Palmer v. Portland Ry., Light & Power Co.

Mr. Chief Justice Moore

dissenting.

1. To test the sufficiency of the proof under a motion for nonsuit, the testimony must be viewed in the light most favorable to plaintiff. Hunz v. O. R. & N. Co., 51 Or. 191, 205 ( 93 Pac. 141 : 94 Pac. 504 .)

2. Some of the witnesses testified to the effect that the car was running about 20 miles an hour. Plaintiff testified that, when opposite the court house corner, the car was not less than a block and a quarter, or a distance of *266 about 440 feet to their rear; that after driving to a point near the center of the next block, in front of the postoffice, she again looked, at which time the car was at least three-fourths of a block distant; that she supposed it was running at the regular rate' of speed, the limit of which is fixed by ordinance at 10 miles an hour, and that after looking the last time the buggy was driven to the intersection of Cottage street, or about- 150 feet, before attempting to cross the track. It is too well-settled to admit of serious discussion that more care is essential to the proper operation of street cars than is usually required on the part of steam railways.

3. The rights of travelers upon the streets, whether in vehicles or otherwise, are reciprocal; all must act with due regard for the rights of others. The public has the right to assume that at least the requirements of municipal ordinances will be observed.

4. The question as to whether the moving of cars at a greater speed than permitted by law, constitutes negligence, is for the jury. Beck v. Vancouver Ry. Co., 25 Or. 32 ( 34 Pac. 753 ); Wolf v. City Ry. Co., 45 Or. 457 ( 72 Pac. 329 : 78 Pac. 668 ); Donohoe v. Portland Ry. Co., 56 Or. 58 ( 107 Pac. 964 ).

5. It is held in Donohoe v. Portland Ry. Co. that “it must appear that, although the defendant was negligent, the injury was caused by the unlawful speed, without contributory negligence of the person complaining, which was the proximate cause of the injury.” But, in this instance, it is manifest that had defendant’s car not exceeded the reasonable rate of speed prescribed by ordinance, which plaintiff had a right to assume, no collision would have occurred. As stated in Buswell, Personal Injuries (2 ed.) § 97, quoted with approval in Elliff v. O. R. & N. Co., 53 Or. 66, 76 ( 99 Pac. 76, 79 ):

“The proximate cause is to be defined generally as the cause which led to or might naturally be expected to produce the result.”

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6. Now applying this rule, let it be remembered that plaintiff had a right to travel upon the street, and near to, or even upon the track, and to cross the street at any suitable point, especially at a crossing, as attempted on this occasion, and defendant had a like right to be upon its tracks thereon; each being required to be reasonably prudent in the exercise of their respective privileges. But, as shown, there was ample evidence from which the jury could find that defendant was negligent; and, whether plaintiff was also reckless, and thereby contributed to and was the proximate cause of the collision, depends upon whether she used due diligence in watching the approaching car before attempting to cross the track, or looked in sufficient time to come within the usual prudential requirements.

7. After looking, and before attempting to cross the track, plaintiff traveled 150 feet; this distance, according to the effect of the testimony adduced in her behalf, was covered in 10 or 11 seconds. Had the car, during that space of time, not exceeded the maximum rate of speed of 10 miles an hour, it would have traveled approximately 160 feet. When plaintiff last looked the car had about 400 feet to run before it could overtake them; therefore, when they attempted ,to cross the street, they were entitled to assume that the car was about 240 feet to the rear, thus giving them about 15 seconds' in which to cross the track before the possibility of a collision. Hence there was no real necessity to look again, unless it was incumbent upon them to take notice, or to presume that the defendant was violating the ordinance by running at a reckless speed. The evidence does not justify such an assumption, and that a person should so presume is never required. True, many persons, before attempting to cross the track under such circumstances, might have looked again, but whether a failure so to do, when the car could reasonably have been expected to be from 280 to 240 feet *268 distant, with at least 15 seconds in which to drive less than 20 feet (when at the rate they had been driving they could have covered 225 feet), is certainly a matter concerning which reasonable minds may differ, necessitating a submission thereof to the jury.

8. It also appears that had the car been under proper control, and not going at an unreasonable speed, it could have been stopped in time to prevent a collision; thus supplementing the plaintiff’s proof, tending to establish as a question for the consideration of the jury that defendant’s negligence was the primary cause of the accident. Donohoe v. Portland Ry. Co., 56 Or. 58 ( 107 Pac. 964 ); Kunz v. O. R & N. Co., 51 Or. 191, 205 ( 93 Pac. 141 : 94 Pac. 504 .) The burden of proving contributory negligence is on the defendant. Gentskow v. Portland Ry. Co., 54 Or. 114, 120, 122 ( 102 Pac. 614 .)

9. And, as held in Elliff v. O. R & N. Co., 53 Or. 66 76 ( 99 Pac. 76 ), where the proximate cause of the injury is problematical, as certainly appears here, the case should be submitted to the jury. Or, as said by Mr. Justice Lamar in Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 417 (12 Sup. Ct. 679, 682, 683: 36 L. Ed. 485 ):

“There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms' (ordinary care,’ ‘reasonable prudence,’ and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the. determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that *269 reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court.”

To the same effect, see Hedin v. Railway Co., 26 Or. 155, 161 ( 37 Pac. 540 ); Hecker v. Oregon Railroad Co., 40 Or. 6 ( 66 Pac. 270 ); Webb v. Heintz, 52 Or. 444, 447 ( 97 Pac. 753 .) See, also, Doyle v. Southern Pacific Co., 56 Or. ( 108 Pac. 201 ), and authorities there collated on the subject. To affirm the judgment of the trial court would not only be at variance with the principles enunciated in the foregoing authorities, but manifestly inconsistent with the views announced and adopted in the following additional decisions by this court upon the subject: Galvin v. Brown & McCabe, 53 Or. 598, 608 ( 101 Pac. 671 ); Crosby v. Portland Ry. Co., 53 Or. 496, 502 ( 100 Pac. 300 : 101 Pac. 204 ); Webb v. Heintz, 52 Or. 444, 446 ( 97 Pac. 753 ); Wolf v. City Ry. Co., 45 Or. 446, 457 ( 72 Pac. 329 : 78 Pac. 668 ); Geldard v. Marshall, 43 Or. 438 ( 73 Pac. 330 ); Shobert v. May, 40 Or. 68 ( 66 Pac. 466 : 55 L. R. A. 810: 91 Am. St. Rep. 453 .)

10. The learned court below erred in excluding the ordinance and proof offered in connection therewith for the purpose of showing the speed limitation prescribed by ordinance within' the city, and. in sustaining the motion for nonsuit. The judgment will accordingly be reversed, and a new trial ordered. Eeversed.

Mr. Chief Justice Moore dissents.