Spittle v. Charlotte Electric Railroad

Clark, C. J. Tbe issue is almost entirely one of fact as to tbe proximate cause of tbe collision in which tbe plaintiff’s intestate was killed. Tbe plaintiff contends tbat tbe driver of tbe fire truck was not guilty of negligence; tbat running at a speed of 25 to 85 miles an bour in response to tbe fire alarm be bad a right to assume tbat tbe motormen of all street cars and other vehicles in obedience to tbe ordinances of tbe city would give tbe right of way. And tbat it was impossible for tbe driver of tbe truck to bave stopped in time to bave avoided tbe collision after be saw or should bave seen -tbe street car, and tbat if when be turned into tbe avenue on which tbe street car was running be bad endeavored to avoid tbe collision by slowing up and turning to tbe left or right, tbe truck would bave skidded broadside and bave done more damage to tbe occupants of tbe street car as well as to those on tbe truck. Tbe motorman of tbe street car, according to bis own evidence, should bave beard tbe approach of tbe fife truck at least a block, and according to tbe evidence of tbe plaintiff’s witnesses at least three blocks away. Assignments of error 1 and 2 cannot be sustained. It was competent for tbe plaintiff to prove by other motormen tbe distance in which they bad beard tbe approach of similar fire trucks while operating street cars under similar conditions. As to assignments of error 4, 5, and 7, tbe trial judge committed no error in modifying tbe defendant’s prayers for instruction in regard to *500 tbe negligence of tbe truck driver by requiring tbe jury to find tbat bis negligence was tbe sole proximate cause of tbe injury, before answering tbe issue as to negligence of tbe defendant “No.” Unless tbe negligence of tbe driver of tbe truck was tbe sole proximate cause of tbe injury, tbe court could not charge tbe jury to answer tbe first issue “No.” Crampton v. Ivie, 126 N. C., 894; McMillan v. R. R., 172 N. C., 853. In tbe latter case tbe Court said: “"Where intestate was killed by tbe collision of an automobile in which be was riding, independently driven by another, with a train at a crossing, tbe negligence of tbe driver may be considered only upon tbe question of proximate cause in tbe action against tbe railroad.” WTiether on tbe facts of this case tbe negligence of tbe driver of tbe truck was tbe sole proximate cause of tbe injury, was a question essentially for tbe jury. According to plaintiff’s testimony, tbe approach of tbe truck could have been beard by tbe driver of tbe street car several blocks before tbe point of collision was reached. Tbe motorman says at least a block away, and tbe witnesses on both sides testify tbat tbe motorman could have seen tbe approach of tbe truck when it was 150' feet south of tbe place where tbe collision occurred. Sixth assignment of error. It was proper for tbe judge to modify tbe defendants’ fourth prayer for instruction by requiring tbe jury to find tbe driver of tbe street car was not guilty of any other act of negligence, though not specified in tbe prayer, before answering tbe first issue “No.” Eighth assignment of error. Tbe court also properly refused to charge as requested in tbe defendants’ sixth prayer, because tbat required tbe jury to answer tbe first issue “No,” even though they should find tbe motorman was guilty of concurring negligence. Ninth assignment of error. Tbe court also properly modified tbe defendants’ seventh prayer by requiring tbe jury to find tbat tbe alleged negligence of tbe truck driver was tbe sole proximate cause of tbe injury before they could answer tbe first issue “No.” Tenth assignment of error. Tbe court also properly refused the defendants’ eighth request to charge, for it was a question of fact as tO' whether tbe motorman beard, or understood, tbe warning of tbe driver of tbe first truck tbat another was following. Eleventh and twelfth assignments of error. Tbe defendant’s ninth and tenth prayers were refused evidently because not based upon tbe evidence, tbe motorman having admitted tbat if tbe truck bad been making tbe usual noises be could have beard it a block away. Thirteenth assignment of error. Tbe court properly declined to give tbe twelfth instruction asked because -if tbe motorman discovered, either from tbe warning of tbe driver of tbe first truck, or otherwise, tbat a *501 second truck was approaching in consequence of the alarm of fire, the city ordinance required him to stop his car immediately. The fourteenth assignment of error. The court did not err in charging as requested by the plaintiffs in their second prayer. If the motorman ought to have seen the approach of the second truck in time to have stopped, his failure to do so was in violation of a city ordinance and negligence as a matter of law. If such negligence was the proximate cause of the injury, the defendant was liable therefor. The case turns almost entirely upon the question whether upon the evidence there was violation of the city ordinance by the motorman which was the cause or the concurring cause of the collision. There can be no question of the validity of the ordinances in question. The plaintiff not being in control of the fire truck, the defendant was not entitled to have the issue of negligence answered in its favor unless the negligence of the driver of the fire truck was the sole proximate cause of the collision. Crampton v. Ivie, supra. The amount of damages, and the earnestness and ability with which the cause has been presented in this Court, and doubtless in the court below also, have caused us to consider with great care the contentions of the parties. Rut aside from the issues of fact, which were solely for the jury, the propositions of law are in a small compass, and we think are summed up in stating the above conclusions of the Court. No error.