Crosby v. Portland Ry. Co.

• Decision Date: 23 March 1909
• Citation: 100 P. 300,53 Or. 496
• Parties: CROSBY v. PORTLAND RY. CO. [d]
• Court: Oregon Supreme Court

100 P. 300

53 Or. 496

CROSBY v. PORTLAND RY. CO. ^[d]

Supreme Court of Oregon

March 23, 1909

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Action by Bertha F. Crosby against the Portland Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for personal injuries, alleged to have occurred about as follows: That defendant on and prior to July 12 1906, was, and is, a corporation engaged in the business of running street cars propelled by electrical power; that, in order to move its cars, defendant maintained a number of overhead wires, one being on Grand avenue, in front of plaintiff's home, which wire the company negligently and carelessly allowed to fall from its fastenings to and upon the avenue in a charged condition, thereby endangering the lives, limbs, and safety of the public; that on the morning of the date named plaintiff was going from her home to her labor, and, without seeing the wire, came in contact therewith, receiving a severe electrical shock, burning and temporarily paralyzing, and making her sick to such an extent that she has not since fully recovered; that the injuries to her nervous system thus received are permanent in character resulting in great bodily and mental suffering, and requiring the attendance of a physician at much expense, care, and attention, for which damages are demanded. Defendant, after in effect, admitting its corporate capacity, the ownership and control of the wire, its breaking and falling in the street, and plaintiff's coming in contact therewith as an affirmative defense, avers that about two weeks prior to the date named the wire, at and near the crossing, broke away from its fastenings, and hung and sagged down toward the street, in which condition it continued in plain view of every one walking along or crossing the avenue or street with the apparent probability of its dropping near to the ground, to all of which, including the dangers incident thereto, plaintiff's attention had been directed to such an extent that she observed, understood, and fully realized the dangers thereof, but that notwithstanding her knowledge of these conditions she attempted in broad daylight to cross directly under the broken and sagging wire, and immediately behind a passing street car; that in attempting to do so plaintiff, seeing the wire sagging in front of her, endeavored to stoop under it, when she was lightly tapped by the wire without any resultant injury; that she could, with perfect safety, have crossed the street within a distance of 50 to 60 feet either north or south of the place of the accident, all of which was well known to her at the time; that plaintiff therefore acted in a reckless, careless, and negligent manner, which negligent act was the direct and proximate cause of any injury she may have sustained, and thereby assumed all the risk thus incurred. The cause was tried before a jury, resulting in a verdict for plaintiff in the sum of $3,000, and from a judgment thereon defendant appeals.

A.M. Dibble (Dan J. Malarkey, E.B. Seabrook, and Wilbur & Spencer, on the brief), for appellant.

Henry E. McGinn, for respondent.

KING J. (after stating the facts as above).

The testimony tends to establish the following facts: Plaintiff at the time of the accident was 22 years of age, in good health, and residing on the west side of Grand avenue, in the city of Portland, and a little south of, and on the opposite side of the street from, Neustadter's shirt factory, where she had been employed for about two years. On the morning of July 12, 1906, while crossing the avenue from her home to the factory, a trolley wire of the company, which had for some time been sagging, fell, striking plaintiff on the forehead, and, glancing down her face, struck her two or three times, the effect of which was to daze and cause her to stagger, and to be unable to hear one nearby who called to her. She remained in such condition for a few minutes, and the first incident of which she appears to have been cognizant was that her mother, who had met her at the sidewalk, was caring for her at their home, when she discovered that one side of her head and body was numb and without feeling. After remaining at home about 30 minutes, she returned to her work, but, finding herself unable to resume work, on request of her employer, returned home, and, owing to her nervous and impaired physical condition, did not renew her occupation at the factory until in September following. Soon after returning from the factory, a physician was called, who administered treatment, but her impaired physical condition failed to respond thereto for at least three or four days, when she began to improve, but her sense of taste and smell remained materially affected for some weeks thereafter. Plaintiff continued at home in poor health for two or three weeks, after which she went to Seaside, where she remained about one month, during which time she suffered, more or less, among other ailments, with pains in one side, arm, and back, which continued, and from which condition she had not fully recovered at the time of the trial. The plaintiff had prior to the accident often passed back and forth across the avenue at and near the point of the mishap, and for a period of at least 10 days had noticed the trolley wire out of place and sagging but that it was not low enough for any one in crossing to come in contact therewith. She knew the wire carried a strong current of electricity, a contact with which would be very dangerous. The avenue at the place of the accident was paved with wooden boards between and on each side of the rails. The casualty occurred on an exceedingly hot day, without rain having fallen in the vicinity for some time previous thereto. It was the custom of the city to sprinkle the avenue at and near this place daily. The wire causing the injury had been used in the propelling of street cars by defendant, and a car had passed under the wire immediately before its breakage, and plaintiff at the time of receiving the shock was on a regular crosswalk, and between the rails on the east track of the company's line.

The first error assigned demanding consideration relates to the action of the trial court in overruling defendant's motion for nonsuit, and in refusing to direct a verdict in its favor. It has become a well-settled rule in this state that, although plaintiff at the time of resting may have failed to offer proof sufficient to entitle the cause to be submitted to the jury, a ruling which denies such motion will not be disturbed if the omission is thereafter supplied. Trickey v. Clark, 50 Or. 516, 519, 93 P. 457. In this connection defendant maintains that, without the testimony introduced by plaintiff in rebuttal, the showing presented was inadequate to sustain a judgment, and that by reason thereof defendant was entitled to a directed verdict, and that the court accordingly erred in permitting the introduction in evidence, on rebuttal, of plaintiff's shoe, as well as in error in admitting any of the testimony adduced in reference thereto. The shoe apparently was offered, not only on account of its slightly burned appearance, but for the purpose of disclosing the nails therein, which the evidence discloses may have served as a conductor of an electrical current through their contact with the nails in the boards between the rails where plaintiff stood at the time of receiving the shock. This testimony, properly speaking, was a part of plaintiff's case in chief, but the time and manner of its admission was a matter within the sound discretion of the court (Wigmore, Ev. §§ 1867, 1873), which discretion, we think, was not improperly exercised. It can make no difference under the showing made where plaintiff was standing at the time of the accident, nor that dry boards are nonconductors of electricity, for circumstances are disclosed whereby the shock may have been received regardless of this feature. Much evidence was introduced by defendant in support of its theory that plaintiff could not have received a shock, if, at the time of the accident, she was upon the planks between the rails; but, whatever may be the opinion of defendant's expert witnesses upon this subject, the fact remains that plaintiff was, in fact, struck by the wire, and did receive an electrical shock, from which substantial injuries resulted. True, there is room for a difference of opinion upon the question, but this was a matter for the jury, the findings of which are not subject to review here. It was also disclosed, if not conceded, that, if the boards were damp, they were conductors of electricity, and the shock could have been received in that manner. Hence, while it was established that the day was very dry and warm, this feature is met by the testimony to the effect that the street was usually sprinkled, and in that locality "always looked damp in the morning," to say nothing of the testimony respecting the shoe introduced in evidence and the effect it may have had on the occasion.

Nor is the defense that plaintiff was negligent in crossing the street, with full knowledge of the sagging wire, sufficient under the record, to preclude a recovery. That this avenue or street is a public thoroughfare, and that the wire had been left in a sagging condition for more than 10 days, was unquestioned. In fact, it was, and is, admitted by defendant. Under the circumstances here revealed, it would be unreasonable to hold it necessary for people desiring to cross a street to abandon one crosswalk for another located at some other and more inconvenient point. The public has at all times a right to the use of its highways, and it was incumbent upon defendant to keep its wires along such public...