Oberstock v. United Rys. Co.

• Decision Date: 23 December 1913
• Citation: 137 P. 195,68 Or. 197
• Parties: OBERSTOCK v. UNITED RYS. CO.
• Court: Oregon Supreme Court

137 P. 195

68 Or. 197

OBERSTOCK v. UNITED RYS. CO.

Supreme Court of Oregon

December 23, 1913

Department 2.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by Valencie Oberstock against the United Railways Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a personal injury action which was tried before a jury and a verdict rendered in favor of plaintiff. From a judgment thereon, defendant appeals.

The United Railways Company operates a line of electric railway from Portland in a northerly direction along the Willamette river to and through the town of Linnton. For a considerable distance outside the town of Linnton the railway is constructed on one side or the other of the public highway known as the Linnton road. This road, as it passes through Linnton, becomes the principal street of the town for a distance of a few blocks upon which stores and other buildings front. The travel spreads out and occupies practically the entire street, including the space between the rails of the defendant's railway; the street on both sides of the railroad being macadamized for about 150 feet north of the most northerly store building in the town, known as Lemme's store. Proceeding north the railway track swings gradually to the extreme west of the highway where the part of the road occupied by the tracks is given exclusively to railway use. The traveled part of the highway is macadamized; the macadam extending to the easterly rail of the track. Between the rails the ground is lower. A short distance north of Lemme's store the railway coming from the north curves out from the west side of the road to the middle of the street, and at this point the main travel swings across the tracks.

On the morning of June 14, 1912, plaintiff started south from Burlington on horseback. He proceeded on the macadamized road towards Linnton at a slow gait until he arrived at the outskirts of said town, where he met with the accident resulting in his injury. Plaintiff alleges that at this time he was riding on horseback along the public highway and the main street in the town of Linnton in a careful and prudent manner and was passing along, over, and across the railway line and track at a point in said public highway and the main street in the town of Linnton when the defendant wrongfully carelessly, and negligently, and through want of ordinary care and prudence, and without any or sufficient notice of warning to plaintiff, negligently and carelessly ran one of defendant's electric cars upon and against the plaintiff and the animal upon which he was riding with such force and violence as to knock the animal down and throw plaintiff upon the ground and railway track, and ran said electric car over and upon the left foot and leg of plaintiff, which crushed and lacerated the same to such an extent as to necessitate amputation. Defendant denies any negligence on its part and alleges that plaintiff's own negligence caused or contributed to the accident resulting in the injury in that he failed to use reasonable, ordinary care in driving his horse upon the highway to and upon the tracks of defendant's railway and did not take precautions to ascertain whether a car was approaching; and that he did not take ordinary precautions to guide his horse away from the defendant's tracks when he became aware that a car was approaching.

We note excerpts of the testimony bearing upon the points contested upon this appeal as follows:

Mr. B W. Taylor, witness for plaintiff, who took measurements and made a map of the premises (Plaintiff's Exhibit A) testified in part that the railroad runs cornerwise across the street coming in from Burlington from the north; that it comes along the edge of the street next to the high bank that, as the track approaches the middle of the street, the travel is on both sides of the street, starting in along the lower (east) side of the track; that the street for at least 150 feet north of Lemme's store is macadamized so that travel would be practically as much on one side as the other angling across the track, just as people took a notion; that there is a cut about 500 feet north of the store; that a car would disappear 1,200 feet north of the store; that the bulk of travel coming from Burlington crosses pretty well towards Lemme's store or from one building to another.

Plaintiff testified in his own behalf to the effect that at the time of the accident, June 14, 1912, he was coming up to Linnton from Burlington on horseback, between 9 and 10 o'clock in the morning; that he was coming into the town on the east side of the track, and when about five feet from the track, as he went to cross the railroad, he looked forward and backward and listened for a car; that he did not see nor hear any car back of him; that his horse was walking slowly and following the beaten tracks made by the wheels; that he continued along angling across the track, and that somewhere between the two rails he heard something coming and looked around quickly and saw a car coming in about 200 feet back of him; that he jerked the horse and made an effort to get him off the track, but that the horse shied, and before he could get over the track the car knocked him off the horse; that the car hit him slightly in the back and passed over his foot; that the street at this place was traveled upon both sides of the railroad; that the car was running very fast and came so quickly that he did not see how it could possibly stop; that they sounded no bell or whistle and gave no warning; that he estimated the distance from Lemme's store to the place of the accident to be about 150 feet. Joe Lemme, storekeeper, witness for plaintiff, testified that at the time of the accident the car stopped close to the store; that they went back 140 or 150 feet and found blood on the rail and a shoe heel; that the crossing is level there and wagon tracks cross the railroad at that place.

It appears from the record that the jury visited the place of the accident for the purpose of examination. Several photographs of the locus in quo were introduced in evidence. A. G. Smith, witness for defendant and motorman on the car, testified in substance that on June 14, 1912, as he was coming into the town he approached the crossing 1,158 feet north of town at probably 20 miles an hour and slowed down; that after he passed the crossing he whistled for the town at the whistling post and whistled again before getting into town; that he rang the gong; that when he came near the horse it was going along all right apparently, on the road parallel with the track; that when he got up within 100 feet of the horse the man apparently heard the bell or something and looked around and pulled the left rein as though to steer for the road and the horse turned around; that it seemed as though the man became excited and pulled too hard and kicked the horse with his heel, and the horse backed up towards the track. He further stated that he applied the air on the emergency; that the horse kept backing and the car kept going, and that the man backed the horse in just in time to have the horse's hips strike the back of the car; that he passed plaintiff about 75 or 80 feet; that at the time of the accident the speed of his car was about 12 miles per hour; that he could stop the car in about 100 feet; that there is an old house and a new house near the place of the accident; and that people cross the track there. He stated, "You can't see them until you get close;" that the speed capacity of the car at full voltage was about 35 miles per hour; that they ran about 80 feet past the plaintiff after the car struck him.

W. J. Miller, witness for defendant, testified in part that at the time of the trial the travel was 30 feet farther up towards Lemme's store than it was last June.

S. E. Wright, witness for defendant, testified, in describing the manner of crossing the track, that the people cross wherever it is necessary to cross; that one could ride across there at the place of the accident if one wanted to.

W. W Judson, section foreman, witness for defendant, testified in part that he was on the front of the car near the motorman at the time, and that when he first saw the plaintiff they were 150 feet from him and the speed of the car was from 10 to 15 miles per hour; that at the crossing 1,158 feet north of Lemme's store the speed of the car was 15 to 20 miles per hour; that the whistle for Linnton was given, but that he did...