Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-08

car the motorman would have been
justified in supposing that he would
halt before stepping upon the track.
To step from place of safety to a
place of imminent danger would re-
quire less than a second of time. A
car going at the rate of four miles an
hour would progress six feet in a
second of time. Had the motorman
observed that deceased was likely to
put himself in peril by attempting
to cross the track, it would have re-
quired at least a second or more of
time to stop the car. The testimony
of Buchler the only witness who ac-
tually saw deceased struck by the
care, indicates that when deceased
had reached the south rail of the
north track, the car was six or seven
feet away. Here for the first time de-
ceased was in a position of actual
danger or in a position that would
indicate to the motorman that he in
tended to cross the track ahead of the
car; and to say that he had time to
realize the peril deceased was in, and
apply the brakes and stop the car in
less than two seconds, and that he
was negligent in failing to do so,
wOuld ha unrea sonahla
The fact, if it be fact, that the
car had no headlight, can have no
bearing as the testimony shows that
the light was sufficient to enable a
person nearly block away to see
both deceased and the car.
Plaintiff, practically conceding the
negligence of deceased, contends that
the failure of defendants motorman
to stop the car for a considerable
distance (from 40 to 50 feet from
the place of collision, should entitle
plaintiff to recover upon the ''last
clear chance" rule.
1t is contended with some plausi-
bility that the jury might have found
that deceased came to his death, not
from the effect of the original COL
lision, but from subsequent injuries
inflicted after he was thrown under
the fender, and dragged to the place
where the car finally stopped We
find nothing in any phase of this case
that justifies the application of the
last clear chance" rule. 1t should
be borne in mind in the beginning
that he who admits negligence on his
own part and seeks to avoid it's con-
sequences has the burden of proof to
show, by the outweighing of the
testimony, that Notwithstanding such
negligence the circumstances were
such that the opposing person after
perceiving his peril, could by ordi-
nary care, have avoided injuring
him, We fail to find such proof in
this case. Conceding for the pur-
pose of the argument that defendant
was negligent in failing to slow it's
car or in failing to ring a gong, the
evidence shows that the negligence
of deceased was concurrent and con-
tinued to the very moment of the in
jury. Under such circumstances
plaintiff cannot recover: Drown V.
Northern Ohio Traction Co., 76 Ohio
2S4 10 L. R. A. (N S. 421; Dyerson
V, Union Pasific R. Co., IA Kan 52S; {;
Z L. R. A. IN. S. 1872; Halman V.
Southern Pac. c. R. Co. 81 Calf. 161.
Nor can the last clear chance
rule apply to the alleged negligence
of defendant in failing to stop it's car
more quickly after the collision oc-
Cured, The evidence is clear that
the death was the result of de-
ceased having been struck by the
car. Whether the whole injury hap
pened at the very moment of the col
! llSlOh VI parity CuSh anu pdIIly al
terward and before the car was
stopped, is a matter of mere con-
lecture. The whole accident was one
transaction and to attempt to cut it
into fragments it would have been
necessary to require the jury to de-
part from the realm of proof and
enter the domain of speculation !;
Rider v. Syracuse R. T, R. Co, III N.
Y. 139; Drown V. Northern Ohio
Traction Co., supra.
The contention that the defendant
was negligent in failing to have a
proper fender upon its cars cannot
be sustained. Sec. 1907 L. o. L. de-
scribes the character of tenders that
shall be used upon street cars in the
state of Oregon, but has this proviso: ::
provided, that whenever, in the judg
ment of the mayor and the members
of the common council a. 1t
shall be deemed for the best inter-
ests of the residents and inhabi-
tants of any such city or town to
substitute in lieu of the apron fen
der or guard, hereinbefore provided
for another approved design of
apron, fender, or guard said mayor
and said city council shall have such
right whenever there shall be en-