Wallace v. City & Suburban Ry. Co.

• Decision Date: 30 July 1894
• Citation: 26 Or. 174,37 P. 477
• Court: Oregon Supreme Court
• Parties: WALLACE v. CITY & SUBURBAN RY. CO.

37 P. 477

26 Or. 174

WALLACE v. CITY & SUBURBAN RY. CO.

Supreme Court of Oregon

July 30, 1894

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by John E. Wallace, administrator of the estate of Mary Bodiala, deceased, against the City & Suburban Railway Company, to recover for the death of plaintiff's intestate, caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

R. Mallory, for appellant.

N.D Simon, for respondent.

BEAN C.J.

This is an action to recover damages for the death of plaintiff's intestate, caused by the alleged negligence of the defendant corporation in the management and operation of one of its electric street cars on Savier street, in the city of Portland. The negligence charged in the complaint is that a car, while being run and operated recklessly, negligently and carelessly, and without the exercise of any care and attention, and at an excessive and dangerous rate of speed ran over and killed the plaintiff's intestate, a child about six years of age, while she was lawfully crossing the track at a public street crossing.

At the close of plaintiff's testimony the defendant submitted a motion for a nonsuit, which being overruled, the trial resulted in a verdict and judgment in favor of plaintiff from which defendant appeals, and now insists that the court erred in overruling its motion for a nonsuit. The refusal to nonsuit was proper, unless the evidence for the plaintiff, taken in its most favorable light, would not authorize the jury to find a verdict in his favor. On a motion for a nonsuit, every intendment and every fair and legitimate inference which can arise from the evidence must be made in favor of the plaintiff, and the court must assume those facts as true which a jury could properly find under the evidence. "Before a court is authorized to grant a nonsuit for insufficiency of evidence," says Lord, C.J., "it must appear that, admitting the testimony of plaintiff to be true, and giving him the benefit of every inference that is fairly deducible from it, the plaintiff has still failed to support his action. In fact, it is enough if the evidence offered tends to show facts sufficient to sustain the action, though remotely." Herbert v. Dufur, 23 Or. 462, 32 P. 302. The only question we have to determine, then, is whether there was any evidence offered by plaintiff, from which the jury could lawfully find that the death of plaintiff's intestate was caused by the negligence of the defendant in operating its cars at an excessive and dangerous rate of speed.

The main facts may be briefly stated as follows: The defendant's cars run east and west on Savier street, and at or near the intersection of that street with Nineteenth street there is a parish school, which at the time of the accident was attended by the deceased and a number of other children, who were accustomed, as was known to the persons in charge of the car, to use the crossing at which plaintiff's intestate was killed, in going to and from school. A few moments after the school had adjourned for lunch, and while the children were on the street,--some engaged in playing near the track, and others on their way home,--the defendant's car came down Savier street, running, as the evidence for plaintiff tended to show, at the rate of 10 miles an hour, and, without slowing down, attempted to pass the crossing; and in doing so the plaintiff's intestate was knocked down by the car, and killed. The particular incidents attending the accident are not fully disclosed, the only eyewitnesses being two boys, aged 9 and 13 years, respectively. The elder boy first stated that he was playing marbles in the street, about 10 feet from the track, and saw the car strike the deceased, and two wheels pass over her body, and afterwards testified that she was standing on the crossing, about 3 feet from the track, while the car was coming down from Twentieth street, and he did not see the car strike her, but saw her fall on the track. The other boy, who is a brother of the deceased, says that he and his sister were on their way home from school, and that he had hold of her hand, and while they were crossing the track his sister was struck by the car, and that neither of them saw it, nor did they look to see if a car was coming, and knew nothing of its approach until it struck the girl, when he jumped back.

The contention for the defendant is that this evidence does not in any way tend to show that the excessive or dangerous speed of the car was the proximate cause of the injury, or that it would not have occurred if the car had been running at a rate of speed perfectly safe and legal. If we assume, as does the argument for the defendant, that the child, without the fault or negligence of the defendant, suddenly and unexpectedly appeared on the track immediately in front of the car, we might conclude that her death was an unavoidable accident, and that the rate of speed would be immaterial, for upon such an appearance on the track no precaution could have prevented the accident. But because these facts are not fixed and certain the case had to go to the jury, and the rate of speed properly became an element in the case. The evidence does not show how far in advance of the car the child attempted to cross the track, but it does tend to show that she was on or within three feet of the track, within plain view of the persons in charge of the car, while it was moving from Twentieth street down to the place of the accident, and, notwithstanding such fact, no attempt was made to avoid a collision. It is a well-settled principle that a wrongdoer is responsible for such consequences as might reasonably have been anticipated as likely to occur as the natural and probable result of his misconduct, and it is ordinarily the province of the jury to ascertain whether the injury in a particular case was such natural and proximate result of the wrong complained of. Hartvig v. Lumber Co., 19 Or. 522, 25 P. 358; Ransier v. Railway Co., 32 Minn. 331, 20 N.W. 332. Now, in this case, the accident occurred at a public street crossing, much frequented by children going to and returning from school, at a time when the children might reasonably be expected to be using the crossing, and therefore the law demanded the greater vigilance and care on the part of those in charge of the car. They saw, or could, by the exercise of reasonable care, have seen, the children on or near the track a sufficient length of time before reaching the crossing to have slowed down and had the car under control, but, in place of doing so, were running at a dangerous rate of speed, as we must...