place. Defendant's car was a two-seated one. There were six people on the car; one on the seat with defendant who was driving, one standing on each side, and two hanging on the back. It was a dark, misty night, and there was quite a bit of moisture on the windshield. The speed of the auto was estimated at from about 20 to 25 miles an hour. Defendant states: "I ran at that time 20 miles an hour-15 or 20 miles an hour." As to the happening of the accident the testimony was, in substance, as follows: Plaintiff's witness Putnam testified thus:

"We got around the curve, and we hit Mr. Weygandt, and then just about the time, or just a little bit before we hit him, Mr. Bartle kind of went kind of diagonal across the road, and when he got to the other side he tried to straighten up, and the rear end of the car kind of slued off from the plank, and we went ahead probably 75 or 100 feet, something of that matter: I didn't measure it, but it was a short distance, and we stopped.'

Defendant's witness Standish described the accident thus:

"I was looking ahead, I was on the outside of the car, I had my head on the outside, and I had a perfect view, and was watching the light as it shone on the road, and all at once I saw a man, and I called to the Doctor, "There is a man there.' He was on the right-hand side of the road, and he was just in the circle of the lights, from the car. The Doctor didn't do anything but shove the car right over, or pulled it to the left, and I hung on because I was a little afraid that he would skid the way he turned there, and I lost sight of the man because he was on the other side of the car. Then I felt a jolt of the car, and I said, 'You hit him.' The Doctor kept on turning to the left until he was clear of the road. Before he got there, I jumped.

*

that he did not have proper control of the machine so as to stop the same or slacken the speed sufficiently to avoid striking the plaintiff, who was making a desperate leap to escape the car and within a reasonable time would have done so. See Motor Vehicle Law, Laws of Oregon 1911, p. 267, §§ 16, 17. This act provides that every vehicle shall be run at a rate of speed at no time greater than is reasonable and proper, having regard to the safety of the public, the traffic, and use of the street or highway. Ordinance No. 185 of the city of North Bend makes practically the same provision as to the speed of autos on all streets, avenues, and public highways within that city. The deductions to be drawn from the evidence are for the jury, and not for the court. The testimony clearly tended to support the averments of the complaint. The determination upon the motion for a nonsuit cannot be disturbed.

[3, 4] Over defendant's objection and exception, plaintiff was permitted to show that he had been promised an increase in wages, and that owing to the injury complained of he was incapacitated to work; that after the injury he was promoted, but was unable on account of the hurt to do the labor. The rule is stated in 13 Cyc. p. 204bb, thus:

"Where by virtue of the contract of employment plaintiff will, if found satisfactory, be promoted or given an increase of salary within a stipulated or reasonable time, this fact is admissible on the question of damages."

See Bryant v. Omaha, etc., Co., 98 Iowa, 483, 67 N. W. 392; St. Louis, etc., Ry. Co. v. Sweet, 60 Ark. 550, 31 S. W. 571; Sou. Pac. Defendant's version of the occurrence is v. Ward, 208 Fed. 385, 392, 125 C. C. A. 601. as follows:

"Standish said. There is a man,' and I turned the engine off, and I began to turn to the left, and I tried to find him, and I could not see any man in the light, and when I did see him he was in front of the right light. He was not 15 feet away with his head down, and his dinner bucket in his hand. The wind was blowing from the north, and he turned right square around in the road, faced me, and gave a little jump to the side, and the only place that the car hit him was on the top of the fender, and that is what hit him in the side right here. * * The first thing he asked me, he said, 'Couldn't you see me?' and I said: 'Yes, I could see you, but not quick enough to miss you.'

The damages awarded plaintiff were not excessive. There was no prejudicial error in such ruling.

[5] Defendant's counsel contend that the plaintiff failed to plead and prove the initiative charter of the city as the law then required, and that therefore it does not appear that the city had control of the street where the accident occurred, and that it was error to submit the provisions of the ordinance to the jury. The legislative charter of North Bend of 1903 (section 27, subdiv. 23) provides that the council shall have power within the city of North Bend "to regulate the use of the streets, sidewalks, crosswalks, highways and public places for foot passengers, animals, vehicles," etc. Subdivision 27 of this section confers power on the city council "to control and regulate the traffic on the streets, avenues and public [2] We cannot say there was no evidence places," and subdivision 40 thereof gives to support a verdict; therefore we are in- the council power "to regulate the speed hibited from disturbing the same. Section upon any and all railways, street cars and 3, art. 7, Const. The jury might reasonably street car lines or other roads, or vehicles conclude from the evidence, and apparently of all kinds," etc. See Special Laws of Oredid, that, taking into consideration the time gon for 1903 (Sp. Sess.), p. 97. The power and place and the prevailing circumstances, thus granted enabled the city to enact the orthe defendant was driving his car at a great-dinance in question. The provision in the er speed than was reasonable and proper, charter in regard to streets is a very common having regard to the safety of the public; one, and it will not be presumed, in the ab

Plaintiff testified that he heard no horn or warning as the car approached him from behind and struck him; that "I said to Dr. Bartle, 'My God, couldn't you see me coming?' and he said, 'Yes, I could see you, but I could not keep from striking you.'"

