Norman v. Charlotte Electric Railway Co.

Walker, J., after stating the case: There was no error in denying the motion to nonsuit the plaintiff, and the exception to the submission of the third issue, which presents practically the same question, was properly overruled. Whatever may be the law in some of the other jurisdictions — and we concede that it seems to be radically and directly at variance with our rulings upon- this question — the law here has been well settled for many years, and we do not feel at liberty to disturb it, after it has been so firmly imbedded in our jurisprudence. The law as declared by some of the courts would make this, in one view of the facts, a clear case of concurrent negligence, upon the ground that the omission of the plaintiff to look and listen and the failure of the motorman to exercise care by looking ahead and to take proper precautions for avoiding danger and preventing collisions, were concurrent, or, as sometimes called, simultaneous acts of negligence, both of them having an equal chance and a fair opportunity of preventing the collision and the consequent injury to the plaintiff and his automobile, and both being bound to the same degree of care. But with us this is not so, under the facts and circumstances of the case. There is, to begin with, no possible analogy between a case growing out of an injury caused by a street railway car to a person rightfully upon the public thoroughfare and a case involving an injury inflicted hy a steam railroad train on a trespasser wrongfully upon the latter company’s right of way. And this is so because the citizen has the same privilege to use the street for travel that the street railway company has for propelling its cars thereon. The franchise to lay its rails upon the bed of the public street gives to the company no right to the exclusive use of that street, and in no respect exempts it from an imperative obligation to exercise due and proper care to avoid injuring persons who have an equal right to use the same thoroughfare. It is bound to take notice of, recognize, and respect the — 538 — right of every pedestrian or other traveler; and if by adopting a motive power which has increased the speed of its cars it has thereby increased, as common observation demonstrates, the risks and hazards of accidents to others, it must, as a reciprocal duty, enlarge to a commensurate extent the degree of vigilance and care necessary to avoid injuries which its own appliances have made more imminent. 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 carj but he is not a trespasser because upon the track; he only becomes one if, after notice, he negligently remains there. The company has the superior right to the use of its own tracks, as otherwise it could not use them at all'. If a wagon and a car meet going in opposite directions, the wagon must turn out, because the car cannot. If going in the same direction, the wagon must also get off the track, because the car cannot go around the wagon, and the public convenience requires a car to travel at a greater speed than the ordinary vehicle. But this superior right is not exclusive, and -will not justify the company in needlessly interfering with the convenience of the public, or excuse it from the consequences of its Own negligence. Where the wagon and car meet at right angles, either can stop long enough for the other to pass without serious inconvenience, and as the wagon must cross the track in order to proceed, it is said that under such circumstances the rights of the wagon are somewhat greater than between crossings, with a corresponding obligation resting upon the railway company to exercise greater care on account of the greater probability of meeting vehicles and pedestrians, with the increased risk of accidents. But this rule cannot be extended to interfere with the right of the public to cross the-track with reasonable care at any point that their convenience may suggest. The foregoing principles are supported by Moore v. Railway Co., 128 N. C., 456, and have been epitomized by us from that case, so far as the questions there decided are presented here and are pertinent to this discussion. If the motorman, W. N. Turner, saw the plaintiff’s car on the western track in front of his car, which was on the same track, and also knew that plaintiff, being forgetful of Ms duty and inattentive to his surroundings, was not aware of the apin’oach of the car, and, on that account, was making no effort to leave the track, and this knowledge came to him in time to prevent the collision, and he knew that a collision would occur if plaintiff did not leave the track in time to prevent it, unless the street car was itself stopped before reaching the automobile, it was his plain duty, according to our decisions, as soon as a collision became — 539 — probable, to slow down and bring bis car tinder control, so tbat be could stop, in order to prevent tbe catastrophe wbicb would inevitably happen if be proceeded'on bis way and plaintiff did not move bis automobile away from tbe track. If tbe motorman saw tbat tbe plaintiff bad evidently not looked and listened, and bad not heeded bis signal, if be gave one, and was, therefore, unconscious of bis danger and not likely to leave tbe track, it was incumbent on him to take reasonable precaution for bis safety; and as be bad tbe better opportunity of so acting as to prevent tbe collision, be is adjudged by tbe law, under tbe circumstances, to have bad tbe last clear chance