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Action by Mollie Wolf, administratrix of the estate of Isaac Wolf, deceased, against the City & Suburban Railway Company Judgment for plaintiff, and defendant appeals. Affirmed.

W. P. Lord and E. B. Seabrook, for appellant. A. Bernstein and D. S. Cohen, for respondent.

MOORE, J. This is an action by Mollie Wolf, as administratrix of the estate of her husband, Isaac Wolf, deceased, against the City & Suburban Railway Company, a corporation, to recover damages resulting from his death, which was caused by his being struck by one of the defendant's cars, August 26, 1902, in the city of Portland. The negligence alleged as a basis for the recovery is that the car causing the injury was being run down a steep incline on First street, from Montgomery to Mill street, at a reckless, dangerous, and excessive rate of speed, and without any warning being given of its approach to the crossing at Mill street. by reason of which carelessness, and without any fault on his part, Wolf sustained the injury, at the intersection of First and Mill streets, a public crossing, which resulted in his death. The answer denies the material allegations of the complaint, and a vers that at the time of the accident the defend. ant's agents and servants were exercising due care and caution in conducting and managing the car, and that the hurt complained of was caused by the contributory negligence of plaintiff's intestate. The reply put in issue the allegations of new matter in the answer, and, the cause being tried, judgment was rendered against the defendant, for the sum of $5,000, and it appeals, assigning as error, inter alia, the action of the court in refusing to grant a judgment of nonsuit at the conclusion of plaintiff's case, and in denying a request to direct the jury to return a verdict for the defendant when all the testimony had been submitted.

A former judgment in this action for the sum of $500 was reversed in consequence of the court's refusal to grant a nonsuit. Wule v. City Railway Co., 45 Or. 416, 72 Pac. 329, 78 Pac. 668. The testimony produced at the last trial is substantially the same as that given at the prior hearing, except that one S. Price, who had not theretofore been called by either party, appeared as plaintiff's witness; and hence a determination of the errors alleged must rest upon a consideration of his declarations under oath, when examined in connection with other evidence. Before reviewing his testimony, however, it is deemed proper to call attention to the locus in quo where the injury occurred. The testimony shows that First street, in the city of Portland, extends northerly on a downgrade from Montgomery to Mill street, which highways cross it at right angles, and the blocks situated between the intersecting crossstreets are 200 feet in length, and the streets mentioned 60 feet in width; that the defend

ant owns two parallel tracks on First street, the rails of each of which are placed 3 feet and 6 inches from center to center, and the space between the two tracks is 5 feet and 8 inches from center to center, of the rails; that the cars, which are operated by electricity, in going north run on the east track, and those proceeding in an opposite direction pass over the west line; that doubletruck car No. 61, which struck the decedent, is 28 feet long, and 34 persons can be seated therein, but at the time of the injury there were on the car 53 passengers, a motorman, and a conductor.

Price's testimony is to the effect that at the time of the accident he was standing, with others, at the northeast corner of First and Mill streets, awaiting the approach of a car going north, to become a passenger there. on; that he first saw Wolf going south on the west side of First Street and thence nearly across Mill street, where he turned southeasterly to the south cross-walk on the latter street, and as he reached the west line of the rails the witness first saw the car up the hill coming down fast; that he did not hear any bell rung, nor was the speed of the car slackened; that when Wolf reached the east line of rails the car was about 50 feet south of Mill street, and before he could cross the track he was struck and injured by the car, which passed entirely across the street before it was stopped. On cross-examination the following questions were asked, and responses thereto made: “Q. Where was the car when you first saw it? A. I saw it about Montgomery street, as soon as it came up the hill. * * * Q. Was it at Montgomery street when you saw it first? A. That is something I could not tell you. Q. Will you swear it was as far up as Montgomery street when you first saw it? A. I could swear it was a block away when I seen it. Q. Where was Mr. Wolf when you first saw the car? A. He was on the first track—on the west track. Q. When you first saw the car, Mr. Wolf was then on the west track, the one the cars run up on? A. Yes; on the west track. Q. And where was the car then? How far up? A. A block. Q. Up at Montgomery street, one block away? A. Yes. Q. Was Mr. Wolf walking at a tolerably brisk speed, or was he going very slowly? A. He was walking pretty briskly. Q. And he walked right along all the time and did not stop? A. Yes. Q. You looked at him all the time? A. Yes. *

Q. When Mr. Wolf came up the track, did you notice whether he looked up or down to see whether there was any car coming ? I noticed that he kind of looked in the heginning of his going on Mill street. I noticed that when he went in on Mill streetI noticed that when he went in to cross on Mill street-he turned in and looked a little to see if any car was coming.