"All such declarations and exclamations of present pain or suffering as would ordinarily and probably be caused by such injury are admissible as original evidence when made under ordinary circumstances, although it be a considerable time after the injury; declarations of past pain and suffering or such declarations, suit has been brought, are not ordinarily admiswhen made after the controversy 'has arisen or

sence of a showing to the contrary, that such | W. 227. At page 200 (8), of 13 Cyc., the rule charter authority has been abrogated by any is laid down thus: initiative measure. Rusk v. Montgomery, 80 Or. 93, 156 Pac. 435, 438. The evidence as to what change had been made in the charter was excluded at the instance of the defendant. It was under the dominion of the city authorities by virtue of the police power of the city. There was no error in this respect. [6] Objection is made on behalf of defend-sible." ant that witness Putnam, a nonexpert, was permitted to estimate the speed of the car on which he was riding at the time of the casualty. This was competent. The witness stated that since the accident he had ridden on cars and had taken notice of speedometers, and judged from that that defendant's car was running about 20 miles an hour. The objection goes only to the weight of the evidence. Everart v. Fischer, 75 Or. 316, 145 Pac. 33, 147 Pac. 189; Macchi v. P. Ry.,

L. & P. Co., 76 Or. 215, 148 Pac. 72; Oberstock v. United Rys. Co., supra. There is no real controversy as to the speed of the auto at the time of the injury. Defendant's witness estimated the rate at from 15 to 25 miles an hour.

[7] The defendant complains that counsel for plaintiff was improperly allowed to impeach his own witness by asking Putnam the following question:

"Haven't you stated that at one time he (defendant) was going at the rate of thirty miles an hour?"

[9] It is well settled that a physician or attendant may testify to the injured party's statement as to his symptoms, ills, and the locality and character of his pain, when made for the purpose of medical advice and treatment, as such statements are made with a view to being acted upon in a matter of the injured party has a strong and direct grave personal concern, in relation to which interest to adhere to the truth. 13 Cyc. p. 201 (9).

[10, 11] Defendant complains of the instructions given by the court. The jury were plainly instructed to the effect that it was the duty of the defendant in operating his automobile over the highway to use ordinary care to avoid injury to pedestrians, and if he performed his duty he would not be liable; also, that it was the duty of the plaintiff in traveling along the street or highway in question to use ordinary care to avoid injury, and that, if he failed to exercise such ordinary care and thereby proximately contributed to his injury, then the defendant would not be liable even though the defendant was guilty of the negligence charged in the complaint. The defendant contends that contributory negligence was not pleaded in the answer, but that he plead

The witness then testified that he had said defendant was probably going between 25 and not more than 30 miles an hour, but that since then he had ridden on cars and observed the speedometers and had reached the conclusion that the speed was about 20 miles an hour. The object of the questioned that the injury was caused wholly by the objected to was apparently to refresh the memory of the witness, and not for the purpose of impeachment. Where a party is disappointed in his witness, it is within the discretion of the trial court to permit his counsel to frame his questions so as to refresh the memory of the witness and to direct his attention to the statements previously made by him in regard to the subjectmatter of his testimony. 40 Cyc. 2450; White v. State, 87 Ala. 24, 5 South. 829; Hildreth v. Aldrich, 15 R. I. 163, 1 Atl. 249; Bullard v. Pearsall, 53 N. Y. 230; Hickory v. U. S., 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170.

negligence of the plaintiff. The defendant's counsel requested an instruction upon contributory negligence of the same purport as the one given, and therefore cannot be heard to complain of the giving of such an instruction. Wesco v. Kern, 36 Or. 433, 59 Pac. 548, 60 Pac. 563; 4 C. J. 707. The charge was advantageous to the defendant and cannot be assigned as error by him. 4 C. J. 920, note 63a. See, also, Pim v. St. Louis Transit Co., 108 Mo. App. 713, 84 S. W. 155; Smith v. Ogden, etc., R. Co., 33 Utah, 129, 93 Pac. 185, 188.

A careful examination of all the instructions given by the court to the jury, some of which are complained of, shows that the questions at issue were fairly submitted to the jury. It is unnecessary to refer to the instructions at length. Other errors are assigned in a general way.

[8] Defendant assigns as error that the court erred in permitting plaintiff's witness Richards to testify that on the day after the injury plaintiff complained of pain in his side. The statements or declarations of the plaintiff were properly admitted in evidence for the purpose of showing the condition of his health, which was in issue under the elaim that he was severely injured. 1 Greenleaf, Ev. § 102; Blair v. Madison County, 81 Iowa, 313, 46 N. W. 1093, 1094; MCBRIDE, C. J., and MOORE and Me

We have examined the questions raised and find no prejudicial error in regard thereto nor any reason for the reversal of this

case.

others and switched upon a certain track, to

GIERSCH v. ATCHISON, T. & S. F. RY. CO.* adjust the knuckle so that it would couple

(No. 21404.)

