Gregoire v. Portland Ry., L. & P. Co.

Mr. Justice Eakin delivered the opinion of the court. 1, 2. The assignments of error by the plaintiff relating to the ruling of the court regarding the admission of testimony were not prejudicial to plaintiff’s case, and will therefore not be considered. The instruction above quoted, the giving of which is assigned as error, we think states the law as applied to the facts developed at the trial, and was unobjectionable. The car was in plaintiff’s view all the time, and he knew that it was approaching him. Men on the car say that it was near the crossing of Carruthers Street, when plaintiff turned upon the track, and the plaintiff himself says his horses had just got off the track when the front wheel of his wagon was hit by the car and badly demolished. Some of the witnesses say that when the plaintiff was passing over the track he was paying no attention to the approaching car, and evidently thought it was the place of the car to stop at the crossing and wait for him to pass. He certainly could not have expected to get safely over the track under the circumstances unless the car stopped. It assuredly was carelessness on his part to attempt to cross the track with the moving car so close. The motorman showed diligence in his efforts to stop the car after he saw the team coining upon the track. Trout, a witness who was standing beside the motorman, testifies that the motorman said: “Look at that! What do you know about that!” and applied the emergency brake as he spoke. Counsel cite the case of Donohoe v. Portland Ry. Co., 56 Or. 58 (107 Pac. 964), to the effect that [398] a driver of a vehicle upon reaching a street railway crossing is not required to stop and wait until an approaching car had passed, but that case holds that it is negligence for a traveler not to look and listen for approaching trains before attempting to cross a railway track, and quotes from Baldwin, Railroad Law, 418: “A driver of an ordinary vehicle can proceed at a highway crossing to go over a street railway in the face of an approaching car when, and only when, he has reasonable ground for believing that he can pass in safety, if both he and those in charge of the car act with reasonable regard to the rights of others. ’ ’ We find no error in the trial. The judgment is affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.