Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-03
OREGON SUPREME
COURT DECISIONS
CONTINUED from Page 81

the condition and appearance of per-
sons and things, and under such cir
cumstances as were detailed by Ad-
die E. Dickey may compare the rate
of speed and say that it was un-
usual.
Becker testified that the car was
going at a very fast rate and sway
ing from side to side as it was round
| ing the curve 1t does not appear,
| however, that he knew what was the
usual speed at the place of the acci-
dent or on that line of railway. The
pleadings admit that an ordinance of
Portland, In force when the injury
occurred, provided that the rate of
speed should not exceed II miles per
hour within the limits of the city. 1t
| Is possible that in testifying that the
speed of the cart a the time of the
accident was unusual Becker was
comparing the rate with that so lin
| tied, but however this may be, the
bill of exceptions is silent on that
subject From the number of wit
nesses who, without objection, testi-
| fed with respect to the rate of speed,
as hereinbefore disclosed, we cannot
see how the defendent was preju-
diced by the admission of Becker's
sworn declaration.
David Fisher, as plaintiffs witness,
having testified that he had been en-
! plOyed by the defendant as motor
man and in that capacity had oper-
ated it's cars on the line at Portland
Heights, answered hypothetical
question as to the distance in which
a car would have been stopped if
properly managed at the time and
place OF the injury, was asked on
cross examination. Were you not
discharged last summer for certain
reasons by the company" And he
replied mo, sir, | was not dis
charged"
In order to impeach such declara-
ton, Fred Cooper, the defendants
superintendent of transportation,
testified as follows: "Do you know
David Fisher who formerly worked
for you and ran on the Portland
Heights?" A. Yes, sir" @. Il will
ask you to state whether or not Mr..
David Fisher was discharged by this
company last summer, or when he
left?" A. "He was, yes" On cross ex-
animation Cooper was interrogated
and, over objection and exception,
testified as follows: How long had
he (referring to Fisher worked for
your" A. 1T was a little over two
years. | haven't got the exact date. +"
Q. "As a motorman?" A. "As a mo-
torman." Q. Worked on the
Heights cars" A. Yes"
An examination of the testimony
givn by Cooper in chief when com
pared with his cross examination
shows that the questions so objected
to either related to the matter stated
in his direct examination or were so
intimately connected Herewith that
no error was committed in requiring
this witness to answer the questions
so propOunded.
An exception having been taken to
the following part of the charge, it
is insisted that an error was COM
mitted in instructing the jury as fol-
lows: "The conductor of street
car, so far as the relation of the
company owning and operating the
car with its passengers is concerned,
represents the company, and if an in
jury results from the negligence of
the conductor, or from his wrongful
act in permitting the car to be run
without a sufficient number of per-
sons in charge of it, or in attempt
ing to run it himself, without suffi-
/ ni ng fnfn II.
stances, the company is liable in
damages for the injury sustained, un-
less the party injured is guilty of
contributory negligence, as defined to
you"
Instructions which are within the
issues and not essentially inappro-
pirate should be viewed in connec-
tion with the entire charge or with
such parts Of it as explain or modify
any ambiguous portion in order to de-
termine whether or not an erroneous
expression has been given to the law
applicable to the facts involved. In
the light of this rule attention is
called to the instruction immediate
! ly following that so complained of
to-wit: 1T is the duty of street
car company to provide, and keep in
charge of its cars, a sufficient num-
ber of competent persons to safely
and properly operate the cars, under
the particular circumstances of the
case. will qualify that with a suffici-
ent number of competent persons, and
will say that l do not wish to imply
that there must be two or more, as
If, in your judgment, one person is
sufficient for the car, that would
preclude the idea of negligence on
the part of the defendant. The way
this is worded 1t might appear that
1t was absolutely necessary that they
should have two. That is for you to
determine, under the particular cir
cumstances of the case, as to wheth-
er 1t was negligence to have one, and
not more than that" In another
part of the charge the court said: 81
will instruct you that the fact that
there was not both a conductor and a
motorman on defendants car on
which the plaintiff was a passenger
does not of itself establish negli-
gence on the part of the defendant
such as would render it liable in this
action, but you may take such fact
into consideration in connection with
all the facts and circumstances in
4