Ryberg v. Portland Cable Railway Co.

Strahan, C. J. There is but one question presented by this record, and that is, the action of the court in overruling the defendant’s motion for a nonsuit, made at the conclusion of the evidence on the part of the plaintiff. This motion brings up the evidence on the part of the plaintiff, and requires us to say whether or not there was any evidence before the jury at the time the motion was made, taking the most favorable view of it, that would justify a verdict in favor of the plaintiff. In disposing of this motion, we are to assume that the witnesses were credible and that their statements as given are true. The appellant’s contention is directed to two points First, that there was no evidence before the jury showing that the appellant was negligent at the time of the injury; and, second, that the evidence introduced on the part of the plaintiff shows that he was guilty of negligence directly contributing to the injury. We have attentively considered the evidence bearing upon the first question; and without attempting to state its effect, there was some evidence, though slight, of negligence on the part of the plaintiff. If, as the evidence tends to prove, the space on the east side of the turntable and between it and the sidewalk was blocked up with another team, it left no passway except over and across the west side of the turntable and a part of the street. If the manhole was open at the time, as is admitted by both sides, it is possible the plaintiff might have approached so near it before discovering it [228] that he could neither escape nor recede, under the impression that he would be able to pass on that side; and if there was no one on guard to warn off approaching teams while the hole was kept open, it would probably be such want of care as would subject the defendant to liability in case of injury. And on this theory, though the evidence is not strong, nor if we were called upon to weigh it, at all satisfactory, it was possible for the jury to give it such effect as to find the verdict it did. e On the second question, or the plaintiff’s contributory negligence, the same reasoning applies. The manhole being open, and so far as appeared at the time the motion for a nonsuit was made, no one there to guard or give warning to approaching teams, the plaintiff might have advanced so far that the collision was inevitable, under the impression 'that he could safely pass. We do not say that this is the best or even the most probable or reasonable view of the evidence, but it is one the jury might and probably did adopt; and on this motion we are unable to say affirmatively that they erred. It was their province to take that view of the evidence, if they thought it the most reasonable, and we could not reverse the judgment on that ground without directly invading their province. It. is true, when such a question comes before us, and there is no evidence on a material issue, we have several times felt constrained to order a nonsuit; but it has been solely on the ground that there .was no evidence before the jury which, within the principles stated, could have authorized or justified a verdict for the plaintiff. In what we have said, no account is taken of the state of the case after the defendant introduced the evidence on its part. We have referred entirely to the evidence on the part of the plaintiff at the time the motion for a nonsuit was made. What verdict the jury ought to have rendered on the whole ease, it is not our province to decide. It involves the credibility [229] of the witnesses on both sides, as well as the effect of the evidence, which were matters exclusively for the jury. Finding no error in the judgment appealed from, the same must be affirmed.