Wolf v. City Railway Co.

Mr. Justice Bean

delivered the opinion.

The sole'question for our determination is whether the court erred in refusing defendant’s request to direct a verdict in its favor. The defendant has two parallel tracks, about six feet apart, on First Street, and the deceased was killed by one of its northbound cars on the east track. The evidence for the plaintiff as to the circumstances of the accident consists of the testimony of Joseph Friedman, Joseph Ruvensky,Mrs. Walker, Mrs. Alter, and Mrs. Motts. Friedman, when the accident occurred, was standing on the west side of First Street, about forty or fifty feet north of Mill, and about one hundred feet away. He first saw the car when it was near Montgomery Street, but paid no particular attention to it afterward until he heard some one call out, when he looked up, and saw it strike Wolf. He testified that the car was running at a rapid rate of speed; that he heard no bell rung, or warning given of its approach to the crossing, and'first saw the deceased on the track in front of the car just before it struck him. Mrs. Walker and Mrs. Motts were standing on the north side of Mill Street, waiting to take the car to go down town. They both testified that they saw the car approaching, and that they heard no bell or gong sounded, and that they saw Wolf crossing the street, and did not see him stop, but, on cross-examination, said that the first they saw of him was just before he was struck by the car. Mrs. Alter, who was standing near the door of her place of business, on the east side of First Street, about twenty feet south of its intersection with Mill, stated that she first saw the car about the middle of the block, coming from Montgomery toward Mill Street; that she saw Wolf crossing First Street on Mill, from west to east; that she heard no gong sounded, and the car was coming very fast; that she watched both Wolf and the car until the accident happened; and that Wolf walked straight across the street, without stopping. On cross-examination she testified that she was playing with a child at the time, and calling its attention to the approaching car; that she first saw Wolf coming from the west side of First Street, and did not see him stop until he was run into by the 'car. Ruvensky was on the west side of First Street, above Mill, going north. He testified that while he was going down the street the car passed him, and that he saw Wolf crossing Mill Street, and he did not stop; that he did not see him when the car struck him because he (witness) was on the other side of the street; that the car was running fast; and that he did not hear the bell or gong sounded. On cross-examination he said that he first saw Wolf when he was on the “first track.”

The evidence for the defendant consists of the testimony of passengers aboard the car, and of its operators. C. Grohs was a passenger on the car at the time of the accident, standing on the front platform, at the right of the motorman. He testified that when the car was about the middle of the block between Montgomery and Mill streets he saw Wolf on Mill; that the motorman immediately rang his bell and slacked up the car; that when Wolf reached the west track he stopped in the middle of it, apparently to let the car go by; that the motorman then loosened up the brake, and the car started ahead, but when it was within seven or eight feet of the crossing Wolf suddenly attempted to pass in front of it, when the motorman again applied the brake, but was unable to stop the car in tinrn to prevent the accident. J. R. Carswell, also a passenger on the car, was standing on the west side of the front platform. He testified that soon after the car passed Montgomery-Street he saw Wolf step from the sidewalk to the street, as though to cross to the east side; that the view was unobstructed, and there was nothing to prevent Wolf from seeing the car; that the motorman immediately rang his bell, slowed down the car, and ran within about twelve feet of the crossing, when Wolf stopped on the west track as if to let the car pass, and the motorman loosened the brake and started forward again; that about the same time Wolf started to cross in front of the car, and was struck by it, although the brakes-were immediately applied. Joseph S. Bier was standing on the rear step on the west side of the car. He testified that he saw Wolf crossing the street; that the motorman rang his bell and slowed down, and, when the car came near Mill Street, Wolf stopped and looked toward it; that the motorman then loosened the brake and let the car run down to the crossing, but the witness did not see the accident, his'view being obscured by the car. Mrs. Gardner and Mrs. Parks were in the car, and both testified that they heard the bell ring, and that the car slowed down; one of them even testifying that it actually stopped before it reached the crossing. B. W. Rose said that he was riding in the car, and that his attention was attracted by the sound of the bell, as it was rung in a quick, sharp manner, and the car checked up suddenly, but that he did not see Wolf. Frank Keller was standing on the .front platform of the car, but did not see Wolf at the time of the accident, because some one was standing in front of him. He testified that the gong was sounded several times, and the speed of the car slackened, before it reached Mill Street, and when it got within about ten feet of the street the motorman suddenly applied the brakes, and about the same time the witness heard some one call out, and then saw Wolf directly in front of the car.

