury, you are instructed that before the plaintiff can recover in this case it is necessary for her to show, by a preponderance of the evidence, that not only did she intend to board the car, but had given some notice to the persons in charge of the car so that the persons in charge of said car knew, or in the exercise of reasonable care should have known, that the person was intending to board said car, and if the persons in charge of said car did not know that the person intended to board the same, and there was nothing that would reasonably lead them to believe that the said party was intending to get upon said car, then the defendant is not liable, and your verdict should be in its favor.”

This requested instruction contains a proper statement of the law concerning the duty of a person about to board a street-car, and as the evidence pro and oon upon this point was conflicting, we think the substance thereof should have been given: Zurcher v. Portland Ry., L. & P. Co., 64 Or. 217, 220 (129 Pac. 126); Foster v. Seattle Electric Co., 35 Wash. 177 (76 Pac. 995); Gaffney v. St. Paul Ry. Co., 81 Minn. 459 (84 N. W. 304).

2. There is little controversy on the question that the stopping of a street-car at the place where passengers are usually received constitutes an invitation to the public to board the car and become passengers. This invitation continues while the car is standing. The starting of the car is a withdrawal of the invitation. While the latter continues it is the duty of those in charge of the car to use at least reasonable care to see that anyone who attempts to board the car and who puts himself in a position to be readily seen by the person in charge thereof is not injured while boarding the same. During the time the invitation is so extended those in charge of the car are compelled to keep a lookout for persons who may seek to take passage thereon: Dean v. Third Ave. R. Co., 34 App. Div. 220 (54 N. Y. Supp. 490); Dudley v. Front Street Cable Ry. Co. (C. C.), 73 Fed. 128; Devroe v. Portland R., L. & P. Co., 64 Or. 547, 556 (131 Pac. 304).

3. Eegarding this point, the only question for our determination is whether or not the substance of the requested instruction was contained in the charge given by the court to the jury. Among other instructions, the court gave the following:

“The plaintiff in this case was not obliged to signal the officers of the company if she was present at a stopping place when the car was stopped and they knew, or in the exercise of reasonable care should have known, that she was present there, intending to board the car, because, as I further explained, that constitutes an invitation to the public to enter the car, and if one accepts an invitation and goes upon the running-board and is in the act of entering the car, he is already a passenger of the company. * * One who desires to board a car and intends to avail himself of an invitation extended should put himself reasonably in a situation where it is either known to the operatives that he is intending to board the car, or in the exercise of reasonable care should have been known. ’ ’

It appears that the charge given by the court fully explained the necessity of the manner of the plaintiff’s giving notice of her intention to board the car, and while not in the exact language requested by counsel, it is to the same purport, and properly directed the minds of the jurors in that regard.

4. Defendant also requested the court to instruct the jury as follows:

“The court instructs the jury that if you believe from the evidence that the defendant’s train at the time of the accident stopped for the purpose of receiving such passengers as desired to take passage thereon, and remained standing for a sufficient length of time to permit all those who appeared to the conductor in the exercise of due care to desire to take passage on said train, and that at the time the conductor gave the signal to proceed the plaintiff was not in such a position, with reference to the train of the defendant, that it was apparent to the conductor in the exercise of due care she desired to become a passenger, then I charge you that the act of the conductor in starting the car, if you find that to be a fact, would not be construed as negligence on the part of the company.”

Concerning this requested instruction, we are of the same opinion as above stated in regard to the first request: Gaffney v. St. Paul Ry. Co., 81 Minn. 459 (84 N. W. 304); Pitcher v. People’s St. Ry. Co., 154 Pa. 560 (26 Atl. 559). For a like reason we turn to the charge given by the court to ascertain whether the request was covered:

“Now, gentlemen, your inquiry will be first whether the company was negligent in the particulars alleged in the complaint, and if you are satisfied by a preponderance of the evidence that this car came to a fnll stop at the usual stopping place for receiving passengers, and that while it was so stopped the plaintiff attempted to board the car in the usual and reasonable way, and while so doing the defendant, without paying care or attention to her safety, started that car and she was thereby injured, then the company is guilty of negligence in this case, and your verdict will be for the plaintiff, unless she contributed in some way to that injury herself. * * If you should find from the evidence in this case that after this train had started in motion, after having been stopped and giving a reasonable opportunity to people to board it, it was started again in motion, and this plaintiff ran after the train and attempted to board the car, and by reason thereof was injured, then she will have contributed to the injury in this case; and the law of this state is that there are no degrees of negligence, and when both parties contribute to the injury, when both parties are guilty of negligence contributing to the injury, the law simply leaves the parties where it finds them, and the result of that, of course, is that no recovery will be had in the case..* * ”

The instruction given fully explained the law as set forth in the second requested instruction referred to, and fairly submitted the cause to the jury upon this phase of the case. There was therefore no error in refusing to give the requested instructions in the exact language submitted.

5. During the argument to the jury by counsel for plaintiff, the attorney for the defendant objected to certain remarks which were claimed to refer to the failure of the company to settle the case. There was some dispute between counsel as to the purport of the argument, plaintiff’s counsel contending that the remarks were in answer to the argument on the part of defendant to the effect that the action was hastily brought,-and counsel for defendant claiming they referred to a want of offer to compromise. The court, apparently being engaged in the preparation of the charge to the jury, did not hear the remarks, but instructed them to confine themselves to the evidence in their consideration of the case, and if such remarks were made to disregard them. An examination of the record leads us to believe that the main question in the case was the one bearing upon the right of the plaintiff to recover, which was fairly submitted to the jury. The manner of conducting the trial and the amount of the verdict do not indicate that the amount was increased, or that the jurors were influenced by any improper remarks of counsel. The record does not contain the argument. There was no reversible error committed in the rulings of the court.

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

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