Red Top Taxi Co. v. Cooper

McBRIDE, J. The plaintiff in this case assumed that the counterclaim of defendant is in the nature of an action upon an ordinance, and claims that said ordinance has been superseded by the state law and, therefore, defendant has not shown any cause of action. It is true that the defendant’s counterclaim refers very frequently to the city ordinance and plaintiff’s violation of it; but, independently of the question, as to whether this portion of the ordinance has been superseded, the counterclaim states a good cause of action under the state law. The sum of it is that defendant was lawfully traveling on Fourth Street in the City of Portland, and at the intersection of *613 Fourth and Oak Streets, after giving the required signal, he turned to the left on the right side of Oak Street to go east; that at the time he made the turn plaintiff’s car was 100 feet or more south of the intersection and on the right side of Fourth Street, and, while he was in the act of crossing the car track on Fourth Street, plaintiff’s taxicab, which was driven at an excessive rate of speed, from 30 to 40 miles an hour, skidded into defendant’s car with the result that defendant’s car was damaged in the sum of $182.50. Plaintiff lays great stress upon the fact that the defendant saw the car coming north on Fourth Street at a distance of 100 feet, when he made the turn, and seems to assume that, if the cab was progressing along Fourth Street at any distance where it could be seen, it was defendant’s duty to have stopped his car and allowed plaintiff’s car to pass before proceeding further. Plaintiff evidently bases this assumption upon some utterances of this court in the case of Ramp v. Osburn, 115 Or. 672 (239 Pac. 112), which opinion seems to give some color to his contention; but that case is expressly overruled in this particular in Casto v. Hansen, 123 Or. 20 (261 Pac. 428), in an opinion by Mr. Justice Belt which held that, where a party entering an intersection with an intent to cross sees an automobile approaching from the right at a distance, which would lead a reasonable person, attempting to cross the street, to believe that he could do so before the automobile coming from the right would reach the intersection, contributory negligence does, not follow as a matter of law by reason of his making such an attempt. The authorities therein cited seem to be conclusive on this subject and show the futility of any hard-and-fast rule that would require a party, before crossing a street, to wait until *614 a car approaching from the right had passed irrespective of its distance from the intersection or its apparent speed. To apply the doctrine announced in Ramp v. Osburn, supra, to a city street would practically block traffic, because, as is well known, traffic on the streets in the City of Portland often proceeds in an almost continuous string and if a person, desiring to cross, is required to wait until every car approaching from his right has passed he would never get across. So this case reduces itself into two pure questions of fact. First, was defendant justified, as a reasonable man, in assuming that he could cross the street in safety before plaintiff’s car approached the intersection? Second, was plaintiff’s car being driven at a rate of speed exceeding 20 miles an hour as prescribed by the state law as well as by the city ordinance? If both of these contentions are solved in favor of defendant, then the question, as to whether plaintiff’s car was being driven at a reckless rate of speed, and the question, as to whether such recklessness was the cause of the injury, are questions which, if there is conflicting evidence, must be solved by the jury. The evidence in this case is about as conflicting as can well be imagined. There was testimony on behalf of plaintiff, which, if believed, would have justified the jury in finding for the plaintiff. There was also testimony, adduced by defendant, which, if believed, would have justified the jury in finding for the defendant. "We have no right to weigh this testimony so long as there is any substantial testimony to support the verdict: Const., Art. VII, subd. 3c. In our opinion there is such testimony in this case, and the judgment must be affirmed. Rand, C. J., and Coshow and Brown, JJ., concur.