Opinion
Argued March 25, 1931
Affirmed April 21, 1931 Rehearing denied June 2, 1931
Appeal from Circuit Court, Multnomah County, ROBERT TUCKER, Judge.
Action by R.J. Kirkley against Portland Electric Power Company. Judgment for plaintiff, and defendant appeals.
AFFIRMED. REHEARING DENIED.
Cassius R. Peck, of Portland (Griffith, Peck Coke, of Portland, on the brief), for appellant.
Nicolas Jaureguy, of Portland (Cake, Cake, Jaureguy Tooze, of Portland, on the brief), for respondent.
On the night of December 31, 1927, heavy snow and sleet were falling throughout the city of Portland, in which city defendant operates a street-car system. At approximately two o'clock in the morning on January 1, 1928, plaintiff in an automobile, owned and controlled by him, was riding on East Hawthorne street in the vicinity of East 39th street. Plaintiff's car was being driven easterly by Mrs. R.B. Runyon in a path along the track of defendant's street railway, which had been cleared of snow by means of a snowplow. Plaintiff was in the front seat to the right of the driver with his face near to the upper part of the windshield the better to enable him to see through the windshield, the lower portion of which was covered with sleet. Plaintiff's wife and the driver's husband were in the rear seat. Defendant's snowplow was facing in an easterly direction and had stopped because another automobile was in the way of one of the side wings of the plow. While the snowplow was thus stationary, plaintiff's car collided with it. Plaintiff's head was thrown through the windshield of his car, and as a result plaintiff's head and face were cut and bruised in such a manner as to necessitate the removal of his right eye.
On the 22d day of April, 1929, plaintiff instituted this action to recover damages for the injuries he thus sustained.
The answer of defendant, by appropriate denials, joins issue upon plaintiff's charges of negligence, and as an affirmative defense, after alleging that plaintiff and the driver of plaintiff's car were engaged in a joint enterprise, alleges:
"That said collision and any resulting injuries and damages to the plaintiff, were proximately caused by the negligence of the plaintiff, in that:
"1. He failed to maintain a reasonable lookout for said snowplow.
"2. He failed to warn and advise the driver of said automobile of the location of said snowplow.
"3. He failed to protest against the reckless and careless operation of said automobile at an excessive rate of speed under the circumstances there attendant.
"4. He failed to protest against the operation of said automobile with the windshield so covered with sleet, ice and snow that the view of the driver was so obscured that it made operation of said automobile extremely dangerous.
"5. He failed to exercise such reasonable care in his self-protection as would ordinarily have been expected from a reasonably prudent occupant of an automobile under the circumstances there attendant.
"That said collision and any resulting injuries and damages to the plaintiff was, and were, proximately caused by the negligence of the driver of said automobile which was imputed to the plaintiff as hereinbefore alleged, in this, to wit: "1. She failed to maintain a reasonable lookout for obstructions in said street and in the pathway of said automobile.
"2. She drove said automobile at an excessive, dangerous, reckless, careless and negligent rate of speed under the circumstances there attendant.
"3. She drove said automobile with the windshield thereof so covered by sleet, ice and snow as to obscure her vision through said windshield.
"4. She failed to clear said windshield so as to give her a reasonable vision of the street in front of said automobile.
"5. She drove said automobile into and against said standing snowplow which was in plain sight and discernible to any reasonably careful automobile driver.
"6. She failed to exercise such reasonable care as would ordinarily have been expected from a reasonably prudent automobile driver under the circumstances there attendant."
Plaintiff's reply joined issue upon defendant's affirmative defense.
A trial was had resulting in a verdict and judgment in favor of plaintiff in the sum of $8,074.90. Defendant appeals.
Two assignments of error are urged in defendant's brief.
The first assignment is that the trial court erred in refusing to give the following instruction as requested by the defendant:
"The plaintiff admits that the lower half of the windshield was at the time of the accident covered with nontransparent sleet, and therefore the plaintiff was guilty of negligence as a matter of law."
This requested instruction is based upon the provisions of paragraph (f) of subdivision 20 of section 1 of chapter 217 of General Laws for 1927, pp. 264, 271, which provides:
"(f) It shall be unlawful for any person to drive any vehicle upon a highway with any sign, poster or other nontransparent material upon the front windshield, side wings, side or rear windows of such motor vehicle other than a certificate or other paper required to be displayed by law."
In construing this provision of the statute, we apply the rule of ejusdem generis, in accordance wherewith such terms as "other", "other thing", "others", or "any other", when preceded by a specific enumeration, are commonly given a restricted meaning and limited to articles of the same nature as those previously described: 25 R.C.L. 997, section 240, note 18, 36 Cyc. 1120, note 45.
In thus construing the statute, we hold that sleet, which attaches to the windshield of an automobile, is not within the purview thereof. No error was committed in refusing to give the requested instruction above quoted.
The second assignment is that the trial court erred in refusing to give the following instruction as requested by the defendant:
"If you find from the evidence that a reasonably prudent automobile driver under the circumstances would have had the automobile under such control as to have enabled the same to have been stopped within the range of the driver's vision, and if you further find that the automobile in which plaintiff was riding was being driven at such a rate of speed that it could not be stopped within the range of vision of the driver, then the driver of the automobile involved in this case was negligent, and if such negligence was the proximate cause, or contributed in the slightest degree to the proximate cause of the collision, you will return your verdict in favor of the defendant company."
There is no pleading upon which to base this instruction.
It is not charged that plaintiff's car could not have been stopped within the range of its driver's vision.
The refusal of the court to give the requested instruction last above quoted was not error.
The judgment of the lower court is affirmed.
BEAN, C.J., RAND and ROSSMAN, JJ., concur.