Wall v. Helena Street Railway Co.

Blake, C. J. This is an appeal from the judgment and order of the court overruling the motion for a new trial. The judgment was entered on the verdict of the jury for the plaintiff for the sum of two thousand five hundred dollars, as damages for personal injuries alleged to have been sustained through the neglect of a servant of defendant, a street railway company. The following facts appear to have been proved by a fair preponderance of testimony: About three o’clock in the afternoon of January 23, 1890, a car drawn by two horses was being driven on defendant’s track to the south of Main Street, in the city of Helena. The driver was a boy about fifteen and a half years old, who lacked the strength needful for this employment, and was working temporarily in the place of another. At this time the horses were trotting at the rate of seven miles per hour, which was a violation of an ordinance49 that prohibited such speed above the rate of six miles per hour. When the car approached the south crossing of Grand Street the plaintiff, a man thirty-one years old, attempted to go from the west to the east side of Main Street. Some cabs were standing on each side of the crossing near the west sidewalk, and a vehicle was also going south in advance of and between the plaintiff and the car, and his view was thereby obstructed. The plaintiff passed safely between the cabs, and in front of the horses attached to the vehicle, and partially over the railroad track, when he was struck iu the breast by the pole of the car, and knocked down and dragged or pushed a distance of thirty or forty feet. A competent driver could have stopped the car, under these circumstances, within fifteen feet of the point of collision, and within a less distance if the rate of speed had been under six miles per hour. The time during which these events occurred was less than a minute. The plaintiff received severe and dangerous injuries after he was knocked down. While he was held or pressed between the scraper and the wheel, the bystanders raised the front end of the car to remove the plaintiff from his position, but were compelled by a movement of the horses to drop it before he was rescued. What principles of law are applicable to a case of this nature? The appellant maintains that the plaintiff did not exert a proper degree of diligence, and was guilty of contributory negligence; that the driver performed promptly and faithfully all his tasks; and that his injuries complained of were caused by this act of the bystanders, for which the company was not responsible. During the trial a motion for a nonsuit was submitted and overruled. The questions raised by the appellant are embraced within the general rule that brings them within the province of a jury. In Schierhold v. North Beach & M. R. R. Co. 40 Cal. 447, the court said: “ The fact of negligence is generally an inference from many facts and circumstances, all of which it is the province of the jury to find.....It is not the duty of the court in such cases, any more than in any other, to usurp the province of the jury, and pass upon the facts; and the nonsuit could only be granted in such cases where the evidence of the misconduct on the part of the injured party is so clear and irresistible as to put the case [50] on a par with those eases where a nonsuit is granted for a failure to introduce evidence sufficient to go to the jury, upon some point essential to the plaintiff’s case.” In Newcomb v. Boston Protective Department, 146 Mass. 604; 4 Am. St. Rep. 354, the court said: “ What is a contributing cause of an accident is usually a question for a jury, to be determined by the facts of the particular case; and such it has been held to be in many cases like the one before us.” Other cases to this effect are cited in the above and the following authorities, which have been consulted in pursuing this investigation: Jamison v. San Jose etc. R. R. Co. 55 Cal. 593; Franklin v. Southern Cal. etc. Road Co. 85 Cal. 70; Massoth v. Delaware etc. Canal Co. 64 N. Y. 532; McClain v. Broolkyn City R. R. Co. 116 N. Y. 467; Wells v. Railroad Co. 12 N. Y. Supp. 67; Langhoff v. Milwaukee etc. Ry. Co. 19 Wis. 489. What were the respective rights of appellant and respondent? In Schierhold v. North Beach & M. R. R. Co. supra, the court said: “ The drivers of street cars, through a densely populated city, ought always to have their teams under their immediate and absolute control, and are bound to drive in such a manner, if possible, as to injure no one.” Messrs. Shearman and Eedfield, in their treatise on Negligence, say: “But inasmuch as the injuries which are caused by a railroad car are more serious than those inflicted by most other vehicles, it seems that a greater degree of care should be required of car drivers than of most other drivers. They are bound to watch persons on the track, or approaching the same, and to stop in the shortest time possible, so as to avoid coming into collision with them.” (Vol. 2 [4th ed.], § 462.) In Moebus v. Herrmann, 108 N. Y. 352; 2 Am. St. Rep. 440, the court said: “A person on foot has, however, a right to cross the street where he pleases; and the inquiry is the