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

• Citation: 115 P. 151,58 Or. 499
• Parties: PLINKIEWISCH v. PORTLAND RY., LIGHT & POWER CO.
• Decision Date: 27 April 1911
• Court: Oregon Supreme Court

115 P. 151

58 Or. 499

PLINKIEWISCH v. PORTLAND RY., LIGHT & POWER CO.

Supreme Court of Oregon

April 27, 1911

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Action by Edward Plinkiewisch, administrator of Otto Brandes deceased, against the Portland Railway, Light & Power Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Plaintiff's intestate was struck and killed by one of defendant's street cars, and this is an action to recover damages sustained by his estate by reason of such accident.

It is alleged that defendant was negligent in the following particulars: (1) In using a worthless and insufficient fender, different from that prescribed by the statutes of Oregon. (2) In failing to have the car under control when passing another car. (3) In failing to ring the gong as the car approached the crossing. (4) In failing to keep a headlight burning. (5) In carelessly and negligently failing to stop the car after seeing deceased coming upon the track and into a place of danger. Defendant denied the alleged negligent acts, pleaded a resolution of the city council of Portland, authorizing the use of a fender of the character then used upon the car described in the complaint, and alleged that the accident was due wholly to the negligence of deceased in going upon the track without looking or listening for an approaching car.

The evidence introduced by plaintiff tended to show that deceased was on a car going east on Glisan street in Portland, and that when within eight or ten feet of the west crosswalk of Eleventh street, which intersects Glisan street at right angles, he stepped off of the moving car on the south side and walked around behind the car, and started in a northerly direction across Glisan street. This street has a double railway track upon it. The width of the track is three feet nine inches, and the distance between the nearest rails of the two tracks is six feet. The evidence shows that he walked with his head down, without looking for an approaching car and that he stepped upon the track at the same instant that he was struck by a car going west, which was moving at a rate of from two to four miles an hour. He was carried by the car a distance of from 40 to 50 feet, and was so bruised and injured that he died shortly thereafter. At the conclusion of the testimony the court directed a verdict for defendant, and plaintiff appeals. Other facts will appear in the opinion.

Wm. C Benbow, for appellant.

A.M Dibble (Wilbur & Spencer, on the brief), for respondent.

McBRIDE, J. (after stating the facts as above).

It is evident from the testimony that the negligence of the deceased was the proximate cause of his death. 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.

Even if be 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 safely 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 lie 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 falling to do so, would be unreasonable.

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...