Hedin v. City & Suburban Ry. Co.

• Decision Date: 30 July 1894
• Citation: 37 P. 540,26 Or. 155
• Court: Oregon Supreme Court
• Parties: HEDIN v. CITY & SUBURBAN RY. CO.

37 P. 540

26 Or. 155

HEDIN v. CITY & SUBURBAN RY. CO.

Supreme Court of Oregon

July 30, 1894

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by N.G. Hedin against the City & Suburban Railway Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

R. Mallory, for appellant.

Raleigh Stott, for respondent.

MOORE J.

This is an action brought by the plaintiff to recover damages for expenses incurred in the care of and medical attendance rendered to his minor daughter, and for the loss of her services, on account of injuries caused by one of defendant's electric cars running over her while, as is alleged, being carelessly and negligently propelled at an unusual and dangerous rate of speed by the employés of defendant, whereby the two small fingers and a part of the palm of her right hand were cut off, and the third finger of said hand was bruised and mutilated. After denying the material allegations of the complaint, the defendant, in substance, alleged that the plaintiff carelessly and negligently permitted said minor child to go unattended upon a public street in which he well knew defendant's cars were running at frequent intervals, and that, while one of its cars was moving on said street at a moderate and lawful rate of speed, the said child carelessly and negligently ran immediately in front thereof, and so near thereto that it was impossible for its employés though using all the means in their power, to stop the car in time to prevent the injury. The allegation of new matter contained in the answer having been denied in the reply, the cause was tried, and a verdict and judgment rendered against the defendant, from which it appeals.

The bill of exceptions shows that when plaintiff rested his case the defendant moved for a nonsuit, for the reason that there was not sufficient evidence in support of the complaint to be submitted to the jury, which motion having been overruled by the court, an exception was taken, and it is now contended that it should have been sustained. It is also claimed that it was negligence per se on the part of plaintiff to permit a child of such tender years to go unattended upon a public street where such dangerous machines as a car propelled by electric power were known to be running at frequent intervals. The record shows that plaintiff introduced evidence tending to prove the following facts That the injury occurred April 23, 1893, on the public crossing at the intersection of Johnson and Fourteenth streets in the city of Portland; that defendant's railway track runs north and south on said Fourteenth street, and that from Glisan street north to Johnson street, a distance of about 720 feet, said track has a descending grade of about one-half inch in every 2 1/2 feet; that electric cars had been substituted on said street for those propelled by horses but three or four days prior to the injury; that an ordinance of said city permitted the defendant to run its cars at a rate of eight miles per hour; that the car in question was running very rapidly down the grade, and, after striking the child, it ran 128 feet before it was stopped; that the plaintiff, who by occupation is a stone mason, lived on the east side of Fourteenth, about 100 feet north of Johnson street, and, with the aid of his wife, who, without any help kept eight boarders, supported their family, consisting of two boys of the age of nine and seven years, respectively the girl injured, aged three years and nine months, and another girl, aged two years and seven months, by their joint labor; that, the plaintiff having no playground for the children on his premises, his wife on the day in question sent them to a vacant block at the southwest corner of Fourteenth and Johnson streets, where they had been in the habit of playing; that between 6 and 7 o'clock in the evening, and while it was yet daylight, plaintiff's wife called the children to their supper, and went to the sidewalk in front of their house to meet them, as was her custom; that when reaching the sidewalk she saw defendant's car coming rapidly down Fourteenth street, after having just entered it from Glisan street, and also saw her children coming from the block upon which they had been playing to the sidewalk in front of it at the northeast corner, where they remained for an instant; that, having seen the position of the car and of the children, she did not warn them of the danger, or tell them not to cross the street; that when the car had reached a point from 100 to 200 feet from the children, the little girl in question started and ran across the street in front of it, which so frightened her mother that she did not warn her to turn back, thinking, as she says, that the child could cross the track before the car reached her; that the car struck the child just after she had crossed the track, inflicting the injury complained of; and that the plaintiff had sustained the amount of damages which he sought to recover.

Did this state of facts authorize the court to submit the case to the jury? It may be conceded that, if the plaintiff permitted a child of her tender years to go unattended upon a street where electric cars were known to be passing at frequent intervals, and she there sustained an injury, it was such negligence on his part as would prevent a recovery for damages sustained in consequence of the loss of her services (Booth, St.Ry.Law, § 390, and cases there cited); but we do not think counsel's assumption of the fact is supported by the evidence, which shows that plaintiff's wife sent the little girl in question, with the other children, to play on the vacant block, and that immediately prior to the injury she was accompanied by her brother, whom she left standing on the crossing when she ran across the street. Her escape from him does not necessarily prove that she was unattended. In passing upon the question presented by the motion there were two elements to be considered: First, did the plaintiff, by his negligence in...