* Q. Was there anything to obstruct his view, if he looked up the street from where he was? A. Nothing in the way. It was uphill. Q.

There was nothing in your way? A. Nothing in my way."

It is argued by defendant's counsel that Price's testimony is so opposed to all reasonable probabilities as to require its exclusion as a matter of law from the jury, leaving the case as it stood at the former appeal; and, this being so, errors were committed as alleged. There are certain facts of such general notoriety that they are assumed to be known by a court without any proof thereof (B. & C. Comp. $ 719) and if the testimony of a witness transcends the laws of nature it is undoubtedly the duty of a court to withdraw such testimony from the consideration of the jury (Smitson v. Southern Pacific Co., 37 Or. 74, 60 Pac. 907). Thus, in Blumenthal V. Boston & Maine Railroad, 97 Me. 255, 54 Atl. 747, it was ruled that, when the undisputed circumstances show that the story told by a witness upon a material issue cannot by any possibility be true, it is incumbent upon the court to take such testimony from the jury. In that case the plaintiff was hurt by a collision with the defendant's train, after he had successfully crossed two of its tracks; and in referring to the circumstances of the injury, as detailed by the party suffering therefrom, Mr. Chief Justice Wiswell makes the following observation : "The plaintiff, according to his own testimony, was driving at a fast walk, and witnesses for the plaintiff testified that in their judgment the speed of the freight train was from 15 to 20 miles an hour. Assuming these estimates to be correct, when the plaintiff was upon the first track, with an unobstructed view of the railroad easterly for a distance of between 300 and 400 feet, the train was only from 125 feet to 150 feet distant from the crossing, because the speed of the train was only five or six times that of the plaintiff, and they came into collision after the plaintiff hac! traveled a distance of 25 feet. Consequently, when the plaintiff was upon the first track, 25 feet distant from the place of collision, he had an unobstructed view of the approaching train, which was not more than 150 feet distant on the track from the crossing. If the relative speed of the freight train was not as great as the witnesses have estimated, then, of course, the train was still nearer the crossing at the time the plaintiff was upon the first track. There is no controversy about these facts. They are shown by the testimony introduced by the plaintiff, and by the plan which the plaintiff used and which is made a part of the case. From these facts one of these two conclusions is irresistible: Either the plaintiff failed to take such precautions as to looking and listening before attempting to cross the third track as have been laid down by all authorities as indispensable to his right of recovery, or else he did look and saw the approaching train, and took his chances of safely crossing in front of it. In either event his negligence contributed to the accident, and in accordance with the settled