• The motorman stated in his testimony that when about the middle of the block between Montgomery and Mill streets he saw Wolf going from the west to the east side of First; that witness immediately commenced ringing the bell and slowing the car down; that he continued to ring the bell and slacken the speed of the car until within about twenty-five or thirty feet of the crossing, when Wolf stopped in the middle of the west track, and the witness, supposing that he was intending to stand there until the car passed by, released the brake, and let the car roll down to the crossing at a speed of three or four miles an hour; that when within about ten feet of the crossing, Wolf suddenly started to pass rapidly in front of the car, when the witness immediately applied’ the brakes as tight as he could, but was unable to stop the car in time to prevent its striking Wolf; that from the time the car was about twenty or thirty feet from the crossing until ib reached a point about eight or ten feet from it Wolf was standing on the west track, and looking toward the car, there being nothing to obstruct his view; that in the middle of the block the car was running at a probable rate of eight or ten miles an hour, but before it reached the crossing it was slowed down to about three miles. The conductor did not see the accident, as he was inside the car, but he testified that he heard the gong, and that the car slowed down to three or four miles an hour, and that just before it reached the crossing he heard three or four sharp rings of the gong, and felt the car give a jar or lurch, as if the brakes had been suddenly set.

From the testimony on behalf of the defendant the conclusion is irresistible that Wolf saw the approaching car, and first thought that he would stop, and wait for it to go by, but probably concluded that he could safely pass in front of it, and in attempting to do so was struck and killed. And it is practically uncontradicted. All the witnesses for the plaintiff who testified on the subject, unless perhaps it was Mrs. Alter, stated they did not see Wolf until about the time he was struck by the car. Mrs. Alter testified through an interpreter. It is possible to argue from her testimony, as contained in the record, that she intended to say that she saw Wolf all the time after he started across the street until the accident occurred, but the physical conditions were such that it was impossible for her to have had him in view during the entire time. She was on the street south of the crossing, standing between it and the approaching car. She was pointing out the car to the child with whom she was- playing, so that her attention must have been more centered on it than on Wolf. It was impossible for her to see both the car and Wolf at the same time, since they were in opposite directions. Again, she was on the east side of the street, and the car must necessarily at some point have passed between her and Wolf, during which time her view was, of course, obstructed. It cannot be said, therefore, that her testimony materially contradicts the evidence for the defendant, or that it alone is sufficient to take the case to the jury, in view of the positive and overwhelming testimony to the contrary of persons whose attention was particularly attracted to the conditions at the time.

1. Where there is a substantial conflict in the testimony, or even where it is undisputed, but different inferences may reasonably be drawn from it, the question of negligence is always for the jury, and the court should not direct a verdict for defendant: Huber v. Miller, 41 Or. 103 (68 Pac. 400); Stager v. Troy Laundry Co. 41 Or. 141 (68 Pac. 405). But, where there is no substantial conflict, and only one inference can reasonably be deduced from the testimony, the question is one of law for the court, and, in our opinion, this is a case calling, for its application.

2. The deceased was crossing a public street, in broad daylight, at a place where his view was unobstructed. It was therefore his duty to look and listen for a car before crossing the track, and, if he did not, he was guilty of such contributory negligence as would preclude recovery (Smith v. City Railway Co. 29 Or. 539, 46 Pac. 136, 46 Pac. 780, 5 Am. & Eng. R. Cas. N. S. 163; McGee v. Consolidated St. Ry. Co. 102 Mich. 107, 60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507; Ward v. Rochester E. R. Co. 17 N. Y. Supp. 427; Watkins v. Union Traction Co. 194 Pa. 564, 45 Atl. 321), notwithstanding the defendant may have been negligent in running the car at a dangerous rate of speed: Sego v. Southern Pac. Co. 137 Cal. 405 (70 Pac. 279).

3. In addition to this, the'testimony shows that he saw the approaching car, and stopped when near the track, but afterwards concluded that he had time to pass safely in front of it. When he stopped, the motorman had a right to assume that he intended to wait until the car passed before crossing the track, and was not guilty of negligence in releasing his brakes at the time: Sanders v. Southern Elec. Ry. Co. 147 Mo. 411 (48 S. W. 855); Gray v. Fort Pitt Trac. Co. 198 Pa. 184 (47 Atl. 945). Under the evidence adduced, therefore, we are of the opinion that the unfortunate accident was not due to the negligence of the defendant, and the judgment must be reversed, and-the cause remanded for such further proceedings as may be deemed proper, not inconsistent with this opinion. Reversed. .

Decided 28 November, 1904.