Oberstock v. United Rys. Co.

Mr. Justice Bean delivered the opinion of the court. After the close of plaintiff’s evidence defendant interposed a motion for a nonsuit, the denial of which is the first error assigned. There is a dispute as to the condition of the street where the accident happened. It is the contention of plaintiff, and there was .evidence tending to show, that the street through the town of Linnton upon which the railway is situated is used upon both sides of the railway, and that the travel crosses back and forth diagonally from one side of the street to the other; that this condition extends north of Lemme’s store for a distance of about 150 feet; and that the accident occurred along the street where the travel crossed in the manner indicated. It is the contention of defendant that the accident did not happen on the crossing at all; that there — 204 — is a regular crossing of the highway over the railroad immediately north of Lemme’s store, and that in traveling south at this point the center of the crossing is opposite the door of Lemme’s store; that the plaintiff and his horse were struck at a point at least 150 feet farther north where there is no crossing; that the mishap resulted from the backing of the horse across the highway and against the car as the latter was coming to a stop; that the testimony of plaintiff does not show negligence on the part of defendant. 1. Upon what basis shall we determine the question as to the nonsuit? It is a settled rule that to determine this we should consider all the evidence in the case, for the reason that, although plaintiff at the time of resting may have failed to offer proof sufficient to entitle the cause to be submitted to the jury, a ruling denying such motion will not be disturbed if the omission is supplied by the subsequent introduction of evidence: Trickey v. Clark, 50 Or. 516, 519 (93 Pac. 457); Crosby v. Portland Ry. Co., 53 Or. 496 (100 Pac. 300, 101 Pac. 204); Hofer v. Smith, 65 Or. 145 (129 Pac. 761). 2. Mr. Elliott, in his work on Railroads, volume 3 (second edition), Section 1093, states: “As a general rule a railroad company has the exclusive right to use its own track, and one who goes upon it, without an invitation or license from the company, is a trespasser. But this rule does not apply at highway crossings, nor, under ordinary circumstances, where the track is laid longitudinally upon the surface of a street, whether it be that of a commercial or street railroad company. The public, exercising due care, still has a right to use the street. And so the railroad company, likewise exercising due care, has also the right to use that portion of the street upon which its track is laid.. Their rights are in most respects mutual, reciprocal and equal, neither being superior or paramount to the other, except that, as the company cannot so readily — 205 — stop its trains or cars and is confined to its track, it has the right of way of passage thereon, and persons who are upon the track must leave it and give way until the train or car has passed. Where the track is laid along a street, a traveler, although a pedestrian, in the exercise of due care, may cross it at any point and is not confined to the regular crossings.” The general rule in all cases, where a railroad runs along the surface of a street is that the rights of the company and of travelers must each he exercised with a due regard to the rights of the other, in a reasonable and duly careful manner. This usually depends very largely upon the peculiar circumstance of the particular case, and, in order to constitute reasonable care under the circumstances, greater care would be required of a railroad company where its cars run along a street which is continually used by travelers than where it has the exclusive use of its track. In a recent case a commercial railroad company was held liable to one who, in walking along the track in a street hut not at a crossing, had his foot fastened between a rail of the track and a plank inside the track and was run over by a train. The court held that he was not a trespasser, and that the company was negligent both in failing to properly construct and maintain the track and in the management of the train: 3 Elliott, Railroads (2 ed.), § 1094. As to the rate of speed, Mr. Elliott says in Section 1160: “In' the absence of any statute or ordinance upon the subject, no rate of speed is negligence per se. But when considered in connection with other circumstances, as it must be in some cases, the court may sometimes he justified in declaring that the company' was guilty of negligence in running its train at an excessive and dangerous rate of speed under the circumstances of the particular case. Ordinarily, however, the question- is one of fact for the jury. * * A high — 206 — rate of speed may be perfectly proper at country crossings, although it might be considered negligence at a crossing in a populous city.” The railroad company should regulate the rate of speed of its cars with proper regard for the safety of human life and property, especially when running through towns and cities, even at places where there are no public crossings: 2 Thompson, Neg., § 1874. 