Daily capital journal., April 11, 1911, Page PAGE TWO, Image 2

fAGE TWO
the capital journal
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FULL LEASED WIRE TELEGRAPH
OREGON SUPREME
Foil Text Published by Courtesy of
Supreme
lane T. Portland By. light & Power
Co., Multnomah County.
Isaac Lane, appellant, v. Portland
Ry. Light & Power Co., a corpora
tion, respondent. Appeal from the
circuit court of Multnomah county.
The Hon. C. U. Gantenbeln, Judge.
Argued and submitted March 16,
1911. D. C. Latourette, (C. D. & D.
C. Latourette on the brief), attor
neys for appellant S. C. Spencer,
"(Wilbur & Spencer, on the brief),
attorneys for respondent. Bean, J.
Reversed. , ,r. . i-r . i
" This la an faction to recover dam
ages for alleged injury to the per
son and property of plaintiff, result
lng from the collision of defendant's
electric car with his team and wa
gon on November 19, 1908, la the
City of Portland, ocurring on Grand
avenue, near its Intersection with
Hawthorne avenue, upon which
street running north and south, de
fendant maintains two parallel street
car tracks.
At the time of the casualty a north
bound car was standing on the east
track, a short; distance north of the
north line of Hawthorne avenue.
Plaintiff alleges that he was travel
ling north on the easterly side of
Grand avenue; that the space be
tween the standing car and the east
curb of the street was occupied and
blocked by teams and wagons, pre
venting his passage on that side, so
that In order to proceed he was com
pelled to cross over to the west side
of the street, passing the rear end of
defendant's standing car, and that
while he was In the act of so doing
his view was necessarily obstructed
' by such car, so that he was prevent
ed from seeing a south-bound car,
which was approaching "at a high,
and dangerous rate of speed along
defendant's westerly track of said
avenue, and the defendant, by Its of
ficers, agents and motorman on said
car No. 356 without warning, negli
gently, carelessly and heedlessly
ran said car No. 356 nt such Bpeed
Into and upon the wagon of this
plaintiff In which he was riding,
thereby colliding with the plaintiff's
wagon and thereby throwing plaintiff
out of the seat of said wagon and up
turning the same," cunning Injury to
plaintiff and his wagon nnd team.
That defendant, by its agentB on said
car could nnd should have seen
plaintiff's team emerging from be
hind Its standing car In time to have
"slowed up" and stopped Its car, and
so prevented the collision and the re
sultant Injury to plaintiff, but that
defendant, disregarding plaintiff's
rights, failed and neglected to "slow
up," and, without fault on the part of
plaintiff, collided with his team and
vehicle to his damage.
Defendant, by Its ansyer, denies
the material allegations of the com
plaint, end by Its first separate an
swer, after describing the accident,
alleges that plaintiff suddenly and
unexpectedly, without any warning,
drove his team and wagon from out
behind the standing north-bound car
and immediately In front of and Into
said south-bound car, before the lat
ter could be stopped, although due
care and diligence in that behalf was
exercised, the collision ensuing, and
that said accident was wholly un
avoidable, and without negligence on
the part of defendant. By Its second
separate answer defendant alleges
contributory negligence on the part
of plaintiff as the approximate cause
of the injury complained of, in that
he failed to look or listen for a car
approaching on the west car track,
and, without exercising any precau
tion for his own safety, suddenly
and unexpectedly drove his team
from behind the standing north
bound car directly In front of the
south-bound car, so that before the
latter car could be stopped, although
duo care and diligence In that behalf
was exercised, the collision occurred.
The reply put in Issue the new mat
ter contained In the answer.
Upon a Jury being empaneled and
sworn to try the cause, plaintiff's
counsel made his opening statement,
which appears In full tn the record.