of averting tbe injury, and tbe defendant, therefore, is tbe responsible author of it. A person on foot or in a vehicle has no right to cross a street in front of an approaching street car and take tbe doubtful chance of bis ability to cross in safety, if a prudent man would not do such a thing under similar circumstances; and if be does so, and is injured by bis own carelessness, tbe fault is all bis, and be cannot bold tbe company to any liability therefor. But tbe case we have is quite different, as here tbe plaintiff was seen by tbe conductor when backing, at a crossing, towards tbe western track on wbicb tbe car was moving; be was oblivious of bis dangerous surroundings, which might have been seen by tbe motorman if be was keeping a proper lookout, and be testified tbat be was doing so. It would seem to be just and humane to bold tbat, if such were tbe situation, and tbe jury afterwards found it to be so, tbe defendant should be held responsible, as having tbe superior chance to avoid tbe injury, though tbe plaintiff was also negligent, and grossly so. Such, anyhow, is our law. In Lassiter v. R. R., 133 N. C., 244, the intestate, A. E. Lassiter, was on tbe track of tbe defendant, attending to bis business of overseeing tbe shifting of cars, as an employee of tbe defendant. He was unconscious of tbe fact tbat a train was being backed towards him on tbe same track, by reason of tbe fact tbat bis attention was fixed on what be was then doing. There was no one on tbe leading box ear of tbe backing train to warn him of bis danger. Tbe Court first distinguishes tbe case from tbat of a pedestrian walking on a railroad track in front of an approaching engine or train, who is run over and injured, upon tbe ground tbat, being a trespasser, or even a licensee, be has no right to impede tbe reasonable use of tbe track by tbe company, and being apparently in possession of bis faculties, tbe engineer may fairly presume, even to tbe last moment, when it is too late to save him, tbat be will step off tbe track and save himself. It then proceeds to say: “In this case tbe intestate, according to tbe evidence of Thomason, was at a disadvantage; was not upon equal opportunities with tbe defendant to avoid tbe injury; for bis manner and conduct showed tbat be was oblivious to bis surroundings and was engrossed in tbe management of — 540 — his train and its hands. His actions showed that he did not hear the hell ringing. Now, if there had been on the backing box car a flagman, or watchman, he would have seen the intestate’s obvious absorption in his work and heard the efforts of Thomason to give him warning. The condition of the intestate was as helpless as if he had been asleep or drunk on the track, and the defendant owed him at least as high a duty as if he had been asleep or drunk.” And again, in the same ease, it was said: “The evidence was competent and fit to have been submitted to the jury upon the question of the last clear chance of the defendant— that is, whether if both the plaintiff and the defendant had been negligent, the, defendant could have prevented the death of the intestate by the use of means at hand or that reasonably ought to have been at hand. In Pickett v. R. R., 117 N. C., 616, the Court’said: ‘If it is a settled law of this State (as we have shown) that it is the duty of an engineer on a moving train to maintain a reasonably vigilant outlook along the track in his front, then the failure to do so is the omission of a legal duty. If by the performance of that duty an accident might have been averted, notwithstanding the previous negligence of another, then under the doctrine of Davies v. Mann, 10 M. and W. (Exch.), 545, and Gunter v. Wicker (85 N. C., 310), the breach of duty was the proximate cause of any injury growing out of such accident, and when it is a proximate cause the company is liable to respond in damages. Having adopted the principle that one whose duty it is to see does see, we must follow it to its logical results.” A careful reading of the Lassiter case will show that the Court regarded the intestate as having been grossly negligent in leaving a safe place for the performance of his work, and taking, instead of it, a most dangerous one on the track. The decision was put squarely on the ground that the defendant had the last clear chance to avoid the natural and probable effect of his negligence by the exercise of proper care in having some one on the leading car to give warning of the approach of the train, or to have it stopped, if need be, by signaling the engineer of danger ahead, and intestate’s position of danger was as apparent, although he was merely inattentive and unaware of the danger, “as if he had been asleep” or “drunk and down” on the track. The two cases are parallel. See, also, Smith v. R. R., 132 N. C., 819. If the motorman saw that the plaintiff did not hear or heed his signal, if given, the latter’s position was no less perilous than if he had been deaf and could not hear. He had no right to kill or injure plaintiff or to break up his automobile, even if he was careless, or even grossly negligent, provided he had a fair and reasonable opportunity to avoid it without injury to his passengers, and especially after seeing and appreciating the danger in going ahead with his car. — 541 — The doctrine of Lassiter’s case has been sustained by a long line of decisions in this Court. Clark v. R. R., 109 N. C., 444; Deans v. R. R., 107 N. C., 686; Smith v. R. R., 114 N. C., 734; Bullock v. R. R., 