Devroe v. Portland Ry. L. & P. Co.

Mr. Justice Bean delivered the opinion of the court. We have set out sufficient evidence to show that it is exceedingly contradictory. There were several other witnesses for defendant, who testified much to the same effect as those above named. In the brief of defendant the evidence is discussed at length, and we are urged to set aside the verdict on the ground of the insufficiency of the evidence. The pivotal question is tersely stated thus: “Was the car in motion and traveling so rapidly that it was the height of folly to attempt to board it, either at a stop point or at a nonstop point, it makes no difference which in the discussion of this question?” Counsel for defendant requested the court to direct the jury to return a verdict in favor of defendant. Section 3, Article VII, of the constitution, as amended in 1910 (Laws of 1911, p. 7), provides that no fact tried by a jury shall be otherwise re-examined in any court of this State unless the court can affirmatively say there is no evidence to support the verdict. There was evidence to the effect that the car stopped at the switch mentioned, and, to sustain plaintiff’s case, sufficient to be submitted to the jury. In Moore, Carriers, 541-543, it is stated thus: “The relation between carrier and passenger can only be created by contract, express or implied. * * The general rule is that any person whom a common carrier has contracted, expressly or impliedly, to convey from one place to another, in consideration of the payment of fare, or its equivalent, and who, in the course of the performance of such contract has been received by the [555] carrier under its care, either upon the means of conveyance, or at the point of departure of that conveyance, is a passenger.” In a case where there is substantial evidence sustaining a verdict, although there be other strong contradictory evidence, we are prohibited from disturbing the verdict. Wills v. Palmer Lumber Co., 58 Or. 536 (115 Pac. 417) ; Purdy v. Van Keuren, 60 Or. 263 (110 Pac. 149) ; Atherton v. Walling, 61 Or. 384 (121 Pac. 796) ; State v. Michellod, 62 Or. 271 (124 Pac. 263) ; Hofer v. Smith, 65 Or. .... (129 Pac. 761, 763). 2. The rule is that, if two inferences may be fairly and legitimately deduced from the evidence, one favorable and the other unfavorable to the defendant, a question is presented which calls for the opinion of the jury. Where the proof of the accident is accompanied by proof of facts and circumstances, from which an inference of negligence may or may not be drawn, the case cannot be determined by the court as a matter of law, but must be submitted to the jury. Anderson v. North Pac. Lbr. Co., 21 Or. 281 (28 Pac. 5) ; Manning v. Portland Shipbuilding Co., 52 Or. 101 (96 Pac. 545) ; Geldard v. Marshall, 43 Or. 438 (73 Pac. 330) ; Miller v. Inman, 40 Or. 161, 166 (66 Pac. 713). 3. Regarding conflicting evidence, Section 868, subd. 2, L. O. L., directs that on all proper occasions the jury shall be instructed that they are not bound to find a verdict in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a presumption or other evidence that does satisfy their minds. It was especially the province of the jury to pass upon the conflicting evidence in this case. It was for them to find, from all the facts and circumstances in evidence, what the truth of the matter was. It being in evidence that the Woodlawn car and the following St. Johns train were [556] close together at Failing Street, 200 feet north of where the casualty occurred, the jury should determine whether or not there was time for the Woodlawn car to stop, to have the trolley changed, and to switch back onto the east track, while the St. Johns train was stopping at Failing Street (half a second, as testified by Mr. Dodge), without causing the latter train to wait at the switch for that to be done. 4. It is argued by defendant’s counsel that the court erred in not instructing the jury as to defendant’s knowledge or means of knowledge of plaintiff’s intestate attempting to board the car. As to this matter the complaint alleged: “That said defendant’s said employees then and there knew, or in the exercise of reasonable care ought to have known, that said deceased was attempting to board said car when the said train was so started as aforesaid.” The court, at the request of the defendant in the charge above quoted, informed the jury that they could not find for plaintiff unless they found that the accident happened as alleged in the complaint. This instruction was correct as' far as it went. Had defendant desired it to be more specific, its counsel should have called the attention of the court to the point, and should have requested an additional instruction; otherwise, it would be assumed that the party assented to the charge as given. We find no such request. Kincart v. Shambrook, 64 Or. 27 (128 Pac. 1003) ; McClung v. McPherson, 47 Or. 73, 76 (81 Pac. 567: 82 Pac. 13). 5. The evidence tended to show, and the jury evidently believed, that it was the custom to receive passengers, when the cars stopped, at the point where the accident occurred; that the motorman and conductor of the St. Johns train saw the decedent at the time he attempted to board the car; and that the car came to a full stop, and other passengers got on at this point at the time of the accident. The case at bar differs from the case of Mc [557] Carty v. St. Louis & S. Ry. Co., 105 Mo. App. 596 (80 S. W. 7, 8), cited with other cases and relied upon by defendant, where plaintiff attempted to board a street car, on the wrong side of a street crossing, at a switch. There was no testimony that either the conductor or motorman saw the plaintiff before or at the time he attempted to get aboard, or knew that he desired or was trying to become a passenger. The conductor was not shown to be looking toward the plaintiff. In that case defendant had a verdict, and there was a reversal. The court said: “If the testimony had shown it was usual to receive passengers there, the plaintiff’s position woni'1 -"~11 taken. * * If there was a usage to take passengers at the switch, the carmen would have been bound to watch and be as careful about starting there as at far crossings—the common and appropriate localities for taking passage—for then persons would have a right to board cars, and the operatives good reason to expect them to do so. Washington R. R. Co. v. Grant, 11 App. D. C. 107; McNulta v. Ensch, 134 Ill. 46 (24 N. E. 631) ; West Chicago St. Ry. v. Manning, 170 Ill. 417 (48 N. E. 958: 70 Ill. App. 239).” Applying this rule, it brings us back to the main question settled by the verdict, to wit: Did the car stop at this switch? 6. No exceptions were taken to the instructions given to the jury. Defendant’s counsel duly saved exceptions to the refusal of the court to give certain requested instructions, and assigns such refusal as error. The second assignment of error is based upon the refusal of the court to give the following instruction: “In this action' you should return a verdict in favor of the defendant, unless you are satisfied by a preponderance of evidence that the deceased was killed by reason of the particular negligence charged against the defendant in the comolaint, and that said accident haooened without any negligence on the part of the deceased.” [558] The defendant also requested the court to instruct the jury that, if they believed that the accident could not have been prevented by proper care and was an unavoidable one, plaintiff could not recover. The requested instructions were fully covered by those given by the court, one of which was given at defendant’s request, as follows: “The particular negligence with which the defendant in this case is charged is that, while the said car upon which he desired to embark as a passenger was standing still on Union Avenue, between Beech and Failing Streets, the deceased attempted to board said car, and while he was in the act of getting on said car that it suddenly started forward with a jerk, throwing him to the ground and causing the injury complained of. This is the only negligence charged in the complaint, and I instruct you that you cannot return a verdict in favor of the plaintiff in this case unless you find that the accident happened in the manner alleged in the complaint.” The court also instructed the jury to the effect that plaintiff must prove the alleged negligence by a fair preponderance of the evidence, and that if plaintiff’s intestate attempted to board the car after the same had started and was in motion, or was guilty of any negligence contributing to the injury, plaintiff could not recover. The cause was fairly submitted to the jury. Finding no error in the record, the judgment of the lower court is affirmed. Affirmed.