After narrating to the Jury some of
the facts and circumstances sur
rounding the accident, what the
T) f Then why rest contented with
Jjg JrrOUCl thin, scray, rough hair? AVer's
I lair Vigor gives softness and rich
ness to the hair, makes it thicker, heavier. Cannot change
the color. Safe to u;-e? Ask vour own doctor. f C.V'v
REPORT
COURT DECISIONS
F. A. Torner, Reporter of the
Court
plaintiff would prove by his evidence,
and the alleged grounds of the negli
gence upon which he relied, he,
among other things, stated: "It
wll appear, I think, from the evi
dence that he was unable to see
north through this obstruction; In
other words through this car that
was standing there, and while he
was making the crossing, this car of
the defendant came In a south direc
tion on the westerly track In front
of the Drown building, and when he
did see the car why he whipped up
his horses and got pretty near across
the track, but the car was coming at
a very rapid rate of speed too rapid
I don't know what the rate of
speed, will appear In evidence here.
The approach of the car was
of such a character that the plaintiff
here was not able to see, or not able
to hear; and no gong sounded, or
bell rung, no warning given, and the
rate of speed was excessive." The
Court: "You ay the plaintiff was
not able to see the car, and was not
able to hear It?" Counsel, proceed
ing: "The plaintiff was not able to
see the car, and was not abl e to hear
It. Now, I will read the
complaint, which, perhaps, states
more fully the facts." And, after
reading the complaint in full: '"Now,
gentlemen of the Jury, the testimony
will show you, I think, about this
state of facts. This Is the
complalut here, gentlemen of the
Jury, and we expect that the testi
mony will establish these facts."
Thereupon defendant, by Its attorney,
made Its opening statement to the
Jury. Upon plaintiff being called
and sworn as a witness In his own
bohalf, defendant's counsel, based
upon the opening statement of plain
tiff's attorney to the jury, and upon
j the pleadings In the case, objected to
the Introduction of any evidence,
nnd moved the court for an order
dismissing the action.
The court rendered Judgment In
I favor of the defendant on the plead
i ings and opening statement, from
which plaintiff appeals.
Dean, J.: The Btate of this state,
I L. O. L Sec. 132, provides that when
the jury has been empaneled and
sworn "the plaintiff shall state brlef
i ly his cause of action, and the Issue
to be tried; the defendant shall then
In like manner state his defense."
This statement is the privilege of the
attorney for each party. If he sees
fit to exercise it, and Is obviously In
tended to advise the jury, concern
ing the questions of fact Involved, in
order to prepare their minds for the
evldenco to be heard, but is not In
tended to take the place of a com
plaint or other pleading, and how
full It shall be, within reasonable
bounds, is left to the attorney's dis
cretion. To relate the testimony at
length will not be tolerated. I.
Thompson on Trials, Sec. 267. As
we understand the record In this
case counsel for plaintiff read the
complaint, and in effect stated that
he expected the evidence to prove
the facts therein alleged; therefore
the only question to be determined by
the court Is whether or not the com
plaint states the cause of action.
This was practically conceded by the
defendant when It filed Its answer;
moreover If defendant had the right
and desired to take advantage of
counsel's statement for plaintiff, the
better time would have been at the
close of such statement, before plain
tiff was called to the witness stand,
and before defendant's counsel made
his opening remarks to the Jury.
Assuming the statement of plaintiff's
counsel to be fatally defective, we
seriously question If the right to rely
on such defect was not waived by
defendant's failure to make a timely
motion. We do not consider It a safe
practice to decide a case upon the
opening statement of counsel to the
Jury, that such a procedure is con
ducive to the rights of litigants, or
that there Is great necessity for ex
orcising this power except In cases
where It unlmstakably appears that
the action Is based upon a contract
prohibited by morality or public pol
icy. In Oscanyan v. Winchester
Arms Co., 103 U. S.. 261, the state
ment disclosed that action was
brought upon a contract for com
missions on sale of arms to Turkey,
of which government plaintiff was
then consul general at the port of
New. York, and the contract as void,
being corrupt and prohibited by mor
ality and public policy. Mr. Justice
Field, in his opinion on this case, at
page 264 says. In substance, that if
It should appear from the opening
statement that the action Is brought
to obtain remuneration for acts which
the law declares to be corrupt, im
moral, or criminal, after full consid
eration and ample opportunity for
the party making the statement to
explain and qualify It, if then It clear
ly appears that there can be no re
covery, the court should not hesi
tate to so declare: In I'ietsch v.