105 N. C., 180. Nellis on Street Surface Eailroads, at p. 300 (ch. Y, sec. 9), referring to the duty of a motorman with respect to travelers on the street, says: “Seeing a person driving along the road parallel with the track as though he had no intention of crossing it, he is not guilty of negligence because he did not anticipate that such person would suddenly turn across the track in the middle of a block. But if he sees the driver of a wagon in front of him does not look back, nor pay any attention to the ringing of the bell, nor increase his rate of speed, nor attempts to leave the track, it is his duty to bring his car under control, and even to stop, if necessary to avoid collision. He should stop his car at once upon seeing the wheels of a heavily loaded wagon in front of it slip on the track while the driver is attempting to get out of the way.” Hicks v. Railway Co., 124 Mo., 115, first lays down the proposition that persons in wagons and other vehicles have the undoubted right to pass over or upon street car tracks without hindrance. Yet the right of a traveler to drive a vehicle upon or along a street railroad track does not absolve him from the duty of looking for approaching ears. The cars can only move upon the tracks, and are used for the convenience of the public, and are consequently entitled to the right of way as to all others. It is, therefore, the duty of a traveler to give way to approaching cars so as to cause no unnecessary hindrance. Adolph v. R. R., 76 N. Y., 532; R. R. v. Isley, 49 N. J. L., 468; Wood v. R. R., 52 Mich., 402. The Court then proceeds to declare: “We are not able to say that the evidence shows conclusively that plaintiffs violated any of these rules, unless it was in driving upon the track without observing the cars, which must have been very near them. But that negligence was clearly not the proximate cause of the injury, for plaintiffs not only got safely upon the track without injury, but they were seen by the servants of defendant, and, by their timely action, a collision was then averted. After that, the conduct of the plaintiff could not be declared negligent as a matter of law. Whether they could have left the track more expeditiously than they did, and whether doing so would have avoided the injury, were questions for the jury. It seems to me that there was very little evidence tending; to show contributory negligence in the case; but we cannot say there was none. Defendant’s gripman saw plaintiffs in their dangerous and exposed situation, and the chief question is whether, after that, he acted with due care towards them. Hanlon v. R. R., 104 Mo., 389, and eases cited.” The facts there were not substantially unlike those in the case at bar. — 542 — The case of Hanlon v. R. R., 104 Mo., 389, which was cited in the Hides case, is so much in. point and expresses our views so aptly that we are fully justified in quoting from it liberally. It states the contention of defendant in this case and conclusively answers it, and in perfect accordance with the- reasons we have heretofore given, which, moreover, are sustained by our own cases. The Court there says: “It is insisted that, although the signals were not given, and if they had been given the injury have been averted, still the negligence of plaintiff himself, in not observing the common prudence of looking out for his own safety, concurred with that of defendant, and the injury resulted on account of the concurring negligence of both, and for that reason debarred plaintiff from recovery. It is well settled by authority, as well as enjoined by the common dictates of prudence, that one going upon the track of a railroad should observe all such precautions for his own safety as reason and prudence dictate; and if disaster comes upon him by reason of a failure to do so, he must bear the consequences. This rule has, however, a qualification which is founded upon principles of humanity and is universally recognized. This qualification enjoins upon the railroad company the duty of using all reasonable efforts to avoid injury to one who has negligently placed himself in a position of danger, if the peril is known, or, under certain circumstances, by reasonable care might have been known. A failure to observe this requirement renders the company liable, notwithstanding the previous negligence of the person injured. The rule and the qualification of it require precautions to be observed by both the railroad company and the traveler, when using, a public highway in common. The precautions to be used- by each must necessarily vary, with varying circumstances, and no positive rule can be laid down which can be made a test in every case. One rule for their mutual government is imperative, which is the duty and obligation for each to watch for the presence of the other, one to avoid being injured, the other, to avoid causing injury. The railroad company must give some regard to the known imprudence of mankind, and not content itself with the mere obedience to the law requiring signals to be given; and the traveler must, in like manner, take precautions for his own safety, and not depend entirely upon the railroad company to protect him, or give him timely notice of danger,” citing Yancey v. R. R., 93 Mo., 436; Rine v. R. R., 88 Mo., 396; Kimes v. R. R., 85 Mo., 611, and numerous other cases in support of the several principles announced. There are other reasons for denying the motion to nonsuit or for the withdrawal of the third issue. There