Capital Traction Co. v. Apple

Mr.. Chief Justice Shepard delivered the opinion of the Court: 1. We are of the opinion that it was not error to refuse to direct the jury to find for. the defendant, and shall not consume time with a review of the evidence. If the defendant’s car was being run at an unlawful rate of speed it was for the jury to say whether that was the proximate cause of the injury. That plaintiff’s intestate did not stop, look, and listen before crossing the track in a city street would not warrant the conclusion of contributory negligence as a matter of law. City & Suburban R. Co. v. Cooper, 32 App. D. C. 550-557; Capital Traction Co. v. Lusby, 12 App. D. C. 295-302; Consolidated Traction Co. v. Haight, 59 N. J. L. 577-581, 37 Atl. 135; Marden v. Portsmouth, K. & Y. Street R. Co. 100 Me. 41-47, 69 L.R.A. 300, 109 Am. St. Rep. 476, 60 Atl. 530. 2. In stating the case, we have given the substance of the — 567 — defendant’s refused instructions, on each of which error has' been assigned. They are too lengthy and numerous to be set out in full. The learned trial justice, refusing the instructions generally, undertook to embrace in his charge all of the law applicable to the facts of the case. He embodied some of the propositions contained in the refused instructions, stating some differently and qualifying others. Some were altogether ignored. Having given the first instruction asked by the plaintiff, relating to the unlawful speed of the car as constituting negligence, the court elaborated the same, telling the jury that if they found the car was being run at a greater rate of speed than 15 miles per hour, and by reason thereof struck the plaintifE while lawfully and properly crossing the track, defendant would be negligent, as a matter of law, and liable; if not running with unlawful speed, it would not be liable. There- was no error in this. It is the settled doctrine of this Court that if the jury can fairly find from the evidence that, without contributory negligence on the part of the injured person, the neglect of a statutory duty was the proximate cause of the injury, negligence exists as a matter of law. Clements v. Potomac Electric Power Co. 26 App. D. C. 482-500, and cases there cited; City & Suburban R. Co. v. Cooper, 32 App. D. C. 550-555. 3. The court next took up the question of the contributory negligence of plaintiff’s intestate, and the jury were plainly told that, notwithstanding the defendant may have been negligent, the plaintiff could not recover therefor, if his intestate failed to exercise the care of an ordinarily prudent man at the time, and thereby helped to cause the accident. It was further charged as follows: “He was bound to conduct himself as a careful, prudent man in the circumstances. It was his duty not to put himself unnecessarily in a position of danger. If he did voluntary do so, or carelessly do so, then the result is be attributed to his careless act. Was he careless? First, did he see the car before it was just upon him? When he started ta cross the track, did he know that a car was coming ? There — 568 — is evidence that has been freely commented on here that he paused and looked up the track in the direction of this approaching car. Did he see it? If he did, where was it when, he saw it ? That is a question of fact for you. Where was it ? How fast was it coming at that time ? And how fast was it appearing to him to be coming at that time ? He was bound to look at it as a reasonable and prudent man in his circumstances. Now was it so far away, and did it appear to him, and reasonably- appear to him, to be coming at such a rate that he had ample time to go across, so that any reasonably careful and prudent man would go across, thinking he was perfectly safe in doing so ? Or, was. it so near to him, and coming at such a rate, that any ordinarily prudent and careful man would say: T must stop; I must not try to cross now; the car will be past in a moment.’ Which was the situation ?” The jury were-further told to consider the evidence relating to the party’s intoxication; it might help to explain how the accident happened ; but if intoxicated, the fact would not prevent his being responsible,, like a sober man, for his want of care. The court then further proceeded as follows: “Treating him as a sober man, in the possession of his faculties as a sober man, and looking up that track, put yourself right in the position in which he was. Consider how far off the car was; how far he needed to step to be across the track; and remember, as you have a right to do and are bound to, that the lawful rate of speed there was 15 miles an hour. He had a right to take notice of that fact,-—that the lawful rate of speed was 15 miles an hour; and he had a right to take it for granted that it was not more than 15 miles an hour (that is, that the car