3. It is contended on behalf of defendant that the testimony of the plaintiff describing the circumstances of the accident and the speed of the train was incompetent and not sufficient to be submitted to the jury. In White, Personal Injuries on Railroads, Section 104, we find it stated that, when properly in issue in a given case, it is generally held competent to establish the speed of trains by anyone familiar therewith, whether experts or not. And for this purpose also the schedule time of a train over its entire run may be shown, the distance and time consumed by a round trip of the train, or the time made just before or after a given place was passed, as bearing upon the rate of speed made at such place. No objection was made to the testimony of plaintiff upon this subject, and it appears that he described the circumstances at the time of the injury fully. The defendant appeared to understand this and introduced evidence tending to show the rate of speed at the crossing some distance north of where the accident occurred, and also at the place. The case differs from that of Yingst v. Lebanon & A. St. Ry. Co., 167 Pa. 438 (31 Atl. 687), relied upon by defendant. 4, 5. The complaint made is as to the weight of plaintiff’s evidence rather than its competency. It therefore became a question for the jury. A similar statement may be made as to -the condition of the street at the place where the injury was received, which, as counsel for defendant state in their brief, was vigor — 207 — ously contested. The mere proof of an accident does not per se prove negligence, but proof of the accident, together with facts and circumstances from which the jury may fairly infer that the accident happened by reason of an alleged negligent act or omission of defendant, is sufficient: Hecker v. Oregon R. Co., 40 Or. 6, 10 (66 Pac. 270); Geldard v. Marshall, 43 Or. 438, 444 (73 Pac. 330); Lillstrom v. Northern Pac. R. Co., 53 Minn. 464 (55 N. W. 624, 20 L. R. A. 589). The jury, having heard all the evidence and having examined the premises, were peculiarly qualified to pass upon this disputed question. We have nothing to do with the conflict in the evidence. The record contains about 250 pages of printed evidence which we have carefully read. There is a direct conflict in the testimony as to whether or not any signal or warning was given to the plaintiff at the time he was seen by the motorman. There is not so much difference in regard to the exact place where the accident happened as to the condition of the street at that point. The jury could reasonably have concluded that the accident was within the town of Linnton where the defendant should use reasonable care in the operation of its cars. In the passage of cars through towns, cities and villages, the management thereof should be consistent with the safety of the passengers and those who have occasion to cross the track in traveling with due care upon the highway: 2 Thompson, Neg., § 1873. 6. Where a motorman of a car has a clear and unobstructed view of a traveler on the track and fails to give warning to the traveler of the car’s approach, he is negligent, though the place of the accident was not at a street crossing. Employees in charge of a motor car are bound to keep a lookout along its tracks, where persons are likely to be found, in order to give proper signals in case of danger: Nellis, Street Eailways, §380. — 208 — 7. If the jury believed the statement of the plaintiff that at the time of the casualty he was crossing the track and trying to get off, this, in connection with the evidence of the motorman that he saw. the plaintiff when the car was about 100 feet from him, may have caused the jury to believe that the motorman had time to stop the car before striking plaintiff’s horse, as the motorman says he could stop the car within 100 feet. There is a conflict in the evidence in this regard; the motorman'asserting that plaintiff was upon the highway at the side of the railroad and backed his horse against the car. This question was for the jury to solve. The speed of the car was not the only matter for the jury to consider in order to determine whether or not the defendant was negligent. Negligence of defendant is predicated upon excessive speed and lack of warning in the operation of the car at a place where people customarily crossed the railway tracks. Even the maps offered in evidence by the respective parties exhibit the locus in quo with a marked difference. As explained they appear to be correct, as far as they show. 8. For the guidance of trial courts and attorneys, we mention that much of the evidence given relates to the maps. The witnesses indicated to the jury; the reporter noting the word “indicating,” without the record showing what the indications were or to what place on the map they referred. This makes the record extremely difficult for us to understand. "When a witness refers to a map or exhibit he should be required to designate thereon, or by language, to what reference is made and in such a manner that the whole testimony can be considered from the record. 9. Defendant asserts that the trial court erred in giving the following instruction: “If you find from the evidence that the railroad track of the defendant at the point where the accident occurred is laid or located — 209 — upon the public highway or street in the town of Linnton, then the plaintiff would have the right to pass over the track, in the exercise of due care, and would not be confined to any regular or particular crossing.” Defendant complains that this instruction would require the company to operate its cars along this highway all the way from Portland to Burlington with the same speed and care as when upon the streets of the city. The instruction, however, refers to the “street in the town of Linnton,” and, taken with the other instructions to the jury, we think was proper and fair under the evidence. Finding no error in the record, the judgment of the lower court is affirmed.' Affirmed. Mr. Chief Justice McBride, Mr. Justice Bakin and Mr. Justice McNary concur.