law of this state that negligence will prevent his recovery." In Spiro v. St. Louis Transit Co., 102 Mo. App. 250, 76 S. W. 684, Mr. Justice Goode, discussing the legal principle under consideration, remarks: "Verdicts resting on evidence which looks contrary to the ordinary course of nature are not infrequently set aside, and retrials directed, by appellate courts, as a proper precaution against an unjust outcome of litigation. While it is fundamental that juries must weigh evidence and trial judges revise their findings, instances happen in which, from one cause or another, this practice so obviously failed to work out a right result that an imperative call is heard to supplement it by an exceptional procedure in order that justice, the end of all procedure, may not be frustrated. This prerogative of courts of error is sparingly employed ; but that it exists, as an emergency expedient, for the correction of verdicts palpably wrong, is certain. The appropriate use of it does not require a court to be convinced that the jury found an event to have occurred that was physically impossible or miraculous. It is enough if the event found was so improbable according to the ordinary operation of physical forces, or was so overwhel ningly disprored by credible witnesses, as to compel the conviction that the jury either failed to weigh the evidence carefully, or drew unwarranted inferences, or yielded to a partisan bias." So, too, in Stafford v. Chippewa Valley Electric R. Co., 110 Wis. 331, 85 N. W. 1036, Mr. Justice Marshall, commenting upon the claim respecting the relative speed of a car and of a vehicle in which the plaintiff was riding, says: “The idea that the car moved from a point where it was out of sight from plaintiff's point of view when she looked to where it was when the horses became frightened, a distance of some 275 feet, while the horses traveled but about 20 feet, making the speed of the car somewhere about 50 miles per hour, or twice as great as the most extravagant testimony of plaintiff's witnesses puts it, is as well within the bounds of the ridiculous, we venture to say, as anything that has heretofore received serious consideration by a trial court or jury. We caunot believe for a moment that the learned trial court or the jury believed that such a thing could be within reasonable probabilities, or that the case was submitted to the jury upon any such theory."

The defendant's counsel, invoking the rule enunciated in the cases from which the foregoing excerpts have been taken, insist that, as it appears from Price's sworn statements Wolf passed from the west rail of the west track to a point about 12 inches east of the east rail of the east track, a distance of 13 feet and 8 inches, where he was struck by the corner of the car, while it was going from Montgomery street to Mill, a space of 200 feet, shows that the car must have traveled more than 14 times faster than he did; and, assuming that Wolf walked at the moderate rate of 3 miles an hour, when the

witness said, "He was walking pretty brisk- and in Stafford v. Chippewa Valley Electric ly," demonstrates that the car was going at R. Co., supra, to which cases reference has a greater rate of speed than 42 miles an hereinbefore been made, there was no conhour, which conclusion is so improbable as flict of testimony as to the rate of speed of conclusively to show that the testimony giv- the train and car respectively causing the inen by Price, as an attempt to establish a

jury, while in the case at bar that question probative fact, is worthless, and should have is controverted. In order clearly to underbeen rejected as false, and hence an error stand this branch of the subject, a statement was committed in denying the motion for a of the defendant's theory of the cause and judgment of nonsuit. It was admitted at the manner of the injury is deemed appropriate. trial that, though the streets where the ac- No witness was called at the last trial by cident occurred are 60 feet wide, the distance

the defendant, but its counsel read to the from curb to curb of such highways is only jury the testimony given on behalf of their 36 feet, and, as Price was standing at the client at the prior hearing. This evidence is northeast corner of First and Mill streets, he

set out with some particularity in the former must at least have been more than 36 feet opinion (Wolf v. City Ry. Co., 45 Or. 446, 72 north of where Wolf was at the time the Pac. 329, 78 Pac. 668), and may be thus sumlatter was injured. It will be remembered

marized: As the car was going north about that Price testified that when he first saw 10 o'clock in the forenoon of August 26, 1902, the car Wolf was by the west track, and that which was a dry day, Wolf was seen crossing the car was then about at Montgomery street. First street, at the south line of Mill, whereOn cross-examination he was asked, "Was