was not approaching him at a greater rate of speed than 15 miles an hour), unless he saw that it. was,—unless he saw that the circumstances were such that, as a reasonable man, as a prudent and careful man, he ought to have noticed that it was coming faster than that. You will probably be able, when you think the evidence all over, .to put yourself right in the position in which he was, and ask yourself the question whether, as a prudent, careful, sober man, standing in. the position where. — 569 — be stood when be first saw tbe ear, when be first attempted to cross, be was acting tbe part of a careful and prudent man in attempting to go over the track. If be was not, then that is the end of the case, and the defendant is entitled to a verdict. “Suppose he did not see the car. Suppose he did not look to see whether a car was coming or not. That would be negligence, as a matter of law, on his part. It was his duty to look. The track there itself was a signal and a notice to him that cars were passing there every now and then. He knew that, of course; and the law charged him with knowledge that a train was liable to be passing there at almost any time. . So that it was his legal duty to look and listen before he attempted to go . over the track. So that if you find he did not look, and did not take any pains to look and notice whether a car was coming or not, that was an act of carelessness on his part; and if that was why he was struck, if that partly contributed to the accident, then neither he nor his representative could recover against the defendant. “But, as I say, the case has been put on the theory that he did look up, and did see. Both sides have argued the case on that theory; and I dwell more particularly upon that phase of the ease, and so come back to the point again: When he did look up and see the car, where was it? How fast did it appear to him to be coming ? As a reasonable, sober, prudent man, looking in that direction and seeing the car, was there anything about it to make him think that it was moving faster than 15 miles an hour ? If so, then he was bound to act according to the dictates of care and prudence with reference to that fact. But if there was not anything to indicate to him as a reasonable and prudent man that it was coming faster than the lawful rate of speed, and he attempted to go over the track, was he careless in doing so ?” It is common knowledge that the conditions attending the operation of ordinary steam railways across country highways, and even city streets, and those attending the running of electric cars along the streets of an ordinary city, are essentially different. The former run at considerable intervals, have much longer and heavier trains, and are not easily brought to a stop. — 570 — The latter run with frequency,—car following car in rapid succession,—are always in more or less crowded streets, and can be stopped quickly. The exigencies of daily traffic, and the needs and conveniences of individuals, result in constant crossing of street railway tracks both at and between street crossings. Knowing this, those engaged in running the street cars are under a duty to exercise ordinary care to prevent running over vehicles and pedestrians. These latter must also exercise due care in looking out for coming cars, and must not recklessly expose themselves to danger. No fixed rule can be laid dofvn for the government of every case that arises. What is due care must depend upon the circumstances of the particular case. Surely, one seeing a car coming a considerable distance away is not bound to stop and wait for it to pass. If such were the rule one could rarely cross a street, without being guilty of negligence, where cars follow each other at short intervals. If one sees a car very near and takes the mere chance of crossing ahead of it, and fails in his calculation, he náay well be held to be the victim of his own carelessness. But if the car is some distance away, and the conditions are such that an ordinarily prudent person might reasonably believe that he could cross in safety, the act of crossing would not be negligence. McQuisten v. Detroit Citizens’ Street R. Co. 147 Mich. 67-69, 110 N. W. 118; Ryan v. Detroit Citizens’ Street R. Co. 123 Mich. 597—598, 82 N. W. 278; Detroit United R. Co. v. Nichols, 91 C. C. A. 257—264, 165 Fed. 289. If, however, in such a case, the car is proceeding within the lawful rate of speed, and the driver, when he sees that the crossing party is in danger, makes a reasonable effort to avoid running over him, the car company would not be liable for negligence. There could be no recovery because of the absence of negligence on the part of the defendant. One about to cross a street car track, in the absence of cir cumstances sufficient to indicate the contrary at least, has the right to assume that it [an