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

• Decision Date: 11 April 1911
• Parties: STEWART v. PORTLAND RY., LIGHT & POWER CO.
• Court: Oregon Supreme Court

114 P. 936

58 Or. 377

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

Supreme Court of Oregon

April 11, 1911

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

Action by Robert T. Stewart against the Portland Railway, Light &amp Power Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

This is an action to recover damages for an injury inflicted by a street car on defendant's railway colliding with an express wagon owned and driven by plaintiff, whereby the wagon was broken, one of plaintiff's horses killed, and plaintiff wounded and bruised. The evidence introduced by plaintiff tended to show that he was driving north on East Twelfth street in the city of Portland, and that when at or about the intersection of East Twelfth street with East Morrison street he saw two men at the northeast corner of East Twelfth and East Morrison streets, standing near defendant's track, as persons usually do when they intend to take a car, and that about the same time he saw the car approaching from the east, about 50 or 55 feet distant. Assuming that the car would stop for them, he did not slacken his speed, but continued on across the track and was struck resulting in the injuries. Plaintiff was driving in a slow trot. There was evidence tending to show that the car was being run at a speed of 15 or 20 miles an hour; the maximum speed permitted by city ordinances being 12 miles an hour. The answer denied negligence on the part of defendant, and charged plaintiff with contributory negligence in failing to look or listen for the approaching car, and in recklessly driving upon the track.

Among other instructions, the court gave the following, which were excepted to:

"(4) If you find from the evidence that the defendant was negligent in some particular that has been charged in the complaint (that is, the street railway company) which contributed to the injury, but that the plaintiff was also negligent in a manner contributing to the injury (that is both parties being equally negligent), there can be no recovery.

"(5) It is the duty of a driver who is about to cross the street railway track to look and listen before attempting to cross, to see whether a car is approaching, and whether it is safe for him to attempt to cross, unless there is something in the circumstances of the case or in his surroundings which excuses him; and if he fails to look or listen before attempting to cross, and such failure materially contributes to the resulting collision, if any and thereby the driver or his property is injured, he is guilty of contributory negligence.

"(6) If you find from the evidence that the plaintiff drove onto defendant's track without looking or listening to see whether a car was approaching, and that by reason of his failure to look and listen he drove onto the track in front of an approaching car and was injured, he is guilty of contributory negligence, and your verdict should be for the defendant, unless you find that the railway company might have avoided the collision by the exercise of ordinary care and promptness, or that the plaintiff had a right to assume from the appearance of the two men on the crosswalk that the car would stop to take them on."

The defendant also asked for the following instruction, which was refused: "It is claimed in this case that the defendant was violating the speed ordinance at the time of this accident, to wit, going more than 12 miles an hour. You are to judge from all of the evidence at what rate the car was going at the time of the accident; but I...