Coughtry v. Willamette Street Railway Co.

StrahaN, C. J.

The only error relied upon on this appeal is the refusal of the court below to allow defendant’s motion for a nonsuit. The ground of the motion was that the plaintiff had failed to prove a case sufficient to be submitted to the jury. This state of the record imposes the delicate duty upon this court of looking into and consider *248 ing the evidence to determine whether or not any facts were - proven which in any view that could be reasonably taken of them would entitle the plaintiff to a verdict.

To sustain its contention, the appellant makes two points: (1) That the plaintiff failed to prove that the defendant, its agents and servants were in any respect negligent; and (2) that the plaintiff’s evidence shows that he was guilty of negligence contributing to the injury. These two objections were both covered by the defendant’s motion for a nonsuit, and may be considered together. The evidence is all contained in the bill of exceptions, and is very brief.

John Beno testified that he was in the employ of the plaintiff at the time of the accident; that they were excavating a cellar on the northeast corner of Sixth and N streets in East Portland on the day of the accident; that they had taken out the last load of dirt and dumped it on the east side of Seventh street, about fifty feet south from N street; that the driver, young Mr. Coughtry, turned around, drove back to N street, and there saw the span of horses in question standing with their heads towards the track, and the lines lying on the ground, where they had been left by young Coughtry, another son of plaintiff. Witness got off the wagon and picked up the lines, while Robert Coughtry drove around the loose team and upon the bridge to a point about thirty-five feet east of Seventh street, and stopped, while the witness held the lines of the team behind the wagon. They waited here some three or four minutes for young Coughtry, who had gone to the cellar for his coat, when they saw the motor coming. The team held by the witness began to grow uneasy, and the horse on the near side danced upon the track when the motor was within about one hundred and twenty-five feet of them, and continued upon the track until struck by the motor. The motor pushed the horses some ten or twelve feet along the track before it stopped. This was about 5:30 or 6 o’clock in the evening of February 9th.

Robert Coughtry testified that he had been driving the *249 team along the street during the day, and passed the motor a great number of times; that while he was unloading the last load in the evening, the motor passed down the street going west; that the motor had been making trips every fifteen or twenty minutes during the day; that it did not generally remain at the station but a few minutes before going back; that after unloading his load, his nearest way home would have been to continue south on Seventh street to 0 street; thence east on 0 street; that 0 street was an improved street but that N street was a better street; that he had to turn his team around to get back to N street; that he was sitting on the wagon when the motor struck the team. He also corroborates Beno’s statement about the horses being on the track, and that Beno held the lines, and that the horses not being fastened together behind, spread apart with the result that the near one got on the track when the motor was about one hundred and twenty-five feet away.

H. Glen testified that he was in the office of the East Portland Mill and Fixture Company at the time of the accident. His attention was attracted by the tramping of the horses. He looked out and saw the horses upon the track, and at the same time heard the motor coming. He then went to the west window and saw the motor coming, at the same time saying: “It looks as though there was going to be an accident out there.” The train was not running at the usual speed, but was going so fast that it would have been unsafe to step on or off it; that they usually came down the grade at a pretty lively speed, in order to get a good start up the grade, which commenced just east of Seventh street. The witnesses except the last all substantially agreed as to the amount of damages. This was all the evidence offered on the part of the plaintiff.

The complaint is very defective in not alleging the act of negligence upon which the plaintiff relies, but no objection appears to have been taken by demurrer or motion so that the same will not be further noticed.

*250 The gist of this action is negligence; and in order to enable the plaintiff to recover, he must prove by a preponderance of the evidence that the defendant violated some duty which it owed to the plaintiff, that' is, that it did some act without due care which it ought not to have done, or that it omitted to do some act which it ought to have performed, and that such act or omission contributed to the injury of which the plaintiff complains; and in addition to this that the plaintiff was guilty of no act which contributed to the injury.

After the most attentive and careful examination of this evidence, and giving full effect to every fact which it in any way tends to prove, we are unable to find that the defendant was in any way whatever negligent. It was engaged in running its motor over its track as it had the lawful right to do, and the plaintiff knew the fact. Its time was about every fifteen or twenty minutes, and the plaintiff knew the motor had passed west and that it did not remain long at the station. Under these conditions the plaintiff’s driver stopped the team by the side of the track to enable Mr. Coughtry to go back for his coat to the cellar they had been excavating. Plenty of time elapsed from the time the team stopped by the side of the track before the motor returned, for the team to have passed beyond possible danger from it. If the driver allowed the team to linger by the side of the motor line until the horses became unmanageable and danced upon the track, it is difficult to see how the defendant could be responsible for that act.

Whether the motor could have been stopped after it was seen by the engineer that the horses were on the track, does not appear. There is not a particle of evidence on the subject. As this record stands there is no evidence of any negligence on the part of the defendant that could justify a recovery. In addition to this, it is difficult under the circumstances to resist the conclusion that the plaintiff was negligent in handling and caring for his team at the time *251 of the injury, and that this negligence directly contributed to the injury.

For these reasons, the court below erred in refusing the defendant’s motion for a nonsuit, and the judgment appealed from must be reversed, with directions to sustain the defendant’s motion for a nonsuit.