(Supreme Court of Kansas. March 9, 1918.)

(Syllabus by the Court.)

1. MASTER AND SERVANT 278(18)-FederAL EMPLOYERS' LIABILITY ACT-EVIDENCESUFFICIENCY.

properly, and that the train, which had stopped, started up without warning and ran against him crushing him against the drawbar of the flat car.

It is insisted that there is no evidence that the train had come to a stop. This record

The evidence examined, and found to sup- does not bear out such a contention. port the findings of the jury. 2. SUBSTANTIAL ERROR.

The record examined, and held to disclose no substantial error as to the merits of the case. 3. LIMITATION OF ACTIONS 82-DEATH OF SERVANT-FEDERAL EMPLOYERS' LIABILITY

Аст.

Under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, § 8662]) § 6, the cause of action accrues within two years from the date of the death of the deceased, and a personal representative appointed more than two years from such date cannot maintain an action. 4. MASTER AND SERVANT 2531⁄2-FEDERAL

EMPLOYERS' LIABILITY ACT-LIMITATIONS.

The widow brought her action under the state statute and recovered a judgment which was reversed. When reached the second time for trial, leave was given to amend by interlineation by increasing the amount of recovery prayed for and by the allegation of the widow's ap pointment as administratrix and by striking out the former allegation that no administration had been had nor any personal representative appointed. The plaintiff's intestate was killed more than two years before this time while engaged in interstate commerce. Held, that the statute of limitations had run, and that the plaintiff as administratrix cannot recover. Johnston, C. J., and Mason, J., dissenting. Appeal from District Court, Lyon County. Action by Jessie Giersch, administratrix of the estate of Charles M. Giersch, deceased, against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with direction to enter judgment for defendant.

W. R. Smith, O. J. Wood, and A. A. Scott, all of Topeka, for appellant. W. S. Kretsinger and Hamer & Ganse, all of Emporia, for appellee.

Mr. Wilhite testified, among other things. "At the time Mr. Giersch was adjusting or working on that knuckle, the main train had stopped. The main train did not re main standing during all the time he was working on this knuckle."

On cross-examination:

"The cars behind him had stopped. I seen them. There was nothing between me and that train to prevent me from seeing these cars. I should judge the cars following had stopped stock-still. They did not remain stopped very long. I don't know how long. I saw him in there a space of 10 or 15 seconds before he was hit. The cars had stopped possibly 2 or 3 seconds before that."

On redirect examination:

"I said that after he had walked along there behind that car and was working with the knuckle the train stopped, came to a dead stop, and then when it started it moved gradually down."

Mr. Sterner testified:

"He was following the flat car and working the knuckle with his hands. The train had stopped, well, I will say momentarily, as though the engineer has set the air and released it." On cross-examination:

"I couldn't see the engine that was pushing this string of cars on account of some waycars, that were on the way-car track between me and the engine. I could not tell as to whether the engine stopped or not. I did notice the slacking or stopping of the cars up at the east end of this string of cars.'

Mr. Anderson for the defendant testified: "Unless a man was paying very particular attention, he could be fooled by this rebound. He might have thought they had stopped when they hadn't."

On cross-examination:

"It fooled me, too, and I don't say now whether it stopped or not."

Again:

that train was either so slacked up that I could
"After that car was uncoupled from the train,
not tell whether it entirely stopped or not, or it
did actually stop; one or the other."
From the counter abstract:

WEST, J. When this case was first here, we held that the action could not be maintained by the widow. 98 Kan. 452, 158 Pac. 54. Thereafter the plaintiff was appointed administratrix and as such was substituted as plaintiff. Leave was granted to amend Mr. Wilhite: "Q. If I understand you corthe petition by interlineation. The jury re-rectly, you say after he had walked along there turned a verdict against the defendant for causing the death of the plaintiff's intestate. The defendant appeals and contends that the action is barred, also that the judgment ought to be reversed, urging in its brief that the evidence did not support the charge of negligence and that the principal findings are contrary to the evidence.

[1] As to the merits, the claim of the plaintiff is that the deceased, a switchman, went in behind a slowly moving flat car, which had been separated from a number of

knuckle, the train stopped-came to a dead stop? behind this car and was working with the A. Yes, sir."

Mr. Sterner: "Q. I will ask you if you did not state in your former testimony, if you did not unqualifiedly say that the train had stopped, for the purpose of refreshing your memory? A. Well, I believe it had come to a stop-a complete stop."

While there was evidence to the contrary and also evidence tending to show that the stop was merely the action of the train in taking up slack, the statements of witnesses already quoted seem to have impressed the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing granted.

ham v. Patterson, 89 Kan. 684, 132 Pac. 198,, fect the bringing of a new cause, which for 48 L. R. A. (N. S.) 506. The closing words of the opinion are: