Stewart v. Portland Ry. L. & P. Co.

delivered the opinion of the court.

1. The first error assigned is the refusal of the court to direct a nonsuit at the close of plaintiff’s evidence. It is claimed that the negligence of plaintiff in attempting to drive across the track in front of the car was so clearly demonstrated by his own testimony as to preclude a recovery. His testimony, which is corroborated, tends to show that two persons were near the track in the position usually taken by persons desiring to board a car, and one of them testifies that he was there with the intention of boarding this very car. The refusal to grant the nonsuit was not error. It was for the jury to say whether, under these circumstances, it was negligence on the part of plaintiff to assume that the defendant’s servants would perform their duty to the public by stopping to take on these passengers, and, acting upon that assumption, to continue his way across the track. It is evident that, if the car had stopped for the purpose indicated, plaintiff would have crossed in safety.

2. The court erred in giving the instruction first quoted.

3. It suggests the doctrine of comparative negligence, which is not the law in this State. The second instruction is also faulty in the same respect. It attempts to apportion the relative negligence of the parties. The words “if such failure materially contributes to the resulting collision” are misleading, and not a correct statement of the law: Hurst v. Burnside, 12 Or. 532 *381(8 Pac. 888); Root v. Des Moines Ry. Co., 122 Iowa 469 (98 N. W. 291). The other instructions quoted proceed upon the same theory that plaintiff could have been guilty of some degree of negligence, contributing to his injury, and yet recover. There is nothing in the pleadings, nor in the proof, to justify this position.

4. In order to invoke the “last clear chance doctrine,” plaintiff must plead and prove that defendant, after perceiving the danger and in time to avoid it, negligently failed to do so: Drown v. Northern Ohio Traction Co., 76 Ohio St. 234 (81 N. E. 327: 10 L. R. A. (N. S.) 421: 118 Am. St. Rep. 844). The evidence in this case shows that the plaintiff, probably assuming that the car would stop at the crossing in the customary way to take on the two intending passengers, drove suddenly upon the track, and that whatever may have been defendant’s negligence in regard to excessive speed prior to that moment, there was not time to stop the car after his danger had been perceived. The instruction requested by defendant, above quoted, should have been given.

5. In Peterson v. Standard Oil Co., 55 Or. 511 (106 Pac. 337), we held that the violation of a State statute prescribing a certain degree of care for the protection of the public was negligence per se, but we there intimated that such a construction should not be placed upon the mere by-laws of a municipal corporation. The violation of such ordinances is mere evidence of negligence, and such for a long period has been the holding in this State: Beck v. Vancouver Ry. Co., 25 Or. 40 (34 Pac. 753).

Judgment of the circuit court is reversed, and a new trial granted. Reversed.