Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-03

The motorman who was operating
the car going east on the last trip
prior to the injury was obliged to
leave the car at Thirty-third street.
in order to attend to a call of nature
S. NJ. Fleener, the conductor who had
charge of the car, thereupon acted
as motorman, going to Sixtieth
street, and when he was returning
on the north track plaintiff became
a passenger. She desired to alight
at Thirty-ninth street which crosses
Belmont at right angles, but being
unable to signal to Fleener she rose
and started forward to notify him
of her wishes. AS she was commun-
icating her request, standing within
the car with her left hand upon the
door jamb as her witnesses declared,
the car in its rapid flight struck the
curve in the track, causing it sud
denly to lurch. throwing several pas
sengers from their seats to the floor
and causing the plaintiff to fall into
the vestibule and off the car on the
north side of the track along which
she was dragged about go feet, strik-
ing an obstruction and inflictng the
injuries alleged to have been sus-
tanned.
1t will be remembered that one of
the grounds of negligence alleged in
the complaint is the incompetency Of
the defendants servant, who was act
ing as motorman and undertaking to
manage the car at the time of the
injury This averment was denied
in the answer, but no direct test
money was offered by the plaintiff
upon that issue. when she rested in
chief after having submitted her evil
dence. The defendants counsel
thereupon requested the court to
withdraw all further inquiry respect
ing such alleged incompetency, on
the ground of a failure of proof, but
the application was denied and an
exception allowed.
Fleener. as defendants witness,
testified that he had been in its en-
ploy two years and seven months as
a conductor. detailed the circum-
stances of the injury as alleged in
the answer, but was not interrogated
in chief, respecting his experience or
qualifications as motorman of cleo
trio cars. On cross examination this
witness. over objection and excep-
ton admitted that he was never en-
ployed by the defendant as motor
man in which branch of the service
he had not managed an electric car
for any length of time; that he had
occasionally taken to the barn a car
when a motormen accompanied him
and showed him how to manage II;
that this constituted all the expert
ence he had ever had in that line
of work: and that he had never acted
as a motorman at all prior to the
injury.
1t is argued that as Fleener had
not been interrogated in his direc'
examination in relation to his eXpe'
rience as motorman, the testimony
which he was compelled to give OF
cross examination on that subjec
was inadmissible and such being th'
case the court. in refusing to TAXI
from the consideration of the jur!
the question of his qualification Il
manage a car, committed an erro
which was not thereafter remediet
by any legal proof to substantiate IN
issue.
The question of ,ne admissibilit
of the testimony so received on eros
examination will be first considered
An adverse party may cross examin
a witness as to any matter stated !
. his direct examination or connecte
> Herewith. L. o. L. sec. $50. /
| constituting this clause Of the statut
: it has been held that If from th
direct examination Of witness th