Pietsch, Cent. Law Jou. of .ug. 5,
1910, Vol. 71, 81, a suit in forcible
detainer for the possession of a lot
In Chicago, begun In the municipal!
eourt of that city, based upon the
statement of counsel for defendant,
admitting the legal title of the lot to
be in plaintiff, the court instructed
the Jury to render a verdict in favor
of the plaintiff. The appellate court
for the first district affirmed the
judgment, and the supreme court of
Illinois, In reversing the case, on this
point said: "A party Is entitled to
Introduce evidence and prove a cause
of action or to defend against evi
dence tending to sustain a cause ,of
action It no-statement at all Is made,
and Is not confined in the introduc
tion of evidence to the statement
made In the opening, if one is made.
The opening statment may be wrong
as to some facts of the case, which
may turn out to be different from
the statement." Also In Fletcher v.
London & Northwestern Ry. Co., 65
L. T. R., 605, an English case for
personal Injuries, where the trial
judge nonsuited the plaintiff, for the
reason that the opening statement of
his counsel did not show a cause of
action, It was held that the Judge had
no right to so non-suit plaintiff, ex
cept by the consent of his counsel.
The practice of granting a non
suit, much less the dismissing of the
complaint on the opening statement
has never prevailed in Wisconsin,
and in Haley v. Western Transit Co.,
76 Wis., 344, and cases there cited)
was not permitted, even though the
counsel consented that such state
ment should be considered in con
nection with the complaint, and
treated as a part thereof, but In Kan
sas such practice appears to have
been sanctioned In LIndley v. A. T.
& S. F. Ry. Co., 47 Kan., 432.
As we understand the record In
this case, and the claim of counsel
for defendant, the ruling was based
principally upon the statement of
plaintiff's counsel that plaintiff was
"not able to see the car, not able to
hear it." Very naturally counsel for
defendant applies this statement as
referring to the time before plaintiff
crossed the tracks. By reference to
the direct allegation in the com -
plaint, that it was "while plaintiff
was In the act of making such crossT
lng with his team and light wagon
before mentioned, his view was nec
essarily obstructed by defendant's
aforesaid standing car so as to pre
vent his observation of another of
defendant's cars," and the statement
of plaintiff's counsel, to the effect
that plaintiff was unable to see
through this obstruction, it would
seen that counsel for plaintiff had
in mind the time when plaintiff was
crossing the east track behind the)
standing car. We do not understand
that either the complaint or the
statement of plaintiff's attorney In
dicates how far, or what plaintiff
could or could not see or hear before
the time of crossing the tracks.
This case Illustrates the danger of
deciding an issue upon so meager a
showing of the facts. Donohoe v.
Portland Ry. L. & P. Co., 107 Pac,
964, disposes of the point In regard
to looking and listening adversely to
defendant, where, tn the language
used by Mr. Justice Slater, 'it has
also been held by this court that al
though it Is negligence for the trav
eler not to look or listen for ap
proaching trains before attempting
to cross a railway track, the law
does not undertake to determine
whether' he shall do so at any par
ticular place or given distance from
the crossing. It is only required
that he shall look and listen at the
time and place necessary In the ex
ercise of ordinary care, and this Is
generally a question for the jury un
der all the circumstances of the par
ticular case."
We do not deem It opportune to
discuss this at length, although sev
eral questions that may possibly
arise are ably presented by the
briefs of the respective counsel. In
our opinion the case should be tried.
The Judgment of the lower court Is
accordingly reversed, and the cause
remanded for trial.
Burnett, J.: I concur In the re
sult I
Every family and especially those
who reside In the country should be
provided at all times with a bottle of
Chamberlain's Liniment There Is no
telling when It may be wanted In case
of an accident or emergency. It Is
most excellent In all cases of rheu
matism, sprains and bruises. Sold
by all dealers.
