Davis v. . Traction Co.

Connor, J., after stating the case: His Honor could not, upon the entire evidence, have properly given the first instruction asked. The testimony upon which defendant relied to sustain the defense of contributory negligence was conflicting and certainly, upon any hypothesis, different inferences may have been drawn. The instruction prayed, which was substantially a demurrer to the entire evidence, presupposes that in the view most favorable to the plaintiff, contributory negligence was established as a conclusion of law. The exception to the refusal to so instruct the jury was not pressed in this court. The second exception is pointed to His Honor’s refusal to give the sixth instruction prayed. “It is the duty of a driver of a private vehicle while on the track, not only to turn off when called upon by a serVant of the company, but to listen to-whatever signal there may be of an approaching car; and he should also look behind from time to 'time so that he may, if a car be near, turn off and allow it to pass without hinderance or any slackening of ordinary speed, and if he fails to observe this precaution, he does so at his own risk.” There is no'valid objection to the legal proposition involved in the instruction, bu't we think that, in so far as there was evidence bearing upon it, His Honor so instructed the jury. The *139 plaintiff was not injured by failing to “turn off” the track after he saw or could, by the exercise of ordinary care, have seen the approaching car, but by attempting to cross the track. There is no suggestion that he lingered upon the track. The defendant’s witness says that he was trying to cross the track at the rate of four to six miles an hour. It must be conceded that if one be walking along, or crossing, a track it is not only his duty to turn off when signalled, but to keep a lookout, look and listen for the approach of a car. The track itself is- notice that a car may at any moment approach. We are speaking only of street railways in this connection. The plaintiff says that before trying to cross, he did look and could see seventy-five yards; that he saw no car and heard no signal until the car was within six or eight feet of him. That he did not have time then to get off the track. There was evidence-that one witness on the car saw plaintiff enter upon the track when the car was nót more than twenty-five or thirty^yards away from him; he is corroborated in that respect. His Honor correctly submitted the question to the jury. There is no positive evidence that he did in fact see the car or hear the signal, there was evidence from which the jury may have so found, but it was their province to pass upon the question. -The theory of the plaintiff is that he did not see the car or hear the signal until at the high speed which he fixes, it was impossible to get off, or for. the car to be stopped. The defendant, denying the excessive speed, insists that he either did see, or, by the exercise of ordinary care, could have seen the car approaching, and that in either view 'he was guilty of negligence in going hpon the track which contributed to his injury. The third exception is directed to the measure of, defendant’s duty upon the theory that plaintiff “suddenly and unexpectedly drove his wagon across the track,” in which view of the case it is insisted that defendant was only required to use ordinary care to avoid injuring him. The instruction is correct and should have *140 been given but for the omission of the element of excessive speed which runs through the entire case. It is undoubtedly true that if a car is moving at a lawful, that is, not an excessive, speed and a person enters upon the track, the defendant is required to use ordinary care, give the signals, lower the speed and if it appears reasonably necessary, stop the car. If the car is properly equipped and the equipment used with reasonable promptness and care, the defendant will not be liable for an injury sustained. If, however, the car is moving at an excessive speed, that is, a speed in excess of that prescribed by the city ordinance, and by reason of such excessive speed the .signals cannot be given or the appliances used by the exercise of ordinary care, the defendant will be liable for an injury and this for the reason that it has, by the excessive speed, brought about a condition which it cannot control. It was therefore proper for Ilis Honor to modify the instruction by inserting the words “and the car was not running faster than fourteen miles an hour.” This gave the defendant the benefit of the principle invoked, unless the jury found that the speed was excessive. This court has held in accordance with many others that speed in excess of that prescribed by the ordinance is at least evidence of negligence and His Honor so instructed the jury. Edwards v. Railroad Co., 129 N. C., 78. It may be that, under unusual conditions, such as a crowded street or passing a funeral or other procession or other conditions liable to occur in a city, the ordinance speed would be excessive. Certainly, beyond that prescribed, it is always evidence of negligence and under other than usual conditions, the standard of duty in regard to speed would be that of the ideal prudent man. The fourth exception is directed to the instruction given: “It is not negligence per se for a citizen to be on the track so long as the right of a common user of tracks exists in the public, it is the duty of passenger railway companies to exercise-such watchful care as will prevent accidents or injuries *141 to persons wbo, without negligence on their part, may not at ':he moment be able to get out of the way of a passing car.” If this instruction was not materially modified, we do not think that it could be sustained. Assuming, that with certain modifications, which were explained to the jury, plaintiff and defendant had, in common, the right to use the street, it cannot be that while both are in the enjoyment of such right, the duty is imposed upon either-“to exercise such watchful care as will prevent accidents or injuries,” etc. No one is legally liable for an accident or, what is equal thereto, an accidental injury. If the injury is the result of negligence, it is not an accident. It often happens that while two or more persons are in the exercise of common rights or the discharge of lawfully imposed duties, an injury is sustained which cannot be traced to an omission or breach of any duty or avoided by the exercise of the degree of care required; such injuries are said to be accidental. . The law has no means of tracing them to any breach of duty and therefore holds no one liable. The usual rule applied to the relative rights and duties of persons enjoying a common right, is ordinary care, as railway companies and persons using a public crossing. Each must exercise that degree of care which is used by prudent men, under similar circumstances. That being the standard, the question, except in certain well defined cases, is for the jury to find the facts and apply it. When it is said that, the citizen and the street car have a common right to use the highway, regard is had to the elementary law that two objects cannot at the same time occupy the same space. It is, therefore, necessary to formulate such rules based upon common sense and experience as will enable them both to enjoy their common right without undue interference with each other. The car must run on the track or not at all, the citizen on foot or in a vehicle may change his course easily and promptly, using unoccupied portions of the street — hence, as His Honor correctly said to *142 tbe jury, be must give way to tbe car to prevent a collision. Tbis being so, tbe duty is imposed upon tbe managers of tbe car to move at a reasonably safe speed, tbe maximum of wbicb in Durham is by ordinance fixed at fourteen miles an bour; to equip tbe -car witb signals and means of controlling it — bringing it to a stop when necessary and, as prescribed by statute in tbis State, to use a fender. In view of these principles His Honor said to tbe jury that if they found that plaintiff suddenly drove across tbe track in front of the car and that thereupon tbe employees of defendant when they saw his danger did all that they reasonably could do to stop tbe car and avoid tbe injury, tbe defendant would not be guilty of negligence and they would answer tbe first issue “no.” He gave the defendant tbe benefit of tbe same principle in bis instruction upon tbe second issue in regard to contributory negligence. “If tbe jury shall find from tbe evidence that tbe defendant’s motorman sounded tbe gong or that the defendant’s car approaching tbe plaintiff made sufficient noise to be beard by tbe plaintiff before be attempted to cross tbe track, and notwithstanding either tbe sounding of tbe gong or. tbe noise of tbe car, tbe plaintiff undertook to cross said railway track when tbe car was very close to him and so close that a collision witb tbe plaintiff’s wagon could not, by tbe exercise of reasonable care, be avoidéd by defendant, then tbe jury will answer tbe second issue “yes.” Tbis was equivalent to saying to tbe jury that if they found defendant’s evidence to be true, they should find tbe issue accordingly. Tbe general principles applicable to such cases were well considered in an opinion by Mr. Justice Douglas, in Moore v. Street Ry. Co., 128 N. C., 455. His Honor’s instructions are sustained by tbe law as announced in that case. Tbe testimony was conflicting and tbe jury adopted plaintiff’s version of the transaction. We find no reversible error in tbe record. It is so adjudged. No Error.