Wright v. Fries Manufacturing & Power Co.

BbowN, J. The feme plaintiff claims to have been injured in a collision between defendant’s electric street railway car and the wagon in which she was riding, on 28 August, 1903. There was evidence tending to prove that plaintiff was in a covered wagon driven by her son, going up Liberty Street in the city of Winston; that defendant’s car was going up the same street at the speed of six miles an hour; that in order to pass the vehicle of a Mrs. Tesh the driver of the wagon reined his team to the left and onto the street railway track. Looking back through his covered wagon and seeing the car coming, he backed his team off the track, and in so doing threw the rear end of his wagon back on the track. There was evidence tending to prove that the motorman rang his gong and attempted to bring his car to a full stop, but before he could do so the car struck the end of the wagon and shoved it forward some five or six feet, and that the feme plaintiff was injured. There was also evidence tending to prove that she received no injury. At the request of plaintiff, his Honor gave several prayers for instruction, two of which are as follows: “If the jury find from the evidence that the motorman saw the wagon on defendant’s track thirty-five or forty feet ahead of the car, with the rear end of the wagon turned towards the car, it was the duty of the said motorman to at once stop the car in order to prevent a collision with the wagon, if it could have been stopped within that distance by the exercise of ordinary care and without danger to the occupants of the car, and *536 if the motorman failed to do so tbe defendant would be guilty of negligence.” Again: “If the jury find from the evidence that the car was within thirty-five or forty feet from the wagon, and that the motorman saw that the driver of the wagon was not turning off the track, it was not sufficient for the motorman to merely ring the gong, but it was his duty to stop the car if it could have been done by the exercise of ordinary care and without danger to those on the car.” We think these instructions are erroneous, and in deference to the earnest argument of the learned counsel for plaintiffs we have carefully scanned the charge to see if the error was cured, as in Wilson v. Railroad, 142 N. C., 333, in any other portion of his Honor’s instructions. We fail to see that it was. These instructions determine as a matter of law that it was the duty of the motorman to stop his car when within thirty-five or forty feet of a vehicle on the track. It would be almost impossible to operate a street railway system with any sort of expedition if this “hard and fast rule” were adopted as a standard of duty. This subject is fully discussed in Davis v. Traction Co., 141 N. C., 134-140, where it is held: “If a car is moving at a lawful speed — that is, not an excessive rate of speed — and a person enters upon the track, the defendant is required to exercise ordinary care — give 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.” The defendant requested his Honor to instruct the jury that there was no evidence of negligence and to direct them to answer the first issue “No.” As this question is not presented upon a motion to nonsuit, the sustaining of which would dismiss the action, it is not necessary that we should pass on it, as the evidence may not be the same upon another trial. New Trial.