Get It at Dr. Stone's Drug Store.
o
With a clear sky and a clear con
science a man may be fairly happy.
CELEBRATE
THE GOLDEN
WEDDING
FIVE GENERATIONS OF THE JJAR
NETT FAMILY GATHER AT THE
HOME OF MR. AND MRS. JOHN'
HARNETT, AT TURNER.
Mr. and Mrs. John J. Barnett, of
Turner, were surprised on the event
of their golden anniversary, when
the guests came with their well filled
baskets and happy greetings to the
nost and hostess who have lived to-
gather for 50 years.
Of their 13 children, seven are
living. Mr. Barnett was born In
Canada September 24, 1828, living In
New York until of age. Starting out
for himself he went to Iowa, where
he married Temperance F. Pearce on
April 1, 1861.
Mrs. Barnett was born in Indiana
In 1843. In 1877 the couple moved
to Turner and1 have lived here since.
Mr. Barnett, the oldest of a family of
13, has two brothers living In New
York and two in California. . Mrs.
Barnett, the oldest of eight children,
has living one brother, one sister and
a mother, who Is now over 88 years
old. They all reside In Turner.
Mr. and Mrs. Barnett have 20
grandchildren and three great-grandchildren.
Five generations were rep
resented. This was the occasion of a
double anniversary. Their son, H
M. Barnett, with his wife, whose
maiden name was Mary Todd, also
observed1 their wooden wedding an
niversary. , , ,,-;
,..,.,
SHE BROKE DOWN ENTIRELY
Lantz, W. Va., Mrs. Tebe Talbott, of
this place, says, "I had been troubled
with womanly ailments for some
time, and at last I broke down entire
ly. I got so weak I could scarcely
walk across the room. Thanks to
Cardul, I Improved right off. Now I
do my housework, and am feeling
well." During the past 50 years,
more than a million women have been
benefited by taking Cardul. You must
believe that Cardul will help you, too,
since It helped all these others. Car-
! dul Is a safe, harmless, vegetable rem
edy, of positive, curative merit, for
women. At drug stores. Try one
bottle. It will surely help you.
o
Alerts Awful Tragedy,
Timely advice given Mrs. C. WI1
loughby, of Marengo, Wis., (R. No. 1)
prevented a dreadful tragedy and
saved two lives. Doctors had said
her frightful cough was a "consump
tion" cough and could do little to
1 help her. After many remedies
failed, her aunt urged her to take Dr.
King's New Discovery. "I have been
using It for some time," she wrote,
"and the awful cougti has almost
gone. It also saved my little boy
when taken with a severe bronchial
trouble." This matchless medicine
has no equal for throat and lung
troubles. Price 50 cents and $1.00.
Trial botle free. Guaranteed by J.
C. Perry.
A Reliable P
CATARRH
Remedy
Ely's Cream Balm
it quickly absorbed.
Gives RoJiel at Once.
It cleanses, soothes,
heals nud protects
the dise;isu mem
bruuert'su! imp; from
Catarrh and drives
away a Cold ia the
r jx iff i
Head qnuklv. He-II A V WMEIi
stores the fcenses of liH I I L. f bit
Taste and Smell. Full size 50 ct. , at Drug
gists or by mail. Ia liquid form, 75 cents.
Ely Brothers. 5i Wnrren Street. New York.
CASTOR I A
For Infants and Children.
The Kind You Have Always Bought
Bears the.
Signature of
Get It at Dr. Stone's Drug Store
THE BEST !
STRONGEST AND MOST
DURABLE SEWER
l PIPE MANUFACTURED
j S8 CEMENT
X MADE X
i GLAZED
I SEWER PIPE
It will pay you to inves- j
t vestigate before placing
your order tor sewer
Connections. " '
Salem Sewer Pipe Co. :
263 LIBERTY STREET f
WW'
WILL HAVE A STADIUM
AT WILLAMETTE
Dr. Sweetland is making use of the
bad weather at the University by hav
ing some of the students fix up the
old nursery building, which has been
lately used for religious meetings, in
to a stadium. The building Is large
enough to make an excellent Indoor
track of not more than 10 or 12 laps
to the mile and will also furnish a
place for indoor baseball. The dirt
floor will allow high jumping, pole
vaulting, shot putting and in fact all
track events to be indulged In during
the entire winter.
