Wolf v. City & Suburban Ry. Co.

• Decision Date: 01 May 1903
• Citation: 72 P. 329,45 Or. 446
• Parties: WOLF v. CITY & SUBURBAN RY. CO.
• Court: Oregon Supreme Court

72 P. 329

45 Or. 446

WOLF v. CITY & SUBURBAN RY. CO.

Supreme Court of Oregon

May 1, 1903

Appeal from Circuit Court, Multnomah County; J.B. Cleland, Judge.

Action by Mollie Wolf, as administratrix of the estate of Isaac Wolf, deceased, against the City & Suburban Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

On August 26, 1902, Isaac Wolf, while crossing First street at the intersection of Mill, in the city of Portland, was killed by one of defendant's cars. The plaintiff was appointed administratrix of his estate, and brought this action to recover damages for his death, on the ground that it was caused by the negligence of the defendant. The complaint alleges that there is a steep grade or incline from Montgomery to Mill street; that at the time of the accident one of defendant's cars was being run down this grade at a reckless, dangerous, and excessive rate of speed, and without any warning being given of its approach to the crossing; that by reason of such negligence, and without any fault on his part, Wolf was struck by the car and killed. The answer denies the negligence alleged, and avers that the defendant's agents and servants were in the exercise of due care and caution, and that the accident was due to the contributory negligence of Wolf. At the close of the testimony, the defendant requested the court to charge the jury to return a verdict in its favor. This motion was overruled, the jury found a verdict in favor of the plaintiff for $500, and from the judgment entered thereon this appeal is taken.

John M Gearin, for appellant.

D Solis Cohen, for respondent.

BEAN J. (after stating the facts).

The sole question for our determination is whether the court erred in refusing defendant's request to direct a verdict in its favor. The defendant has two parallel tracks, about 6 feet apart, on First street, and the deceased was killed by one of its northbound cars on the east track. The evidence for the plaintiff as to the circumstances of the accident consists of the testimony of Joseph Friedman, Joseph Ruvensky, Mrs. Walker, Mrs. Alter, and Mrs. Motts. Friedman when the accident occurred, was standing on the west side of First street, about 40 or 50 feet north of Mill, and about 100 feet away. He first saw the car when it was near Montgomery street, but paid no particular attention to it afterward until he heard some one call out, when he looked up, and saw it strike Wolf. He testified that the car was running at a rapid rate of speed; that he heard no bell rung or warning given of its approach to the crossing, and first saw the deceased on the track in front of the car just before it struck him. Mrs. Walker and Mrs. Motts were standing on the north side of Mill street, waiting to take the car to go down town. They both testified that they saw the car approaching, and that they heard no bell or gong sounded and that they saw Wolf crossing the street, and did not see him stop, but, on cross-examination, said that the first they saw of him was just before he was struck by the car. Mrs. Alter, who was standing near the door of her place of business, on the east side of First street, about 20 feet south of its intersection with Mill, stated that she first saw the car about the middle of the block, coming from Montgomery toward Mill street; that she saw Wolf crossing First street on Mill, from west to east; that she heard no gong sounded, and the car was coming very fast; that she watched both Wolf and the car until the accident happened; and that Wolf walked straight across the street, without stopping. On cross-examination she testified that she was playing with a child at the time, and calling its attention to the approaching car; that she first saw Wolf coming from the west side of First street, and did not see him stop until he was run into by the car. Ruvensky was on the west side of First street, above Mill, going north. He testified that while he was going down the street the car passed him, and that he saw Wolf crossing Mill street, and he did not stop; that he did not see him when the car struck him because he (witness) was on the other side of the street; that the car was running fast; and that he did not hear the bell or gong sounded. On cross-examination he said that he first saw Wolf when he was on the "first track." The evidence for the defendant consists of the testimony of passengers aboard the car, and of its operators. C. Grohs was a passenger on the car at the time of the accident, standing on the front platform, at the right of the motorman. He testified that when the car was about the middle of the block between Montgomery and Mill streets he saw Wolf on Mill; that the motorman immediately rang his bell and slacked up the car; that when Wolf reached the west track he stopped in the middle of it, apparently to let the car go by; that the motorman then loosened up the brake, and the car started ahead, but when it was within seven or eight feet of the crossing Wolf suddenly attempted to pass in front of it, when the motorman again applied the brake, but was unable to stop the car in time to prevent the accident. J.R. Carswell, also a passenger on the car, was standing on the west side of the front platform. He testified that soon after the car passed Montgomery street he saw Wolf step from the sidewalk to the street, as though to cross to the east side; that the view was unobstructed, and there was nothing to prevent Wolf from seeing the car; that the motorman...