upon the motorman immediately rang the it at Montgomery street when you saw it bell and applied the brakes, checking the first?”' and answered, “That is something I speed of the car from 8 or 10 miles an hour could not tell you." He further said, “I to 3 or 4, during that period of time; that could swear it was a block away when I seen when Wolf reached the west track, where his it." In reply to the inquiry, "Up at Mont- view was unobstructed, he halted as if to gomery street, one block away?" he said, permit the car to pass, and the motorman “Yes." If Price's last answer can be con- then released the brakes and the car started strued as definitely locating the car at Mont- ahead, but when it was within about 7 or 8 gomery street when Wolf had reached the feet south of the crossing Wolf suddenly atwest track, the inference which the defend- tempted to pass in front of it, whereupon ant's counsel seek to establish from the testi- the brakes were firmly applied, but the momony of this witness would seem to be deduc- torman was unable to stop the car in time ible. The jury, however, who heard Price to prevent the accident, or until the front testify, may have observed that he did not trucks had just passed over the north crossing give proper attention to that inquiry, and, if of Mill street. C. F. Swigert, who was, and so, they had a right to compare and weigh for several years prior to the accident had his entire testimony, and were warranted in been, the manager of the defendant corporaconcluding that he intended to convey the tion, testified, as its witness, that he was acidea that when he first saw the car it was quainted with the practical working of an about 200 feet from him, and therefore at electric car and knew the manner of stopping least 36 feet nearer Wolf. If it were con- one, and that, in his opinion, the shortest disceded that the car passed over 164 feet of tance in which such a car could be stopped track while Wolf was walking 13 feet and 8 that was running at the rate of 6 miles an inches, the car would necessarily have attain- hour was 30 feet, at 8 miles an hour 40 feet, ed a velocity 12 times greater than that of and at 10 miles an hour 50 feet. Joseph the deceased, or 36 miles an hour, if he walk- Friedman, as plaintiff's witness, testified that ed 3 miles in that time. Price's frequent use after striking Wolf the car was not stopped of the word "about," when employed to until its rear end was about two lengths of qualify the distance to which he referred, the car, or 56 feet, north of Mill street. Joconvinces us that he did not intend definitely seph Ruvensky, testifying for the plaintiff, to locate the position of the car at any par- said the car passed entirely across that street ticular time with reference to Wolf's move- before it was stopped. Mrs. Alice Walker, ments. If the rate of speed which the car as a witness for the same party, testified acquired as it ran heavily loaded down an in- that the car was stopped below the crossing. cline was definitely known, and Wolf's rela- Mrs. Mary Park, as the defendant's witness, tive position with reference to it certain at testified that she was a passenger on the car all times until he was injured, it might be at the time Wolf was injured, and on crosspossible to determine whether or not Price's examination, in referring to tne place where testimony violated the laws of nature; but the car was stopped after the accident, she in the absence of such information we believe stated, "I think it was about the middle of a fair construction of his sworn statements the block, or across over the crossing." shows that they are not so improbable as to Assuming the fact most strongly against have warranted a declaration by the trial the plaintiff, that her husband was struck court, as a matter of law, that his testimony while he was at the extreme north line of the was unworthy of belief.

south cross-walk of Mill street, the car ran In Blumenthal v. Boston & Maine Railroad across the remainder of that highway, or 48

feet, and if Friedman's testimony is to be believed the front end of the car, which was the line of contact, was not stopped until it had gone three times the length of the car, or 86 feet, below the crossing, thus making the entire distance, according to bis estimate, 132 feet over which the car passed before it was stopped after causing the injury. If Mrs. Park's opinion is accepted, however, the intervening space over which the car passed after the accident, before it could be stopped by the motorman, who testified that he set the brakes as hard as he could, was 148 feet. As the speed of a car may reasonably be determined by the distance which it covers on the rails before it can be stopped, when the brakes are properly applied, and as the rate per hour is ascertained, as explained by Swigert, who is an expert in such matters, to be equivalent to one-fifth of such distance, the iury were authorized to infer from the testimony admitted that the car was running at the rate of 26.4 or 29.6 miles an hour when the injury occurred, and that in the management of the instrumentality the defendant's agents and servants were negligent. Marden v. Portsmouth, etc., Street Ry. Co., 100 Me. 41, 60 Atl. 530, 69 L. R. A. 300, 109 Am. St. Rep. 476; Chisholm v. Seattle Electric Co., 27 Wash. 237, 67 Pac. 601. Such deduction, when compared with Price's testimony, convinces us that no error was committed in submitting his sworn statements to the jury for their consideration. We are confirmed in this view by the testimony of Joseph Ruvensky, who, having stated that, at the time of the accident, he was on the west side of First street going north; that he heard the car hack of him, and at the same time saw Wolf crossing the south side of that street, was asked, "When you first saw Mr. Wolf at that time, how far up the street were you on the west side?" and he replied, “I was about half a block." On cross-examination, the defendant's counsel, referring to Wolf, inquired, 'How far was he from the curb on the west side when you first saw him?" and the witness answered, “The first time I saw him, he was at the first track, passing.