The renovating of the building and
converting of It lntoa stadium will
be a great thing for the university,
In an athletic way, since It will bring
many students who are Interested In
track work to the 'varsity, besides
the condition It will tend to keep the
present track men In during the win
ter. ' 1 " '
The rain has greatly improved
the baseball diamond. It is firmly
packed, and will probably be as
smooth as any In a weelj or two.
Diarrhoea should be cured without
loss of time and by a medicine which
like Chamberlain's Colic Cholera and
Diarrhoea Remedy not only cures
promptly but produces no unpleas
ant after effects. It never falls and
Is pleasant and safe to take. Sold by
all dealers.
Get It at Dr. Stone's Drug Store.
Bids for Heating Plant.
Sealed proposals will be received
at the office of H. A. Johnson, Jr.,
clerk of school district No. 24, Sa.
lem, Oregon, until 7:30 o'clock p.,m.
on the 15th day of April, 1911, and
then opened at the regular meeting
of the board at the high school
building, for the Installation of a
heating and ventilating plant In the
proposed enlarged high school build
ing. Plans and specifications to be
furnished by the bidders as per re
quirements of the architect, which
can be had upon application to Arch
itect F. A. Legg, at Salem, Oregon.
Bids to be with and without ther
mostatic control.
Certified check for 10 per cent of
amount of bid to accompany each
bid.
Board reserves the right to reject
any or all bids.
H. A. JOHNSON, Clerk.
4-10-3t
How ef.sy to bear the burdens of
others In comparison with our own
Prompt relief In all cases of throat
and lung trouble If you use Chamber
Iain's Cough Remedy. Pleasant to
take, soothing and healing In efflect
Sold by all dealers.
4 . r
I f j.pifWmHHHmiWl J
Celebrated Lenr FWmrw
The Best Heater
It will save you in ey every day yo
jwn It. I .ell ni a nstal' the beit.
:.et me give you figures.
See Me
About an Individual lighting plant
or your home. The best thing ii
i he market for uxiklng and Ughtlnr
A. L. Frasier
Phone 135. 2fi. htat Htret
FAIB GROOD FEED AXD
i SRtCEET
I 5 gal. Kerosene (bring can)
t C5c
Extra choice Sugar Cured,
government inspected Hams,
per lb 18c
Extra laige meaty Plck-Nlck
Hams. . 14 He
5 lbs. pure Lard 75c
Best Valley Flour, sack... $1.20
Best Eastern Oregon Blue
ct.m trim... at or
. uiviii flMtJ
Choice heavy Bacon, lb 17c
11 lbs. White Beans 50c
X 5 1-lb. pkg. Corn Starch.... 25c
5 cans nice Table Peaches. 50c
Garden Seeds
t 3 large full size 5c pkgs 10c
f 2 large full size 10c pkg... 15c
J 10-lb. sk. best Eastern Corn-
1 meal 25c
2 lbs. best Cream Cheese... 35c
f 3 cans Buttercup Milk 25c
X 60 lbs. full welpht Bran. ..-.80c
X Shorts per sack $1 .20
Telephone Orders promptly
t delivered.
t Give me a' trial for I can
f save you money.
I R.N. MORRIS i
Phone 1497.
Wk ' 11 1
fcg J, rmmlfyX
I
repress.
DR. KING'S
W DISCOVERY
FOR '
COUGHS AND COLDS
WHOOPING COUGH
AND ALL TROUBLES OF
THROAT AND LUNGS
PROMPT USE WILL OFTEN PREVENT
PNEUMONIA AND CONSUMPTION
PRICE 50c and $1.00 SOLD AND GUARANTEED BY
J. C. PEBRT.
Gives Aid to Strikers.
