72 P. 329 | Or. | 1903
Lead Opinion
delivered the opinion.
The sole'question for our determination is whether the court erred in refusing defendant’s request to direct a verdict in its favor. The defendant has two parallel tracks, about six feet apart, on First Street, and the deceased was killed by one of its northbound cars on the east track. The evidence for the plaintiff as to the circumstances of the accident consists of the testimony of Joseph Friedman, Joseph Ruvensky,Mrs. Walker, Mrs. Alter, and Mrs. Motts. Friedman, when the accident occurred, was standing on the west side of First Street, about forty or fifty feet north of Mill, and about one hundred feet away. He first saw the car when it was near Montgomery Street, but paid no particular attention to it afterward until he heard some one call out, when he looked up, and saw it strike Wolf. He testified that the car was running at a rapid rate of speed; that he heard no bell rung, or warning given of its approach to the crossing, and'first saw the deceased on the track in front of the car just before it struck him. Mrs. Walker and Mrs. Motts were standing on the north side of Mill Street, waiting to take the car to go down town.
The evidence for the defendant consists of the testimony of passengers aboard the car, and of its operators. C. Grohs was a passenger on the car at the time of the accident, standing on the front platform, at the right of the motorman. He testified that when the car was about the middle of the block between Montgomery and Mill streets
• The motorman stated in his testimony that when about the middle of the block between Montgomery and Mill streets he saw Wolf going from the west to the east side of First; that witness immediately commenced ringing the bell and slowing the car down; that he continued to ring the bell and slacken the speed of the car until within about twenty-five or thirty feet of the crossing, when Wolf stopped in the middle of the west track, and the witness, supposing that he was intending to stand there until the car passed by, released the brake, and let the car roll down to the crossing at a speed of three or four miles an hour; that when within about ten feet of the crossing, Wolf suddenly started to pass rapidly in front of the car, when the witness immediately applied’ the brakes as tight as he could, but was unable to stop the car in time to prevent its striking Wolf; that from the time the car was about twenty or thirty feet from the crossing until ib reached a point about eight or ten feet from it Wolf was standing on the west track, and looking toward the car, there being nothing to obstruct his view; that in the middle of the block the car was running at a probable rate of eight or ten miles an hour, but before it reached the crossing it was slowed down to about three miles. The conductor did not see the accident, as he was inside the car, but he testified that he heard the gong, and that the car slowed down to
From the testimony on behalf of the defendant the conclusion is irresistible that Wolf saw the approaching car, and first thought that he would stop, and wait for it to go by, but probably concluded that he could safely pass in front of it, and in attempting to do so was struck and killed. And it is practically uncontradicted. All the witnesses for the plaintiff who testified on the subject, unless perhaps it was Mrs. Alter, stated they did not see Wolf until about the time he was struck by the car. Mrs. Alter testified through an interpreter. It is possible to argue from her testimony, as contained in the record, that she intended to say that she saw Wolf all the time after he started across the street until the accident occurred, but the physical conditions were such that it was impossible for her to have had him in view during the entire time. She was on the street south of the crossing, standing between it and the approaching car. She was pointing out the car to the child with whom she was- playing, so that her attention must have been more centered on it than on Wolf. It was impossible for her to see both the car and Wolf at the same time, since they were in opposite directions. Again, she was on the east side of the street, and the car must necessarily at some point have passed between her and Wolf, during which time her view was, of course, obstructed. It cannot be said, therefore, that her testimony materially contradicts the evidence for the defendant, or that it alone is sufficient to take the case to the jury, in view of the positive and overwhelming testimony to the contrary of persons whose attention was particularly attracted to the conditions at the time.
2. The deceased was crossing a public street, in broad daylight, at a place where his view was unobstructed. It was therefore his duty to look and listen for a car before crossing the track, and, if he did not, he was guilty of such contributory negligence as would preclude recovery (Smith v. City Railway Co. 29 Or. 539, 46 Pac. 136, 46 Pac. 780, 5 Am. & Eng. R. Cas. N. S. 163; McGee v. Consolidated St. Ry. Co. 102 Mich. 107, 60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507; Ward v. Rochester E. R. Co. 17 N. Y. Supp. 427; Watkins v. Union Traction Co. 194 Pa. 564, 45 Atl. 321), notwithstanding the defendant may have been negligent in running the car at a dangerous rate of speed: Sego v. Southern Pac. Co. 137 Cal. 405 (70 Pac. 279).
3. In addition to this, the'testimony shows that he saw the approaching car, and stopped when near the track, but afterwards concluded that he had time to pass safely in front of it. When he stopped, the motorman had a right to assume that he intended to wait until the car passed before crossing the track, and was not guilty of negligence in releasing his brakes at the time: Sanders v. Southern Elec. Ry. Co. 147 Mo. 411 (48 S. W. 855); Gray v. Fort Pitt Trac. Co. 198 Pa. 184 (47 Atl. 945). Under the evidence adduced, therefore, we are of the opinion that the unfortunate accident was not due to the negligence of the defendant, and the judgment must be reversed, and-the cause
Decided 28 November, 1904.
Rehearing
On Motion for Rehearing.
delivered the opinion.
4. A petition for a rehearing having been filed, it is contended therein that an error was committed in concluding that the lower court improperly denied defendant’s request to direct a verdict in its favor. It is argued that in reversing the judgment, which is based on a verdict, this court reviewed conflicting testimony, and deduced a conclusion from what [t considered to be a preponderance, thereby invading the province of the jury. The testimony of plaintiff’s witnesses tends to show that the day on which the accident occurred was clear and dry; that the rate of speed prescribed by ordinance for.the operation of street cars in the City of Portland was eight miles an hour; that the car causing the injury was heavily loaded with passengers, and running down a steep grade faster than the regulations permitted; that the gong on the car was not struck, nor the speed slackened, until after the injury was inflicted; and that Mr. Wolf, though possessed of good eyesight and hearing, did not halt in crossing the street in front of the approaching car. None of plaintiff’s witnesses, except possibly Mrs. Alter, seems to have observed Wolf as he crossed the street until he reached either the west line of rails — the car being on the east track — or until the car had nearly reached the crossing, so that the testimony of defendant’s witnesses that he halted in the western double track until the car was nearly opposite him before proceeding on his journey is not contradicted. Joseph Friedman, plaintiff’s -witness, who beheld the accident, testified that he did not
Mrs. Eva Alter, who testified by an interpreter, said she was standing south of the southeast corner of Mill and First streets at the time of the accident; that she first saw Wolf as he started to cross the latter street; that he'walked' without stopping; and that she watched the car and Wolf from the time she saw them until the accident happened. The writer hereof entertained the opinion that the testimony of this witness respecting Wolf’s actions immediately preceding the accident was sufficient to dispute the testimony given by defendant’s witnesses, and that based thereon the cause was properly submitted to the jury; but the opinion heretofore rendered states that the position occupied by Mrs. Alter was such as to render it physically impossible for her to have seen Wolf all the time he was crossing the street, because the car, after passing her, obstructed her view of him, and the petition for a rehearing, referring to this declaration, admits: “This is undoubtedly true.” Accepting such concession as a correct statement of the fact, a review of the testimony given by defendant’s witnesses becomes necessary.
Though the witnesses for the respective parties disagree in their testimony in several material matters, the plaintiff’s right of action depends on the consideration of a
In the case at bar we think the undisputed testimony shows that, though it be admitted that the car was running at a prohibited rate of speed, and that no bell was rung as the crossing was approached, the deceased, having seen the car, attempted to cross in front of it, and in such
Reversed : Rehearing Denied.