Q. Tow many steps did he take before the car came in sight? A. He was crossing. He was in the middle of the track, and crossing the "racks. Q. That is the position he was in when the car passed you? A. When the car passed me I did not see him. Q. You did not see the car pass you? A. I saw the car pass, ut I did not see Mr. Wolf at that time. Q. How far was the car from the crossing when it passed you? A. The car was about three 'louses from the baker shop. Q. Then that was three houses above the baker shop, and the baker shop and another house on the corner, so that would make it about five houses. The car was about five houses away? A. Yes."

In referring to the testimony last quoted. the defendant's counsel make the following

statement in their brief, to wit: “The usuai width of houses is 16 feet, which would place him (Ruvensky) 80 feet from the corner where he saw Wolf crossing the track, when the car was so far behind him and up the street that he could not see it without looking around, nor did he see it until it afterwards passed him. Now, if the car was running at the rate of speed to which he testified, it must have been at least 30 feet further back, which would place the car not less than 100 feet from the crossing where Wolf was seen by Ruvensky in the act of crossing. No testimony was offered tending to show the width of the houses mentioned, nor did Ruvensky indicate the rate of speed which the car attained, except to state that it was going fast, and that it was about two seconds after it passed him before Wolf was struck by it. It is impossible accurately to determine from Ruvensky's testimony how far south of Mill street the car was when he first saw Wolf, or how far the witness was at that time from the street corner, except his estimate as to the latter distance, that it was about half a block, or 100 feet, and the car still further behind him. “A person about to cross a street at a regular crossing,” says Mr. Justice Fell, in Callahan r. Philadelphia Traction Co., 184 Pa. 425, 39 Atl. 222, “is not bound to wait because a car is in sight. If a car is at such a distance from him that he has ample time to cross if it is run at the usual speed, it cannot be said as a matter of law that he is negligent in going on." So, too, in Philbin v. Denver City Tramway Co. (Colo.) 85 Pac. 630, Mr. Justice Maxwell, in speaking of the measure of care demanded from a traveler on a public highway, asserts: “It is not negligence per se for one to cross a street railway track in front of an approaching car, which he has seen and which is not dangerously near.” If the jury believed the testimony of Ruvensky and of Price, they had the right to conclude that the approaching car was not dangerously near when Wolf attempted to cross the tracks in front of it, and they also had the right to find, from the testimony of plaintiff's witnesses, that the gong was not sounded, nor any effort put forth to check the speed of the car.

No ordinance limiting the rate of speed of a street car in Portland having been offered in evidence, nor any testimony produced tending to show what is the standard of legitimate speed for an electric car on First street in that city, Mr. Seabrook, of counsel for the defendant, called attention at the trial to the case of Yingst v. Lebanon, etc., Ry. Co., 167 Pa. 438, 31. Atl. 687, asestablishing the rule governing the case at bar. In that case the plaintiff was injured by the upsetting of a wagon in which she was riding, occasioned exclusively by the fright of the horse which was drawing the vehicle. The negligence alleged was that the car was


running at an excessive rate of speed, which sideration. Davis V. Concord & Montreal caused the fright of the animal and thereby Railroad, 68 N. H. 247, 44 Atl. 388. The rule occasioned the injury. In rendering the de- thus announced is applicable in thickly popucision, Mr. Justice Green, speaking for the lated or much-used districts, regardless of court, in referring to the plaintiff's witnesses, the fact whether or not a statute has been says: “Not one of them was even asked the enacted or a municipal ordinance adopted question whether the speed of the car was limiting the rate of speed. Sundmaker V. greater than was allowable for an electric Yazoo, etc., Ry. Co., 106 La. 111, 30 South. car to run, or whether they had any knowl- 285. Though the accident occurred in the edge upon that subject. No experts in such city of Portland, no testimony was offered matters were called to testify as to what tending to show the number of people who would be a reasonably prudent rate of speed lived in the vicinity of First and Mill streets, for such a car over such a street, and, in or to estimate the persons who might reasonshort, no evidence whatever was given upon ably be expected to cross the defendant's that subject. Nor was any evidence given tracks at that intersection. It does appear, for the plaintiff as to the actual rate of speed however, that at the time of the injury seven at which this car was run, and therefore the persons were on the street at or near the plaintiff did not furnish any proof which crossing, and from that number the jury had could guide the jury in considering whether the right to infer that the highway was much the defendant was guilty of any negligence used. In Golinvaus v. Burlington, etc., Ry. in this regard.” Further in the opinion it Co., 125 Iowa, 632, 101 N. W. 465, it was is observed: “Electric cars have a lawful ruled that, in the absence of an ordinance right to go 'fast-to go witb 'speed.' The