Sometimes liver, kidney and bowels
seem to go on a strike and refuse to
work right Then you need those
pleasant little, strike-breakers Dr.
King's New Life Pills to give them
natural aid and gently compel prop
er action. Excellent health soon fol
lows. Try them, 25c at J. C. Perry's,
Druggist
Cleanj up the back yards so that
they may be a thing of beauty and a
Joy forever.
Children Jry
FOR FLETCHER'S
C ASTORIA
(Jet it at Dr. Stone's Drug Store
ountain view
i
On South Commercial St. Car Line
HAS NO EQUAL ON THE
MARKET IN THIS CITY
The owners are not afraid to Put a price
on the Property and Maintain it, and feel
that their Property will bear your clos
est Investigation.
You are Offered High Class
Property in Mountain View
Any real estate man will tell you that Mountain View Is the very
cream' of Salem property, that It has the soil, the trees, the view
and the location where property Is advancing all along the line.
Now Is the time for. you to Pick a home on this most desirable of
all tracts ever put on the market, and you can get terms that will
be easy for any one wanting a desirable home Bite. Those who have
bought lots are all holding for advances, and especially the lots
fronting on Commercial street, where a 15-mlnute car service has
been ordered on, will double, in value In les-i time than any lots
now offered fo- sale In this city.
In the Orchard Bloom
As the days 'of the orchard bloom come along that Sam Simpson
wrote about certain parts of the city begin to attract attention
for their beauty, and most beautiful of them all Is Mountain View.
There you are not only In the midst of orchards, but there are
orchards for miles to the south, and the perfumed air that comes
over the Coast Mountains from the grand old Pacific ocean is laden
with the smell of a million flowers on the fr It tracts toward Lib
erty, Rosedale and Sunnyslde.
The Scenery Grand
The grandeur of the mountain scenXry from every lot in this
tract mu9t be seen to be understood, and Sunday, if the weather is
line there will be hundreds going up there again and taking in the
sights that extend to the i,tu.ade range on the east, and snow
peaks like Hood, Jefferson, Adams and St. Helens. The whole val
ley spreads at your feet with the city and state institutions in the
foreground.
Lprge Home Tracts
The lots la Mountain View, excepting those right on Commercia
street, are from two to four times the size of the ordinary lots sol .
and each lot has choice fruit trees In full bearing, or small fru .
and all the lots are in perfect cultivation, having natural dra j
age, and rich garden soil, without rocks or stumps. The soil is
worn out farm land, but has been kept up In the highest gar e
tillage. , er
We are ready to take intending home buyers ovt to this prop
ty and show them Just what It Is. . . ntv
Mountain View Is outside of the city limits, and is J
property of high residence class still left unsold on South
mercial street that commands the beautiful views to the ea . I
E. HOFER & SONS
201 U.S.Nat.Bk.Bldg. Pho"LJ
OFTEN
MAKES
A
FOR
THE CURE
THAT'S SURE
Do Ghosts Haunt Swamps!
No, never. It's foolish to fear g
fancied evil, when there are real and
deadly perils to guard against in
swamps and marshes, bayous, and
lowlands. These are the malaria
germs, that cause ague, chills and
fever, weakness, aches -in the bones
and muscles and may induce deadly
typhoid. But Electric Bitters de
stroys and casts out these vicloua
germs from the blood. "Three bot
tles drove all the malaria from my
system," wrote Wm. Fretwell, of Lu
cama, N. C, "and I've had fine health
ever since." Use this safe, sure rem
edy only, 50 cents at J. C. Perry's.
Druggist.
. o r;;
Try a Journal Warn Ad. --
SAY NOTHING BIT SAW MEAT
Just off the part you desire. That
is the way we do It at this market.
Don't cut off too much to make sales
.bigger, either. We don't have to.
Most people who taste our meat the
first time are sorry they didn't order
a bigger piece. Suppose you see !f It
has that effect on your appetite.
E. C. CROSS &ISON
Phone 1880
t