The first ground of error assigned is as to the action of the court in allowing plaintiff to amend her complaint. It will be remembered that the original complaint described the place of the accident as taking place on the north side of Broadway Street and near the sidewalk. It was amended, as already mentioned, so as to read “at a point near the northerly car track on East Broadway Street.” Defendants contend that this stated a new cause of action, but we do not so regard it. The cause of action was the same, namely, negligently driving the car so as to produce the injury of which plaintiff complains. The point at which the injury occurred was not part of the cause of action although incidental to it, and the change permitted did not in any way change the cause of action, but merely located the place of the injury at a point different from that specified in the original complaint. It was not such a change as would have been likely to mislead the defendants in the preparation of defendants’ case or require any other witnesses than those that would have been summoned in any event. Nor was there any motion to continue the cause for further consideration.
Most of the authorities cited by counsel for defendants have reference to departure in the pleadings whereby is meant a change in a reply stating a cause of action different from that set forth in the complaint. This objection will have to be overruled. The principal objection urged is that the uncontroverted fact showed that the plaintiff was guilty of contributory negligence and therefore a verdict for the defendants should have been directed.
*456It is needless to say that, where testimony is conflicting, the appellate court will not attempt ito weigh the evidence upon appeal. Yet this is practically what counsel have asked us to do in this case.
The testimony of the plaintiff is to the effect that upon leaving the curb on the south side of Broadway at its intersection near Sixth Street, she looked first to the left and saw a car coming from that direction and that she also looked to the right and saw the car driven by defendants’ chauffeur more than a block away going down toward the west and that she thought she had plenty of time before it would reach her as she was proceeding on the crosswalk to the northerly side of Broadway. Taking her statement as true, as we must, the defendants’ car was more than a block and the width of Sixth Street away and we cannot say as a matter of law that she was Negligent in attempting to cross the street and proceeding on her way under these circumstances for she did as any reasonable person might do assuming that this car was being driven at the ordinary rate of speed, which is said to be something like fifteen miles an hour. She further says that when she reached the center of the street between the car tracks that she noticed that the defendants’ car was coming very rapidly and assuming, not unreasonably it seems to us, that the car would have ample room to pass her, she stopped for it to pass. We are not able to say as a matter of law that this was negligence on her part. She testified that there was ample room for it to pass further to the north and that it could have (Jone so without striking her. It is not uncommon in emergencies of the kind claimed by plaintiff, for pedestrians to stop and allow the car to pass assuming that it will be reasonably driven and with due reference to their safety. If the plaintiff’s testimony, *457that the car was being driven at a very rapid rate of speed, was true, she cannot be held to have contributed to the injury by thus retaining her position. It is true that she might have stepped back a step or two, but as she remarked, by so doing, she might have stepped back in the way of some other car going in another direction. Taking her account of it, it was an emergency which required the exercise of immediate judgment either as to action or nonaction. ¥e cannot assume that she was negligent in not stepping back or in standing still, if, as she says, there was ample room for the car to pass without striking her. She was bound to use reasonable care to avoid the injury, and whether she did so or not, was a question for the jury and not of law for the court. The testimony is conflicting as to the speed of the car. Plaintiff says that it was coming very rapidly, so rapidly as to induce in her mind a sense of danger and for that reason she did not proceed farther. Her son fixes the speed in his testimony at twenty-five or thiry miles an hour while other witnesses put it at about fifteen miles an hour. It was for the jury j¡o decide which set of witnesses were testifying correctly. But even while fifteen miles an hour is not ordinarily a rapid rate of speed, it might be an excessive rate of speed at a crossing largely frequented by pedestrians, and, according to the defendants’ testimony, not lighted in the most approved manner.
The fact remains that the plaintiff was struck and very seriously and very dangerously injured, and, according to her statement of the case, the accident occurred on account of the defendants’ chauffeur running directly toward her or against her when he might have, by the exercise of ordinary prudence and by the use of his eyesight, discerned her presence in time to have avoided the accident. .
*458 The defendants’ chauffeur testifies that he was unahle to see her. That the lighting system of the car was such as he was unable to see persons crossing the path of the car. In such a case, it was his duty to have held his car under such control as to have avoided the accident if possible. Whether it was impossible to have seen her, if he had been keeping the proper lookout, was a question of fact for the jury. They saw the car and observed its lighting system. They saw the street and the intersection and were the judges qs to whether the defendants’ chauffeur kept the proper lookout and kept the car under proper control as might have avoided an accident of this character. The chauffeur says the plaintiff stepped instantly in front of his car. She says that she was standing absolutely still for quite a while when he entered the intersection. In this contradiction of the testimony there arose a question of fact for the jury to determine and which they must have determined in favor of the plaintiff in order to have found this verdict.
It is claimed that the plaintiff’s testimony is contradicted by physical facts, but the only fact relied upon is that some pieces of glass, claimed by defendants’ driver and others to have been fragments of the left headlight of the defendants’ car, were found about six feet north of the northerly car track, which would place them at something- like ten feet north of the center of the street. It will be remembered that when the plaintiff was struck, she fell against and upon the car and that the car at some point swerved to the right until it reached the curb on the north side of Sixth Street and about fifty feet from the intersection. Whether the glass fell immediately when the plaintiff was struck, or whether the weight of her body against it and against the fender *459of. the car held it and prevented it from falling at the place of the collision were questions of fact for the jury under all the circumstances.
Another point established is the admission of witnesses who testified on rebuttal, and who had been excluded from the courtroom at the beginning of the' trial, but, after testifying in chief, remained in the courtroom. It does not appear that these witnesses knowingly violated the order of the court, but were evidently under the impression that having testified they would be at liberty to remain without any thought of being called in rebuttal.
We think there is a general concurrence of opinion in the courts that, where the violation of the order was not intentional and not procured by a connivance of counsel or from some improper motive, it is discretionary with the court to allow such witnésses to testify or to exclude them from so doing; but, under the circumstances such as appear here, it would have been an abuse of discretion had the court refused to allow them to testify.
Some objections have been raised to the instructions of the court with regard to the reciprocal duties of a driver of an automobile and a pedestrian crossing the street. Some items of the court’s instructions, if taken alone, would seem to border upon error; but, taking the instructions as a whole, we think that, on the contrary, they fully and fairly stated the law in regard to such reciprocal duties and that there was nothing in the instructions that misled the jury.
Defendants also undertook to predicate error upon the refusal of the court to allow them to introduce an ordinance of the City of Portland relating to through traffic streets. The ordinance in question seems to be directed wholly to the conduct of drivers of automobiles in relation to each other on these *460through traffic streets, aud we fail to see its relevancy to the facts in the instant case.
Taking the case as a whole, we fail to find any reversible error, or, indeed, any error in the action of the court below, and the judgment is therefore affirmed. Affirmed. Rehearing Denied.
Burnett, Bean and Belt, JJ., concur.