approaching car] is not exceeding, and will not excede the rate of speed limited by the municipal ordinances. City & Suburban R. Co. v. Cooper, 32 App. D. C. — 571 — 550-557; Metropolitan R. Co. v. Hammett, 13 App. D. C. 370-379; Chunn v. City & Suburban R. Co. 207 U. S. 302—309, 52 L. ed. 219-222, 28 Sup. Ct. Rep. 63. Of course if the party saw, or ought to have observed, under the circumstances, that the car was moving with excessive speed, ordinary prudence would require him to be more cautious; and the jury were so told. Aside from the duty imposed by law not to exceed a certain rate of speed, it is the duty of the car operator to keep a diligent lookout ahead so that the car may he stopped in time, if possible, to avoid injury to one who may be crossing ahead of him. Baltimore Traction Co. v. Helms, 84 Md. 515-526, 36 L.R.A. 215, 36 Atl. 119; New Jersey Electric R. Co. v. Miller, 59 N. J. L. 423-425, 36 Atl. 885, 39 Atl. 645. If, as the testimony tends to show, another step would have carried plaintiff’s intestate to a place of safety, then it is-not unreasonable to believe that, if the car was running at double the lawful and usual rate of speed, his injury was attributable to that fact alone. It was properly left to the jury to determine whether the car was moving with excessive speed, and whether the plaintiff’s intestate ought reasonably, under all the circumstances, to have known that such was the case. United R. & Electric Co. v. Watkins, 102 Md. 264—269, 62 Atl. 234; New Jersey Electric R. Co. v. Miller, supra. 4. In the event that they should find that plaintiff’s intestate was guilty of contributory negligence, the jury were charged to inquire whether, notwithstanding such negligence, the motorman, after seeing his imminent danger, could have prevented the injury by the exercise of due care. And they were charged that if the motorman saw the dangerous situation of plaintiff’s intestate in time to have averted it by the use of ordinary care, the plaintiff would nevertheless be entitled to recover. The law was correctly stated. Capital Traction Co. v. Divver, 33 App. D. C. 332—336. We have only given the substance of this charge, because the question is of no practical importance inasmuch as the jury expressly found that there was no contributory negligence. Moreover, the charge, as — 572 — given, is not substantially different from the instruction asked by the defendant. 5. As bearing on the question of negligence on the one hand, and contributory negligence on the other, and in view of special instructions asked by defendant, it is necessary .to consider another part of the charge. The paragraph referred to reads as follows: “It has been said, and it is true, that the defendant company had the right of way over its tracks. It had the first right to occupy those tracks, provided it was occupying them in a lawful way. It had the'superior right as between the defendant company and the decedent. When the time came for the car to move down there, it had the right to move along there, and it was the decedent’s duty to keep off and let the car pass. It was his duty not to interfere with it in any way. But that assumes that the car was moving at a lawful rate of speed. It does not mean that the defendant company had a right to run cars down there at the rate of 30 miles an hour, as some of the evidence has tended to show that this car did. It had not a superior right to the use of the track for that purpose. But if it was operating within the law, then the superior right was the right of the defendant. “On the other hand, the decedent had a right to cross the track under proper limitations. He could not get to his home without crossing it, apparently; he was on the other side of it, so that he had a perfect right to go across there if he went across as a careful and prudent man would, with due regard to the superior right of the defendant to use the track in a lawful way. You see, both of these parties,- accordingly, had a right to occupy that street with certain limitations, each conducting himself lawfully and properly. That is to say, in other words, the fact that this was not a regular street crossing does not of itself prevent the plaintiff from recovering.” We are of the opinion that the court did not err in this charge, or in refusing the special instructions on the point that were prayed by the defendant. As indicated in the charge, a street ear company has a preferential right of way over its — 573 — own tracks, which all persons, under ordinary conditions, must respect. In case of wilful obstructions or hindrances, the law provides a remedy. At the same time, the streets occupied by tracks are open to all proper uses of the people, who are frequently compelled to cross, or to briefly occupy, the tracks in going to and from their homes and about their daily business. The