Ryberg v. Portland Cable Railway Co.

Pbactice—Nonsuit—Case in Judgment.—It appearing from an examination of the record in this case, that there was some evidence on the part of plaintiff, however slight, to sustain the verdict, held, that it was not error In the court below to deny the motion of defendant for a nonsuit.

Multnomah county: E. D. Shattuck, Judge. Defendant appeals. This is an action to recover damages for negligence. After alleging the corporate existence of the defendant, the complaint proceeds: “That on the second day of May, 1891, the plaintiff, who is an expressman, and was such at the time of the happening of the injury hereinafter referred to, was lawfully driving along Fifth street, a public street of the city of Portland, with his express wagon and one horse; that while so passing along he approached a deep hole, which had been negligently left open by the said defendant corporation in its turntable, which was on said street, and of the existence of which the plaintiff was without knowledge until his near approach thereto, and of the existence of which the said defendant had full knowledge; that there was no sign or notice of the existence of such dangerous place in said street at the time of the plaintiff’s said approach; that the plaintiff was compelled, in order to avoid entering said hole, to turn his horse and wagon across the track of the said defendant, and that while so doing and in the exercise of due care and caution, and while exercising every exertion to avoid a catastrophe, and while going in the only direction in which such accident might be avoided, his said wagon was, by the approaching car of said defendant, negligently, carelessly, and without due care and caution, run into, overset, broken, and damaged, and the plaintiff himself was thrown out over the seat upon said wagon, and his face and body severely bruised, and he was made sick and sore, and will for some time so continue.” There was a further allegation of damage in the sum of fifty dollars for injury to wagon, and damage in the sum of fifty dollars because “he will b& prevented from using his said wagon, by means of which he earns his livelihood, for the space of two weeks,” and injuries to himself, in all, two hundred and fifty dollars. The defendant’s answer, after alleging its right and franchise duly granted by the city of Portland to run its cars on said North Fifth street, proceeds: “And defendant further alleges, that on the second day of May, 1891, under and by virtue of said power, and for a long time prior thereto, it was operating street cars by cable along North Fifth street in said city, under and by virtue of its said franchise, having constructed its street railway along said street to a point near H street, where, for the necessary operation of its said railway and cars, it had constructed a turntable; that in said table there was a trapdoor of sufficient size to admit the person of a man to descend beneath said table to oil the machinery and remove filth and dirt that will accumulate beneath the same; that on said second day of May, 1891, at about the hour of eleven o’clock in the forenoon, two of its employés were engaged in removing the dirt from beneath said table, one being beneath the same and the other standing at the trapdoor, which was then open and on the west side of said turntable; that while so engaged, and while a car of the defendant was just entering upon said turntable, the plaintiff, although warned by said employé, who was standing at said trapdoor, not to approach, which said warning was given while the plaintiff was more than twenty feet away, and while there was plenty of room on the east side of said street to pass, which said east side was then unobstructed, negligently, wilfully, and unnecessarily attempted to pass between said open trapdoor and said car of the defendant; that in so doing, plaintiff ran into the car of defendant^ broke the end thereof, and marred and injured the same to the extent of twenty-five dollars; that the approach of the plaintiff at said time was without cause and unexpected, so that said car, although moving slowly, could not be entirely stopped; that plaintiff was driving at a good speed, but had plenty of time to either entirely stop before reaching said turntable or to turn to the easterly thereof; that defendant has been compelled to repair said car at a cost of twenty-five dollars.” The reply denied the new matter in the answer. A trial before a jury resulted in a verdict and judgment for the plaintiff, from which defendant appealed. During the progress of the trial in the court below, and at the conclusion of the plaintiff’s evidence, the defendant moved for a nonsuit, for the reason the plaintiff’s evidence did not prove a case sufficient to be submitted to a jury; which motion being overruled, an exception was duly taken.