Plinkiewisch v. Portland Ry. L. & P. Co.

Mr. Justice McBride

delivered the opinion of the court.

1. It is evident from the testimony that the negligence of the deceased was the proximate cause of his death. *502 He neither looked nor listened, nor took any precautions to insure his own safety, when it is evident that even a casual glance would have made known the fact that defendant’s car was in close proximity. In addition to this he was attempting to cross the street, not at the crosswalk, but at an unusual place and under unusual circumstances, as his presence was concealed by the car that he had just left, until he approached within a few feet of the track.

2. Even if he had been observed nearing the track of the west-bound car, the motorman would have been justified in supposing that he would halt before stepping upon the track. To step from a place of safety to a place of imminent danger would require less than a second of time. A car going at the rate of four miles an hour would progress nearly six feet in a second of time. Had the motorman observed that deceased was likely to put himself in peril by attempting to cross the track, it would have required at least a second or more of time to stop the car. The testimony of Buchler, the only witness who actually saw deceased struck by the car, indicates that, when deceased had reached the south rail of the north track, the car was six or seven feet away. Here, for the first time, deceased was in a position of actual danger, or in a position that would indicate to the motorman that he intended to cross the track ahead of the car; and to say that he had time to realize the peril deceased was in, and apply the brakes and stop the car in less than two seconds, and that he was negligent in failing to do so, would be unreasonable.

3. The fact, if it be a fact, that the car had no headlight, can have no bearing, as the testimony shows that the light was sufficient to enable a person nearly a block away to see both deceased and the car.

Plaintiff, practically conceding the negligence of deceased, contends that the failure of defendant’s motor *503 man to stop the car for a considerable distance (from 40 to 50 feet) from the place of collision should entitle plaintiff to recover upon the “last clear chance” rule. It is contended with some plausibility that the jury might have found that deceased came to his death, not from the effect of the original collision, but from subsequent injuries inflicted after he was thrown under the fender and dragged to the place where the car finally stopped. We find nothing in any phase of this case that justifies the application of the “last clear chance” rule.

4. It should be borne in mind in the beginning that he who admits negligence on his own part, and seeks to avoid its consequences, has the burden of proof to show, by the outweighing of the testimony, that, notwithstanding such negligence, the circumstances were such that the opposing person, after perceiving his peril, could, by ordinary care, have avoided injuring him. We fail to find such proof in this case.

5. Conceding, for the purposes of the argument, that defendant was negligent in failing to stop its car or in failing to ring a gong, the evidence shows that the negligence of deceased was concurrent, and continued to the very moment of the injury. Under such circumstances plaintiff cannot recover. Drown v. Northern Ohio Traction Co., 76 Ohio St. 284 ( 81 N. E. 326 : 10 L. R. A. [N. S.] 421: 118 Am. St. Rep. 844 ); Dyerson v. Union Pac. R. Co., 74 Kan. 528 ( 87 Pac. 680 : 7 L. R. A. [N. S.] 132); Holmes v. Southern Pac. C. R. Co., 97 Cal. 161 ( 31 Pac. 834 ).

6. Nor can the “last clear chance” rule apply to the alleged negligence of defendant in failing to stop its car more quickly after the collision occurred. The evidence is clear that the death was the result of deceased’s having been struck by the car. Whether the whole injury happened at the very moment of the collision, or partly then and partly afterward, and before the car was stopped, *504 is a matter of mere conjecture. The whole accident was one transaction, and, to attempt to cut it into fragments, it would have been necessary to require the jury to depart from the realm of proof and enter the domain of speculation. Rider v. Syracuse R. T. R. Co., 171 N. Y. 139 ( 63 N. E. 836 : 58 L. R. A. 125); Drown v. Northern Ohio Traction Co., 76 Ohio St. 234 ( 81 N. E. 326 : 10 L. R. A. [N. S.] 421: 118 Am. St. Rep. 844 ).

The contention that the defendant was negligent in failing to have a proper fender upon its car, cannot be sustained. Section 7007, L. O. L., describes the character of fenders that shall be used upon street cars in the State of Oregon, but has this proviso:

“Provided, that whenever, in the judgment of the mayor and the members of the common council * * it shall be deemed for the best interests of the residents and inhabitants of any such city or town to substitute in lieu of the apron, fender, or guard, hereinbefore provided for, another approved design of apron, fender, or guard, said mayor and said city council shall have such right whenever there shall be entered upon the records of said city or town the reasons for making such substitution.”

Before this accident occurred, the council and mayor, by a resolution duly passed, declared that the “Hunter Drop Guard Fender,” of the design, form, and construction adopted for use by the Portland Railway Company and the City & Suburban Railway Company, was adapted for use in the City of Portland, and better calculated to prevent accidents or injuries to persons than the fender provided for- in the act of the legislature, and directed its use in the City of Portland by such companies and their assigns.

7. It is not disputed that the fender actually in use on the car in question was of the design and character prescribed by the resolution; but it is contended that the proviso in the act is unconstitutional, in that it gives the *505 mayor and council the right to arbitrarily set aside a state law. We do not take this view of the act. The intent of the act is purely to prescribe in general terms what shall constitute a sufficient fender, until each distinct locality shall have seen fit to legislate for itself on that subject. This court has upheld local option in regard to the sale of liquor, and we see no good reason why Portland, or any other municipality, may not be permitted to exercise the same right in regard to fenders. The principle is the same; the regulation of each is the exercise of the police power for the benefit of the public.

8. It is also claimed that the resolution is void because it discriminates, either in favor of or against two railways ; but it is not claimed that there are any other street railways in operation in Portland, and, as they can only exist by virtue of franchises granted by the city, we will assume that there are no others, rather than that the authorities intended to make an unlawful discrimination.

9. It is also contended that the resolution is void because it discriminates in favor of a particular fender. The name “Hunter Drop Guard Fender” is evidently used to describe the device which the council intended should be adopted. It is not shown to be a patented article, or one that anybody is prohibited from making or selling. It was the intent of the statute that the device approved and adopted should be described with convenient certainty, and we think a description by name, with the addition that it was of the pattern then in use by the two railway companies, merely served the intent of the statute, and did not unduly discriminate.

The judgment of the circuit court is affirmed.

Affirmed.