Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-14
Stewart '. Portland Ry. L. & p. Co.,
MnltnOmah County.

hODefI Il. stewart respondent v.
Portland Railway, Light & Power
Co., a corporation, appellant. Appeal
from the circuit court for Multno-
NAH county. The Hon. W. N. Gatens,
judge. Argued and submitted March
80, 1911. H. W. Strong (Edw. Men
denhall and Frank Motter, on brief)
for respondent. A. NJ. Dibble and
(Wilbur & Spencer, W. E. Farrell on
brief) for Appellant. Mcbride, j.
Reversed and new trial granted.
This is an action to recover dam
ages for an injury inflicted by a
street car on defendants railway
colliding with an express wagon
owned and driven by plaintiff, where
by the wagon was broken, one of
plaintiffs horses killed, and plaintiff
wounded and bruised. The evidence
introduced by plaintiff tended to
show that he was driving north on
East 18th street in the City of Port
land, and that when at or about the
intersection Of East 18th street with
East Morrison street, he saw two
men at the northeast corner of East
18th and E. Morrison streets, stand
ing near defendants track. as per-
sons usually do when they intend to
take car; and that about the same
time he saw the car approaching
from the east, about 80 or 55 feet
distant. Assuming that the car
would stop for them he did not
slacken his speed but continued on
across the track and was struck, re-
sulting in the injuries. Plaintiff was
driving in a slow trot. There was
evidence tending to show that the
car was being run at speed Of Is
or 20 miles an hour, the maximum
speed permitted by city ordinances
being 12 miles an hour. The an
swer denied negligence on the part
of defendant and charged plaintiff
with contributory negligence in fail
ing to look or listen for the ap-
preaching car and in recklessly
driving upon the track.
Among other instructions the
court gave the following, which were
excepted to:
"IV. If you find from the evidence
that the defendant was negligent in
some particular that has been
charged in the complaint, that is the
street railway company, which con-
tributed to the injury, but that the
plaintiff was also negligent in
manner contributing to the injury;
that is, both parties being equally
negligent, there can be no recovery.
"V. 1t is the duty of driver who
is about to cross the street railway
track to look and listen before at
tempting to cross, to see whether a
car is approaching, and whether it is
safe for him to attempt to cross;
unless there is something in the cir
cumstances of the case or in his sur
roundings which excuses him; and if
he fails to look or listen before at
tempting to cross, and such failure
materially contributes to the result
ing collision, if any, and thereby the
driver or his property is injured, he
is guilty of contributory negligence.
"VI. If you find from the evidence
that the plaintiff drove on to defend
ants track without looking or listen
ing to see whether car was ap-
preaching, and that by reason of his
failure to look and listen, he drove
on to the track in front of an ap-
preaching car and was injured, he is
guilty of contributory negligence
and recovery would be forfeited
NOlllolOll ny luC CACASloC VI
care and promptness, or that the
plaintiff had right to assume from
the appearance of the two men on the
cross-walk that the car would stop
to take them on"
The defendant also asked for the
following instruction which was re-
fused;
ut is claimed in this case that the
defendant was violating the speed or
dinance at the time of this accident,
to-wit: going more than 12 miles an
hour, You are to judge from all of
the evidence at what rate the car
was going at the time of the acci-
dent, but l instruct you that even if
the car was exceeding the speed
y