Daily capital journal. (Salem, Oregon) 1903-1919, 1911-09-22
SUPREME COURT PASSES
ON SEVERAL SMALL CASES
OREGON SUPREME COURT DECISIONS
Pull Text Published by Courtesy F. Turner Reporter the
Supreme Court

Pointer '. Klamath Falls Land &
Transportation Co., klamath COun.
ty.
H. E. Pointer. respondent, V. Kla-
math Falls Land and Transportation
Company appellant Appeal from
the circuit court for klamath county.
The Hon George holland, Judge. Ar
gued and submitted July q, 1911.
Richard Shore Smith and (HOrace NJ
Manning on brief) for respondent. j.
]. Barrett, and (Thomas Drake and
Benson e. Stone on brieD for appel
liant. Mcbride, j. Reversed and new
trial ordered.
Mcbride, j. The defendant had
constructed a street railway in Kla-
math Falls, and plaintiff, while driv-
ing wagon heavily loaded with lum-
Der along one of the streets, found
II necessary to make a turn and in
doing so ran against rail that pro-
jected above the surface of the street,
and he was thrown from his wagon
and seriously injured. Plaintiff
claims that the injury resulted from
the careless and negligent manner in
which the rails were left projecting
above the surface of the street,
whereas the ordinance granting the
franchise required that the rails
should be maintained flush with the
pavement.
Defendant pleaded, among other
defense, contributory negligence on
plaintiffs part, and upon the trial
laid particular stress upon the fact
that plaintiff was standing on the
load instead of sitting, and called
several witnesses, who claimed to be
experienced drivers, to show that un-
der the circumstances the usual cor
rect and customary position while
driving was to sit on the load. Plain
tiff called several witnesses and,
over the objection OF defendant, pro-
pounded substantially the following
question: I'm handling four horses,
would you consider II careless to
stand on a load of lumber and drive
them In coming up an incline and
making turn?" And also this uues-
tion: Would you consider II care
less, reckless or negligent to stand
upon wagon loaded with lumber,
upon which there Is no seat, driving
four horses up a street with an in
cline and making n turn? Both these
questions were answered in the mega
tive and defendant appeals.
We are inclined to think THAT the
testimony OF skilled drivers as to the
proper and customary position of a
driver, under the circumstances de-
tailed, is admissible: but the question
went further than that and practical
ly required the witness to give an
opinion upon the ultimate fact Co be
decided by the jury, namely the fact
OF plaintiffs negligence, This was a
usurpation OF the functions of the
Jury and was reversible error.
The Issue of negligence can in
most cases be determine by the judg-
ment of jury and the inference
conclusion, or judgment of witnesses
Is rejected. This rule has been ap-
pued, for example, to the question
whether bridge, road, roadway.
sidewalk, track or other place. ma
chinery mechanical appllnncn. rate
OF speed situation, or other thing or
collection or combination OF things Is
safe or dangerous The rule has also
been applied to the question whether
certain conduct Of person was care
ful or careless. And II has also been
applied to other questions as to CON
duct; as whether II was cautious.
dangerous, In the line Of duty. nee
essary negligent proper, prudent,
reasonable, professionally skilful.
safe, usual, or unusual" II Cyc. 56
ct seq and cases there cited. While
not following the rule to the extent
Indicated in the text of the excerpt
above quoted and not indorsing all
that Is held In the cases cited in the
text we think II reasonably well set
tied that where either negligence,
reoklessness or carelessness. consti-
tute the ultimate fact for the Jury to
decide, that II is not competent for
an expert witness to express an
opinion upon that ultimate fact, but
he can only go so far as to state the
usual customary method Of doing an
act or state from his experience the |
dangers ~ nnN nttnnhanN ,,nnp l,t.,..