Smith v. City Railway Co.

Opinion by Mr. Justice Bean. 1. The plaintiff claims and alleges that her injury was caused by the negligence of defendant in running its cars at a dangerous and unlawful rate of speed, in not giving timely signals of its approach to the street crossings, and in not providing the car with suitable brakes. The defendant denies these allegations of negligence on its part, and avers that the injury was caused solely by the plaintiff’s own negligence in attempting to cross the track without looking or listening for the approaching car. — 542 — There was sufficient evidence to go to the jury on the question of defendant’s negligence, and the principal question on this appeal is the alleged error of the trial court in refusing to instruct the jury that “If plaintiff failed to look to see if a car was approaching before she attempted to cross the track, and by reason of such failure stepped upon the track, and was struck by an approaching car, which she could have seen and avoided by looking, then she was guilty of contributory negligence, and can not recover in this action.” That this proposed instruction is good law, under the facts of this case, it seems to us can admit of no reasonable question. Counsel for plaintiff seek to justify the rulings of the trial court by claiming that the imperative rule for railway crossings, that a traveler must look and listen, is not applicable as a hard and fast rule to crossings of street car tracks in the public streets of a city, but the question of care in such cases is always for -the jury. Upon this subject there is some conflict in the decisions, but the doctrine which seems to be supported by authority and reason, at ' least with reference to electric and cable railways, is that “it is presumptively negligent on the part of a pedestrian to attempt to cross the track without looking or listening, when, if he had looked and listened, he could have discovered the approach of the car in ample time to avoid injury”: Booth on Street Railway Law, § 312; Fenton v. Second Avenue Railroad Company, 126 N. Y. 625 (26 N. E. 967); Meyer v. Lindell Railway Company, 6 Mo. App. 27; Scott v. Third Avenue Railway Company, — 543 — 16 N. Y. Supp. 350; Davenport v. Brooklyn City Railway Company, 100 N. Y. 632 (3 N. E. 305); Carson v. Federal Street Railway Company, 147 Pa. St. 219 (23 Atl. 369, 30 Am. St. Rep. 727, 15 L. R. A. 257); Buzby v. Philadelphia Traction Company, 126 Pa. St. 559 (17 Atl. 895, 12 Am. St. Rep. 919); Sheets v. Connolly Street Railway Company, 54 N. J. Law, 518 (24 Atl. 483); Schulte v. New Orleans Railway Company, 44 La. Ann. 509 (10 So. 811). This doctrine is but an application of the universal rule which requires due and ordinary care in crossing a public street as in all other transactions of life. It is manifestly dangerous for a pedestrian about to cross a street car track to omit to exercise his ordinary senses, and a failure to do so is everywhere regarded as negligence on his part. He may not be required to stop, look, and listen before crossing, but it is certainly necessary for him to look where he is going, unless there is something in the circumstances of the case or in his surroundings which will excuse him. “ Even on the sidewalk, specially devoted to the use of foot passengers,” says Mitchell. J., “ a man is bound to look where he is going, and this duty is still more imperative when he is about to cross the middle of the street, where horses, wagons, and cars have equal rights with himself, and where lie is bound to take notice of such other rights, and to use his own with due regard thereto ”: Buzby v. Philadelphia Traction Company, 126 Pa. St. 559 (17 Atl. 895, 12 Am. St. Rep. 919). In the case before us there was nothing in the facts to excuse the plain — 544 — tiff from exercising her senses. The accident occurred in the daytime, at a place where the view of the track was not obstructed for a space of three or four blocks, except where the car from which she had just alighted would obstruct the vision, and if she had waited until the car moved on, she would have had an uninterrupted view of this space. She did not do so, but according to her own statement, passed hurriedly along and around the rear end of the car, across the space between the two tracks, from which the approaching car could readily have been seen, and on to the track immediately in front of the car. If she did all this without looking to see where she was going, or whether a car was approaching, she was guilty of such contributory negligence as will in our opinion bar a recovery, and the jury should have been so instructed, even if it be conceded that it may not be negligence in all cases for a pedestrian to attempt to cross a street car track without looking and listening for approaching cars. 2. The defendant also requested the court to instruct the jury that the relation of passenger and carrier ended when the plaintiff had safely landed from the car, and thereafter the defendant owed her no duty other or different from that which it owed to any other pedestrian on the street. The court refused to give this instruction, and charged the jury that, as a general rule, “ the duty of the carrier is completed when he takes a passenger to the point of destination and stops a sufficient time — 545 — to allow him to alight and free himself from the car and track of the carrier, and until such relation of the passenger and carrier ceases it is the duty of- the carrier to use the highest degree of care and diligence to protect the passenger from injury, and to land him safely at his destination. And if you find from the evidence that the plaintiff had not been properly landed by the defendant, and freed from the car or track upon which she was a passenger, then it was the duty of the employes of the defendant upon the car in which she was a passenger to use all reasonable means to prevent the car coming in the opposite direction from running upon or striking her or doing her injury, and if they neglected their duty in that respect, and the injuries of plaintiff were occasioned thereby, the defendant would be liable, and your verdict should be for the plaintiff.” By this instruction the jury were left to determine as a matter of fact whether the relation of passenger and carrier existed at the time of the accident, although the pleadings and evidence both show,— and about this there is no dispute, — that plaintiff had alighted from the car in a place of safety, and had started on her journey across the street, before she was struck by the car going east. Under the facts thus admitted, she was clearly not a passenger when the accident occurred, and the court should have so instructed the jury. The relation of passenger and carrier ceased when she alighted from the car, and thereafter the defendant owed her no other or different duty than it owed to any other ordinary — 546 — traveler: Booth on Street Railway Law, § 326; Creamer v. West End Street Railway Company, 156 Mass. 320 (16 L. R. A. 490, 31 N. E. 391, 32 Am. St. Rep. 456); Buzby v. Philadelphia Traction Company, 126 Pa. St. 559 (17 Atl. 895, 12 Am. St. Rep. 919). A public street is in no sense an approach or passenger station for the condition or safety of which a street railway company is .responsible; and when a passenger steps from a car to the street he becomes a mere traveler upon the highway, and the company is not responsible to him as a carrier for his safety thereafter. Under the pleadings and the admitted facts, the plaintiff had ceased to be a passenger before the accident occurred, and the case presented is that of an ordinary traveler upon the highway. There are several other errors assigned in the record, but it is thought unnecessary to consider them at this time, as a new trial must be ordered. Decided November 9, 1896. Reversed.