same, whether, under the circumstances in any given case, he does so with due caution. .... The duty imposed upon a wayfarer at the crossing of a street by the track of a railroad, to look both ways, does not, as a matter of law, attach to such person when about to cross from one side to the other of a city street. The degree of caution he must exercise will be affected by the situation and surrounding circumstances. In the former case, there [51] is obvious and constantly impending.danger, not easily or likely to be under the control of the engineer; in the latter, the vehicles are managed without difficulty, and injuries are infrequent.” In Wright v. Malden etc. R. R. Co. 4 Allen, 290, the court said: “The exception taken to the admission in evidence of the city ordinance regulating the rate of speed of the defendant’s cars cannot be maintained. All persons traveling in the street would have a right to expect the ordinance to be observed, and to govern themselves accordingly.” In Hanlon v. South Boston etc. R. R. Co. 129 Mass. 311, the court said: “There'was evidence that the car which struck the plaintiff was driven at a speed prohibited by an ordinance of the city; .... and the jury were told, that if they were satisfied that the rate of speed exceeded that allowed by the city ordinance, such violation of the ordinance would be evidence, but not conclusive evidence, of negligence.” This instruction was approved, and the case was affirmed in Newcomb v. Protective Department, supra. These views are announced in other cases. (St. Louis etc. R. R. Co. v. Dunn, 78 Ill. 201; Faber v. St. Paul etc. Ry. Co. 29 Minn. 467; Liddy v. St. Louis etc. R. R. Co. 40 Mo. 520; Keim v. Union Ry. & Transit Co. 90 Mo. 321.) The instructions of the court, which covered fully every issue, are in accord with the foregoing authorities. The jury were instructed that the plaintiff must prove the negligence of defendant by a preponderance of evidence, or he could not recover. A satisfactory definition was given of “negligence” and “ contributory negligence.” The fifth, sixth, and seventh instructions were as follows:— “ 5. A man in attempting to cross a thoroughfare in a city is bound to exercise reasonable care and caution, so as to avoid injury; and, on the other hand, it is the duty of a street car company so to conduct its business and run its cars as to avoid, as far as practicable, by the exercise of ordinary prudence and caution, doing injury to pedestrians. The driver of a street car should keep safe control of his team, and his position should be such as to enable him to readily apply his brake. He should run at a reasonable rate of speed, and be vigilant in observing the track to the end that collisions may be avoided; [52] and it is the duty of a street railway company to employ servants who are fit and capable for the positions they are intrusted to fulfill. “6. To entitle the plaintiff to recover in this suit, it must appear from the evidence that the injury complained of was occasioned by the want of attention, carelessness, or negligence on the part of the defendant or its servants, as charged in the complaint, and was not simply the result of an accident; and if the jury believe, from the evidence, that the injury resulted from an accident which could not have been foreseen or guarded against by the exercise of ordinary and reasonable care and prudence on the part of the defendant, then the plaintiff cannot recover, and the jury should find for the defendant. “ 7. The rule of law is that a person is liable only for those consequences which flow naturally and directly from his acts, or which he could have foreseen or reasonably anticipated as the result of his conduct. Therefore, in this case, if the jury believe from the evidence that the plaintiff was struck down by the defendant’s car, and that in endeavoring to extricate him therefrom the persons so endeavoring had the car slip from their hold, whereby the car fell upon the plaintiff, and so caused the injury complained of herein, then the defendant is not liable for such consequence, and the jury should find for the defendant. But if you find from the evidence that he was struck down by defendant, acting negligently, through its servant, as defined in these instructions, or if you find that the plaintiff was injured by defendant’s negligence in not stopping its car sooner than it did after plaintiff was struck down, then the defendant would be liable in damages to plaintiff.” We have quoted these instructions because they express in a lucid and impartial style the law which should be applied to the evidence in the case. The jury decided by their verdict that the plaintiff used reasonable care and caution in trying to cross a public street upon this occasion; that the car was moving at a greater rate of speed than is allowed by the ordinance of the city of Helena; that the driver was not a suitable person; and 'that through the negligence of defendant the plaintiff had sustained serious injuries. We are of opinion that there was ample testimony to justify the conclusion of the jury. [53] It is ordered that the judgment and order overruling the motion for a new trial be affirmed. Harwood, J., concurs.