regulating the rate of speed, a train running fact that they can do so is one of the great in the suburbs of a city across a street at reasons of their being. When a witness says, the rate of 60 or 65 miles an hour was not therefore, in a given case, that the car ran of itself negligence, but was a circumstance swiftly or with speed, he says nothing to the to be submitted to the jury, with other evipurpose when the inquiry is as to negligence

dence tending to show that the view of a in the rate of travel. Such testimony is al- traveler was obstructed at that crossing and together too uncertain for judicial action, and that no bell was rung. Whether or not such most especially so when there was no col- excessive velocity of a train in the outlying lision, but only the fright of a passing horse." districts of a city is not per se negligence, In Harkins v. Pittsburg, etc., Traction Co., even in the absence of a municipal ordinance 173 Pa. 149, 33 Atl. 1045, it was held that regulating the rate of speed, need not now the rule thus announced was not applicable be considered; for the principles of law govwhere a person was injured by being struck erning the management of trains propelled by by a car. ,

The court, referring to the legal steam power and regulating cars operated by principle invoked, say: “The circumstances electricity are not identical. Marden v. of the two cases are not alike, and the degree Portsmouth, etc., Street Ry. Co., 100 Me. 41, of care required was not the same. In one . 60 Atl. 530, 69 L. R. A. 300, 109 Am. St. Rep. case the speed of the car was wholly unim- 476. In that case it was determined that portant, except as it contributed to causes

the rule promulgated in Blumenthal v. Boswhich produced an unexpected result, the ton & Maine Railroad, 97 Me. 255, 54 Atl. fright of the horse; in the other, the rate 747, hereinbefore noted, was not applicable. of speed was of primary importance, as We conclude, therefore, that the rule invokindicating the degree of control which the ed is not appropriate to the case at bar, and motorman exercised over the movements of that Wolf, when he attempted to cross the the car in a crowded street, and when in a street, had the right to assume that the car, position demanding a high degree of care." which was at such a reasonable distance,

It is incumbent upon a street railway com- would permit him to do so, if run at the pany, in operating its cars at public cross- usual rate of speed (Hamilton v. Consolidatings, to use ordinary care to avoid injury; ed Traction Co., 201 Pa. 351, 50 Atl. 946); that is, such a degree of solicitude for the and hence no error was committed in refuswelfare of others as persons of average pru- ing to instruct the jury to find for the dedence would exercise, in view of the danger | fendant. reasonably to be apprehended and of the It is maintained by defendant's counsel that consequences of accidents resulting there- the judgment given is excessive, and for that from. Excessive speed at such places aug. reason an error was committed in refusing ments the danger of collision with travelers, to set the verdict aside and to grant a new and, as it might reasonably have been infer- trial. In Lindsay v. Grande Ronde Lbr. Co. red from the testimony produced at the trial (Or.) 87 Pac. 145, it was ruled that the rethat at the time of the accident the car caus- fusal of a trial court to set aside a verdict

ing the injury was running at a rate of 26 as excessive could not be reviewed on appeal, 1 or 29 miles an hour, the court could not say, as the question presented was one of fact,

as a matter of law, that the speed war rea- and not of law. sonable, and hence it was its duty to sub- Other errors are assigned; but, deeming mit that question to the jury for their con- them unimportant, the judgment is affirmed.

91 P.-30

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