Smith v. City & Suburban Ry. Co.

• Decision Date: 21 September 1896
• Citation: 46 P. 136,29 Or. 539
• Parties: SMITH v. CITY & SUBURBAN RY. CO. [1]
• Court: Oregon Supreme Court

46 P. 136

29 Or. 539

SMITH v. CITY & SUBURBAN RY. CO. ^[1]

Supreme Court of Oregon

September 21, 1896

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by Sarah Smith against the City & Suburban Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Rufus Mallory, for appellant.

A.H Tanner, for respondent.

BEAN J.

This is an action to recover damages for an injury caused by the alleged negligence of the defendant in the operation and management of one of its electric cars, and comes here on an appeal from a judgment in favor of the plaintiff. The defendant's car line on Morrison street in the city of Portland, consists of two tracks, about four feet apart. The cars going east use the south, and those going west the north, track. On August 11, 1892, the plaintiff boarded an east-bound car, intending to ride to Union avenue, her destination being a point thereon south of Morrison street. At the time she took passage on the car the conductor was requested to put her off at Union avenue, but through some mistake or carelessness, carried her by that point. On the return trip of the car she was safely landed in the street at the intersection of said avenue as desired, whereupon she walked around the rear end of the car upon which she had been riding, started across the street, and in attempting to cross the south track was struck and injured by a car going east. The plaintiff's version of the accident is as follows: "I got into the car, and went until they stopped, and told me to get out. He [the conductor] put me off the car. I stepped to one side a little. He [the conductor] said, 'This is the place where you get off,' and he put me off. He helped me down. I turned myself around to look, for I felt like I was turned around; did not know which way to go. Then I made a few steps eastward, and made a quick pass, right back to the end of the car, right close to the car. I saw nothing, and heard no bell. I looked to see--I turned around to see where I was and when I saw where, I was going to go up south. I looked again, to see if I could see anything. Seeing nothing, I thought now I will go past right quick, and when I passed the car looked as if it was an arm's length from me,--the one that hit me. I had never seen it before it was that near to me. Heard no bell or any warning given to me at all; heard nothing. My hearing is good. If there had been a bell rung, I could have heard. My hearing is pretty good. The car I got out of was still standing there. I waited a short time, and it still stood there, and I thought then, I will go past behind the car. I don't remember a thing that happened afterwards. When I saw the car so near me, I think I made an effort to get out of the way, but it was so close I could do nothing. Don't know how the car struck me." The moterman in charge of the latter car says the first time he saw the plaintiff she was about 25 feet away from the car. "She stepped from behind the west-bound car into the middle of the track on which my car was going. She stood in the middle of the track for a few seconds, and looked very much bewildered and frightened. She then recovered herself, and started to go back; but it was too late." The plaintiff claims and alleges that her injury was caused by the negligence of defendant in running its cars at a dangerous and unlawful rate of speed, in not giving timely signals of its approach to the street crossings, and in not providing it with suitable brakes. The defendant denies these allegations of negligence on its part, and avers that the injury was caused solely by the plaintiff's own negligence in attempting to cross the track without looking or listening for the approaching car. There was sufficient evidence to go to the jury on the question of defendant's negligence, and the principal question on this appeal is the alleged error of the trial court in refusing to instruct the jury that: "If plaintiff failed to look to see if a car was approaching before she attempted to cross the track, and by reason of such failure stepped upon the track, and was struck by an approaching car, which she could have seen and avoided by looking, then she was guilty of contributory negligence, and cannot recover in this action." That this proposed instruction is good law, under the facts of this case, it seems to us can admit of no reasonable question. Counsel for plaintiff seek to justify the rulings of the trial court by claiming that the imperative rule for railway crossings, that a traveler must look and listen, is not applicable as a hard and fast rule to crossings of street-car tracks in the public streets of a city, but the question of care in such cases is always for the jury. Upon this subject there is some conflict in the decisions, but the doctrine which seems to be supported by authority and reason, at least with reference to electric and cable railways, is that "it is presumptively negligent on the part of a pedestrian to attempt to cross the track without looking or listening, when, if he had looked and listened, he could have discovered the approach of the car in ample time to avoid injury." Booth, St. Ry.Law, § 312; Fenton v. Railroad Co., 126 N.Y. 625, 26 N.E. 967; Meyer v. Railway Co., 6 Mo.App. 27; Scott v. Railroad Co. (Sup.) 16 N.Y.Supp. 350; Davenport v. Railroad Co., 100 N.Y. 632, 3 N.E. 305; Carson v. Railway Co., 147 Pa.St. 219, 23 A. 369; Buzby v. Traction Co., 126 Pa.St. 559, 17 A. 895; Sheets v. Railway...