was evidence that the street car was being run at a greatly excessive speed, in violation of the city ordinance fixing the maximum at 15 miles per hour, whereas the speed of the car was 25 miles an hour. This was, at least, evidence of negli — 543 — gence, as decided in Davis v. Traction Co., 141 N. C., 134, and prevented tbe judge from taking tbe case away from tbe jury by a nonsuit or a directed verdict. Tbis very question was settled against tbe street cár company in tbat case. Justice Connor there said, at p. 140: “It is undoubtedly true tbat if a car is moving at a lawful — tbat is, not excessive — speed, and a person enters upon tbe track, tbe defendant is required to use ordinary care, give tbe signals, lower tbe speed, and, if it appears reasonably necessary, stop tbe car. If tbe car is properly equipped and tbe equipment used witb reasonable promptness and care, tbe defendant will not be liable for an injury sustained. If, however, tbe car is moving at an excessive speed — tbat is, a speed in excess of tbat prescribed by tbe city ordinance — and by reason of such excessive speed tbe signals cannot be given or tbe appliances used by tbe exercise of ordinary care, tbe defendant will be liable for an injury, and tbis for tbe reason tbat it has, by tbe excessive speed, brought about a condition which it cannot control. It was therefore proper for bis Honor to modify tbe instruction by inserting tbe words, ‘and tbe car was not running faster than 14 miles an hour.’ Tbis gave tbe defendant tbe benefit of tbe principle invoked, unless tbe jury found tbat tbe speed was excessive. Tbis Court has held, in accordance witb many others, tbat speed in excess of tbat prescribed by tbe ordinance is at least evidence of negligence, and bis Honor so instructed tbe jury. Edwards v. R. R., 129 N. C., 78.” And again, at p. 142: “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 14 miles an hour; to equip tbe ear witb signals and means of controlling it — bringing it to a stop when necessary.” Tbe decision clearly recognizes tbe principle tbat, as tbe car must run on tbe track or not at all, and tbe citizen on foot or in a vehicle of any kind can so easily and promptly change bis course, and use for bis purpose tbe spaces of tbe street between tbe tracks and tbe curb, be must, in tbe exercise of due care, give way to tbe car in order to prevent a collision; but tbe Court also says tbat tbis does not excuse tbe negligence of tbe street car company if it runs into tbe citizen or bis vehicle and injures him or bis property when, after seeing bis perilous position, or when it could have been seen witb tbe exercise of due care, it fails so to act in tbe control and management of tbe car as to cause him injury, provided it bad time to prevent it by,the exercise of such care; and upon tbis question tbe jury have tbe right to consider whether by tbe excessive speed or other previous negligent act it bad deprived itself of tbe ability to save him or bis property. What was done by tbe plaintiff in tbe operation of bis automobile and what by defendant in tbe running of its car were questions for tbe jury upon tbe vital issue as to who bad tbe last clear chance to avoid tbe — 544 — final catastrophe. Plaintiff’s negligence, which we admit was gross, did not forfeit his right to be treated by defendant with ordinary consideration and humanity. The motorman could not drive the ear upon his automobile, smash it up and injure him, simply because he happened to be upon the track, all unconscious of his dangerous position. It was for the jury to say, upon all of the evidence, whether the plaintiff saw the approaching car in time to clear the track, and whether the defendant’s motorman had reasonable grounds to believe that he did, and that he would turn from the track before the car could reach him, or whether the motorman knew, or should have known, that he was not aware that the car was coming, and, therefore, was not likely to get out of the way. If they found the facts last stated, then it became the duty of the motorman to give proper signals and to so operate the car with due care as to prevent injuring him or his automobile; and in this view it had the last clear chance. We think that, in this respect, our view may be reconciled with the cases cited by defendant’s counsel from courts in other jurisdictions. The only instruction requested was not a correct one, and was, therefore, properly refused. The liability of defendant, under the doctrine of the last clear chance, did not depend upon the “cessation or culmination of plaintiff’s negligence.” What is meant by the quoted expression, which is used in the instruction, we suppose to be that plaintiff’s negligence must -have spent its force, or have become dormant or inactive. But this was not necessary to constitute the defendant’s negligence the proximate cause of the injury. The very fact that the plaintiff, in the presence of danger, continued to be negligent, and in apparent ignorance of the danger with reference to the car, but increased the duty of the defendant’s motorman to be on his guard and to adjust his conduct to that situation by lessening the speed of the car, bringing it'under control and generally placing himself in a state of readiness to stop, should it be necessary to do so. He should have prepared for the natural and probable eventuality, in view of the plaintiff’s persistent neglect of his own safety. This is the common sense and the justice of the case, when looked at from any