222 P. 988 | Okla. | 1924
The evidence shows that this injury occurred between the street intersections in West Tulsa, along in the evening after dark. The plaintiff was a passenger on a jitney car traveling west and was seated so that he was riding partially out of the car on the left side. The street car involved in this accident was traveling east. There was sufficient drive-way between the street car tracks and the curbing for the passage of traffic with safety. The plaintiff for his cause of action alleged that the street car was being run at an excessive rate of speed in violation of the city ordinance, and that the motorman failed to sound his gong in violation of like rule. The plaintiff further alleged that an automobile was parked by the curbing on the north side of the street, along which the jitney was traveling. The plaintiff testified the automobile was traveling 10 or 15 miles per hour, and further alleged that as the jitney undertook to pass the parked automobile, it came in contact with the street car, resulting in throwing him to the ground with considerable injury. The jitney continued on its journey apparently without damage. It would appear from the testimony of the plaintiff and others that the jitney came so near the street car line that the street car raked the plaintiff from his seat in passing. There was evidently no collision between the automobile and street car. However, it would not be material whether the plaintiff fell to the ground by reason of a collision between the two cars, or was raked from his seat. The motorman in charge of the street car testified he saw the jitney traveling east and meeting him on the north side of the street car line, and traveling in a place of safety. The motorman further testified that *105
his first notice of anything out of the ordinary was when the automobile came in contact with the side of his car. In the trial of this cause judgment went for the plaintiff and defendant has appealed the cause to this court. Various proceedings had in the trial court are assigned as errors herein. Among the several errors assigned are: (1) Error of the court in overruling defendant's demurrer to the evidence of the plaintiff: (2) that the verdict and judgment is not sustained by sufficient evidence; (3) error of the court in refusing peremptory instruction in favor of the defendant. In considering the ruling on the demurrer and the action of the court in refusing the peremptory instruction, it will be necessary to examine the sufficiency of plaintiff's proof to constitute a cause of action. The cause of the injury was the result of the jitney passing on to the street car line, or so near it as to result in the plaintiff being raked from the automobile by the street car. The collision, if it might be termed so, occurred while the automobile and street car were in motion, by reason of the automobile suddenly turning south too near the track in order to pass the automobile which was parked by the curbing. It cannot be contended by the plaintiff that the motorman could have avoided the result of the sudden action of the driver of the automobile. It is true that the motorman testified that he saw the automobile approaching and traveling along the street in the clear on the north side of the street car track. The dangers of passing on to the street car track in front of a street car were just as apparent to the person in charge of the car as to the motorman as the driver of the automobile was then traveling in a safe place. The motorman, so far as the record shows, was justified in believing that the person in charge of the automobile, in the exercise of his normal mentality, would continue driving in a place of safety. Therefore, the motorman was not called upon to bring his car under such control as might enable him to instantly stop the car. The same principles that were applied in the case of Buss v. C., R.I. P. Ry. Co.,
The evidence in this case does not bring the plaintiff within the scope of the "last clear chance" doctrine for the reason that the plaintiff was traveling at all times in the clear until the accident happened. If the street car was traveling at the speed as claimed by the plaintiff, and the automobile was meeting the street car at the speed testified to by the plaintiff, during the time intervening between the time the automobile swerved to the south and the time of the collision, it would have been impossible for the motorman to have checked the speed of the car. It cannot be said that the presence of the parked automobile in connection with plaintiff's journey eastward, would charge the motorman with notice of any danger to the plaintiff, as the plaintiff was traveling in an easterly direction towards the parked automobile, in a safe place. The motorman was justified in presuming that the jitney would continue along a safe pathway of travel. This evidence does not bring the plaintiff's cause within the rule of "last clear chance" as laid down by this court. St. L. S. F. Ry. Co. v. Clark,
Having reached the foregoing conclusions it would serve no useful purpose to consider further assignment of errors in this cause. The court committed error in refusing to sustain defendant's demurrer to the evidence and in refusing to direct a verdict for the defendant.
Therefore, it is recommended that this cause be reversed and remanded for further proceedings in accordance with the views herein expressed.
By the Court: It is so ordered. *106