Smith v. Phila. Traction Co.

Opinion by Smith, J., (after stating the facts as above): Was the driver’s failure to get off the track in time to avoid the collision, under the circumstances negligence per se ? If it was, then the defendant’s fourth point should have been affirmed and a verdict directed for the defendant. If, however, it was not, then the questions of negligence and contributory negligence were for the jury. It must be admitted that he who drives a team across or along an electric railway track is held to a higher measure of duty than if it were a track for horse cars. One purpose of the greater motor power is to increase the speed of the cars, and the right to run more rapidly necessarily follows from the nature and purpose of the power and the grant of the right to use it. But a corresponding obligation arises. He whose agencies [135] increase the danger of travel on the highway assumes the duty of increased care and vigilance. The measure of care is thus increased on both sides; and the responsibility of each to the other is to be determined in the light of their relative rights and duties thus established. It is not contended that the driver was a trespasser while on the track, nor that he had no right to be there under any circumstances. But it is earnestly and ably argued that the driver having gone upon the track knowing the cars were running toward him, it was his duty to be constantly on the lookout, and to clear the track for their passage; that nothing but an urgent necessity could justify him in being on the track, and that no such necessity was shown. Duties 'and responsibilities grow out of rights and the circumstances accompanying their exercise, and vary with their scope and the dangers attending them. It is true the right of a railway company to the surface of the streets covered by the trades is superior to that of the public; the cars have the right of way thereon over private vehicles and pedestrians, and the latter must yield to this paramount right. But this higher right in no way absolves the company from the greater care cast upon it because of the increased speed of its cars on crowded thoroughfares. It is also true that the streets are common to all who desire to pass over them, including the surface covered by the tramways; but this does not mean that travelers by carriage or on foot may obstruct the passage of street cars. All have a right to use the streets for passage, with a reasonable concession to the rights, needs and conveniences of each other, and regardful of the restrictions, facilities and purposes of the modes of travel employed. No one has an absolute, exclusive right to any part of the streets. As was said in Gilmore v. Railway Co., 153 Pa. 31, “ Street railway companies have not an exclusive right to the highways upon which they are permitted to run their cars, or even to the use of their own tracks. The public have a right to use these tracks in common with the railway companies, and therefore, while the rights of the latter are in some respects superior to those of the former, as was said in Ehrisman v. East Harrisburg City Passenger Railway Co., 150 Pa. 180, it is not negligence per se for a citizen to be anywhere upon such tracks. So long as the right of [136] a common user of the tracks exists in the public, it is the duty of passenger railway companies to exercise such watchful care as will prevent accidents or injuries to persons who, without negligence upon their own part, may not at the moment be able to get out of the way of a passing car. The degree of care to be exercised must necessarily vary with the circumstances, and therefore no unbending rule can be laid down.” This statement of the law has been expressly adopted and applied in Gibbons v. Railway, 155 Pa. 279; Kestner v. Traction Co., 158 Pa. 422; Lott v. Railroad, 159 Pa. 471; Thatcher v. Traction Co., 166 Pa. 66. The argument of appellant’s counsel that “no negligence short of recklessness on the part of the motorman should subject him or the railway company to damages,” because the driver was traveling in an opposite direction and must meet coming cars, is not well founded. While no doubt there is more reason to apprehend danger in traveling in an opposite direction to that of the cars, and therefore a greater degree of care is demanded, yet this is not unlawful in itself; it but furnishes an additional element for consideration in determining the question of the driver’s negligence. In Thatcher v. Traction Co., supra, the court said: “ The construction of the track and the form of the rail are with a view to a user in common. The right of the wagon, in certain particulars, is subordinate to that of the railway ; the street car has, because of the convenience and exigencies of that greater public which patronizes it, the right of way; whether going in the same direction ahead of the car, or in an opposite one to meet it, the driver of the wagon must yield the track promptly on sight or notice of the approaching car; but he is not a trespasser because upon the track; he only becomes one if, after notice, he negligently remains there.” Under the evidence the jury might very properly have found that the driver did all in his power to leave the track upon seeing the car approach, and that the motorman was looking to the side of the street instead of in front, while the car was running very fast. The conductor of the car testified that, standing on the rear platform, he could see from Bainbridge to Catharine streets — the entire distance the cars travel on Front street. If that be true, there would seem to be no reason why the motorman could not have seen equally far, and also have [137] seen the approaching wagon, had he been attending to his duties. The responsibilities of the motormen, and the high degree of care they must exercise while operating electric cars, is a very important matter for consideration in these cases, involving so largely the public safety. In Schnur v. Traction Co., 153 Pa. 29, the Supreme Court said: “Very much depends upon the care of the gripman. He should always be on the alert to avoid danger, and his attention never should be diverted from his duties. He should keep his eye constantly on the track before him. If he is permitted to gaze at houses or other objects' while the car is in motion, and an accident occurs by reason of such conduct, the company employing him must expect to be held responsible.” This has been repeated, substantively, in many other Supreme Court cases, and also by this court: Henne v. Railway Co., 1 Pa. Superior Ct. 311. The fourth assignment is overruled. The points made the subject of the first and second assignments asked the court, by implication at least, to determine questions of fact, while the third, also, could not be affirmed without assuming as true an important matter of fact in dispute. The case was well tried, and the learned judge carefully guarded the rights of the appellant in his instructions to the jury, and we find no reason for disturbing their verdict. The assignments of error are all overruled and the judgment is affirmed.