angle of vision. Nor do we think it was a vital error, if error at all, for the court to have said, as it did say, in defining proximate cause with reference to “the last clear chance,” that proximity in point of time and space is no part of the definition. He properly defined proximate cause as that which, in natural and continuous sequence, unbroken by any new and independent cause, produces the result, and without which it would not have occurred, and from which a man of ordinary prudence could have foreseen that such a result was probable under all the circumstances as they existed and were known or should, by the exercise of due care, have — 545 — been known to bim. Sb. and Redf. on Neg., secs. 25 and 28; Kellogg v. R. R., 94 U. S., 469; Ins. Co. v. Boon, 95 U. S., 117; Ins. Co. v. Tweed, 74 U. S. (7 Wall.), at p. 52; Brewster v. Elizabeth City, 137 N. C., 392; Ramsbottom v. R. R., 138 N. C., 38, and Ridge v. R. R., ante, 510, where tbe subject is fully discussed. In Ins. Co. v. Boon, supra, tbe Court thus defined it: “Tbe proximate cause is tbe efficient cause, tbe one that necessarily sets tbe other causes in operation. Tbe causes that are merely incidental or instruments of a superior or controlling agency are not tbe proximate causes and tbe responsible ones, though they may be nearer in time to tbe result. It is only when tbe causes are independent of each other that tbe nearest is, of course, to be charged with tbe disaster. A careful consideration of tbe authorities will vindicate this rule.” And again, quoting from Brady v. Ins. Co., 11 Mich., 425, it says: “That which is tbe actual cause of the loss, whether operating directly or by putting intervening agencies, tbe operation of which could. not be reasonably avoided, in motion, by which tbe loss is produced, is tbe cause to which such loss should be attributed.” Phillips on Insurance, sec. 1097, referring to Gordon v. Rimmington, 1 Camp., 123, thus deals with tbe question: “Tbe maxim causa próxima spectatur affords, no help in these cases, but is, in fact, fallacious; for if two causes conspire, and one must be chosen, tbe more scientific inquiry seems to be, whether one is not the efficient cause, and the other merely instrumental or merely incidental, and not which is nearer in place or time to the consummation of the injury.” And in R. R. v. Kellogg, supra, the Court says: “The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib thrown in the marketplace. 2 Blk. Rep., 892. The question always is, Was there an unbroken connection between the wrongful' act and the injury — a concatenated operation? Did the facts constitute a continuous succession of events, so linked together as to. make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause, the — 546 — original wrong must be considered as reaching to the effect and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury. Here lies the difficulty.” We may, though, safely rest our decision of this case upon Wheeler v. Gibbon, 126 N. C., 811, where a man driving a buggy in the direction towards which a heavy rain was being driven by a high wind up Tryon Street (the same one mentioned in this case), and ran into Mr. Wheeler, the plaintiff, who was crossing with his umbrella over his head to protect him from the rain. The present Chief Justice there said, and it fully covers this case: “Could the defendant, by the exercise of ordinary care, have avoided the injury to the plaintiff, notwithstanding the negligence of the plaintiff? This was the crucial issue of fact, and was peculiarly for the consideration of the jury, for we cannot agree with the appellant that the court could instruct the jury that on such a state of facts, in law, the proximate cause of injury was due to the plaintiff. That is the very fact which the jury, not the court, must determine. The negligence may have been concurrent, or the last negligence may have been the plaintiff’s, ■or notwithstanding the negligence of the plaintiff the defendant could, with the exercise of ordinary care, have prevented his horse striking, and his conveyance running over, the. plaintiff. The jury, and they alone, were competent to determine the fact, for there was evidence for their consideration. The plaintiff was crossing, with his head tucked behind his umbrella. This was negligence. The defendant was driving rapidly, ‘10 miles an hour, or at top of his speed,’ and with his oilcloth up in front of the buggy; and this was negligence. He was driving in the same direction with the storm, and was in a vehicle, and therefore could keep a better lo'okout. Then his horse and vehicle could do damage to a foot passenger — and did — while the foot passenger was not likely to run into him and do damage, and the defendant should have kept a lookout correspondingly careful to avoid injury. The jury under proper instructions have found that if the defendant, himself driving negligently, had used ordinary care, he could have seen the plaintiff negligently crossing the street in a pelting storm with his head hid behind his umbrella, in time to avoid running over him. This was a pure question of fact, and the Court cannot review it.” But the defendant’s negligence in our case was the active, efficient, and predominating cause of the injury, and also was the last in point of time, if it was guilty of any negligence, and the jury have found that it was, upon evidence that reasonably supports the verdict. It follows that no error was committed in the trial of the case. No error.