railway company has no exclusive right to the use of the parts of the streets occupied by its tracks. Railway and people alike must exercise their respective rights with due regard to the rights of each other. They must exercise reasonable care, under the circumstances of each particular case. Eckington & S. H. R. Co. v. Hunter, 6 App. D. C. 287-310; City & Suburban R. Co. v. Cooper, 32 App. D. C. 550; Mertz v. Detroit Electric R. Co. 125 Mich. 11—14, 83 N. W. 1036; Oates v. Metropolitan Street R. Co. 168 Mo. 535, 58 L.R.A. 447, 68 S. W. 906; Marden v. Portsmouth, K. & Y. Street R. Co. 100 Me. 41-45, 69 L.R.A. 300, 109 Am. St. Rep, 476, 60 Atl. 530; Baldie v. Tacoma R. & P. Co. 52 Wash. 75, 100 Pac. 162; United R. & Electric Co. v. Watkins, 102 Md. 264-267, 62 Atl. 234. The special instruction asked by the defendant asserted an exclusive right in the railway company, and ignored the fact that its use of its right of way was limited by the speed regulation. 6. The last assignment of error that we think important to separately consider is on exceptions taken to the refusal of defendant’s ninth special instruction. It was, substantially, that if a person be seen upon the track of a street railway, who is apparently aware of the approach of a car thereon, and who is also apparently capable of taking care of himself, the car operator has the right to assume that such person will leave the track before the car reaches him, and this presumption may be indulged so long as the danger of injuring him does not become imminent; and it is not necessary to diminish the speed of the car until such danger becomes imminent. Instead, the court charged the jury as follows: “There are some other principles that I am asked to call to your attention. I said to you that the decedent had a right, — 574 — unless there was something to call his attention to the contrary, to assume that the car was moving at the lawful rate of speed or within it. In the same way it was the right of the motorman to assume, until there was something to call his attention to the contrary, that this man, if he saw him there, would act as a sober and prudent man would act. If he saw him right beside the track, and saw that he saw the car coming, he had the right to assume that he would not cross the track immediately in front of the car when the car was right upon him, or when there was great danger of his being struck by it. If the man apparently looked up and saw the car, so that the motorman, as a reasonable and prudent man naturally thought and did think that he saw the danger, saw that the car was coining right along, the motorman had a right to assume that he would not try to cross. But if he saw that he was about to cross in spite of "that, no matter how careless he was in doing so, then it was his duty to do all that he could to save that' man’s life by the use of any reasonable means within his power.” This substituted charge contains all, and possibly more than the defendant was entitled to have given the jury. It may be granted that when a street car is moving within the lawful speed limit, the operator may reasonably assume that persons on or near the track, under the conditions stated in the refused instructions, will get out of the way, but as in crowded streets, amid other diversions, there is danger of running over persons who may be more or less negligent of their safety, it is the duty of the operator to have his car under ready control so that it may be readily stopped when the danger is found to be imminent. New Jersey Electric R. Co. v. Miller, 59 N. J. L. 423-425, 36 Atl. 885, 39 Atl. 645; McDermott v. Severe, 25 App. D. C. 276—287, and cases there cited. In the last case cited it is true that the parties on the track were children, but the principle that requires the car to be under proper control is one of general application. -Even if the principle contained in the refused instruction were a sound one, it could have no application to a case where the car was being run at a rate of speed prohibited by law. That it was so running was found — 575 — by the jury, because they had been charged that unless they so found the plaintiff could not recover at all. Instead of “drifting” down a steep grade in a main thoroughfare, with his brakes off, the operator should have restrained his car within the lawful rate whether anyone could be seen on the track, or not; and, for a stronger reason, he should have reduced his speed when he saw a person about to cross the track, who might have had ample time to do so in safety had the speed not been greater than the law permitted. While we have not discussed each and every assignment of error, there is none that has not been considered. We find no error in the giving or refusing of instructions to the jury, and the judgment, will therefore be affirmed, with costs. Affirmed.