Wade v. City & Suburban Ry. Co.

• Decision Date: 05 February 1900
• Citation: 59 P. 875,36 Or. 311
• Parties: WADE v. CITY & SUBURBAN RY. CO.
• Court: Oregon Supreme Court

59 P. 875

36 Or. 311

WADE v. CITY & SUBURBAN RY. CO.

Supreme Court of Oregon

February 5, 1900

Appeal from circuit court, Multnomah county; A.F. Sears, Jr., Judge.

Action by A.F. Wade against the City & Suburban Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action to recover damages for the death of plaintiff's child, aged 3 1/2 years, caused by the alleged negligence of the defendant corporation in operating one of its electric cars at a dangerous and reckless rate of speed on Glisan street, in the city of Portland. The answer denies the negligence charged, and, as a defense, alleges the contributory negligence of the plaintiff. After a trial before a jury, a judgment was rendered in favor of plaintiff for $800 and costs, from which the defendant appeals.

R Mallory, for appellant.

J.H Hall, for respondent.

BEAN J. (after stating the facts).

In support of the allegations of the complaint, plaintiff offered in evidence a city ordinance limiting the rate of speed of electric cars, which the court refused to admit because its existence and the violation thereof were not pleaded, but allowed the complaint to be amended in that regard, and the ordinance was then admitted; and this ruling is assigned as error. There is a conflict in the decisions as to whether an ordinance regulating the rate of speed is competent evidence in this class of cases, when not pleaded. In Missouri it is held that, when the cause of action is not founded on the ordinance, it is not necessary to plead it but that evidence of its existence and violation is competent, as tending to show negligence. Robertson v Railway Co., 84 Mo. 119; Riley v. Same, 18 Mo.App. 385. The same ruling seems to have been made by the supreme court of Illinois in Railway Co. v. O'Connor, 77 Ill. 391, although Mr. Booth says that such an ordinance is not admissible unless it is pleaded (Booth, St.Ry.Law, § 359), and cites Railway Co. v. Klauber, 9 Ill.App. 613, and Blanchard v. Railway Co., 126 Ill. 418, 18 N.E. 799, in support of the text. But, whatever may be the rule in this regard, we are of the opinion that there was no abuse of discretion in permitting the complaint to be amended in the particular referred to. Such amendment did not add a new cause of action. The negligence charged in the complaint is the operation by defendant of its cars at a dangerous and reckless rate of speed, and an averment that such a rate of speed was in excess of that permitted by a city ordinance would not be changing the cause of action as originally pleaded. In either instance the question would be for the jury to determine whether the car was in fact being operated at a dangerous rate of speed, and whether its speed was the proximate cause of the injury; and the ordinance, and proof of its violation, would be nothing more than evidence upon that point.

The plaintiff, after giving some testimony tending to show the speed of the car at the time of the accident, called witnesses to prove the usual and customary speed at which the cars of the defendant company were operated at the place where the accident is alleged to have occurred. The defendant objected to the admission of this character of evidence, but the court ruled it competent and allowed the witnesses to answer. The witness Patterson, in answer to a question of plaintiff's counsel as to what had been the habitual and customary...