Capital Traction Co. v. Crump

Mr. Chief Justice Shepard delivered the opinion of the Court: 1. The recital of the evidence in the bill of exceptions consists in great part of questions to and answers by witnesses as recorded by the stenographer on the trial. This too common practice is in opposition to rule 5. We have heretofore called — 174 — attention to this practice, and suggested that the court would exercise its power to disregard a bill of exceptions not in conformity with the rule. District of Columbia v. Frazer, 21 App. D. C. 154 — 160. No motion to strike out has been made, and the bill will be entertained. The rule will be hereafter more strictly observed. Sometimes there are conditions which render question and answer important to the elucidation of a particular circumstance, or the appraisal of the value of a particular witness. Their recital would not then be in violation of the rule, but care should be taken not to go beyond the exceptions stated. We have stated the evidence sufficiently to show the bearing of the instructions given to the jury on one hand, and refusal on the other, on which errors have been assigned. These are thirty-three in number, but they can be considered under a few propositions. 2. The first assignment of error is on an exception taken to a question asked by the court of the defendant’s witness, Jim Hidgeley. The testimony of this witness occupies considerable space. He varied in some particulars from all of the other witnesses, and his statements were in some respects confused. Several questions were asked him by the presiding justice, in answering which he addressed the latter as “Captain.” The justice then asked: “Have you been drinking?” Counsél for the plaintiff then made inquiries as to his drinking during the day, to each of which he answered no. Defendant’s counsel then moved to strike out questions and answers, including the question propounded by the court. The motion was overruled. In settling the bill the court stated that, when the question was asked, the court was of the opinion that the witness “had not only been drinking, but was plainly intoxicated.” We see nothing in this recital showing an excess of the latitude that may be indulged in the examination of witnesses and the preservation of decorum, much less anything clearly prejudicial to "the de-■ fendant. The conditions are very different from those shown in the case of Ruppert v. Wolf, 4 App. D. C. 556, on which appellant relied. — 175 — 3. The next assignment of error is on the giving of the following instruction to the jury at the request of the plaintiff: “The jury are instructed that the whole of Seventh street, from curb to curb, is a public highway, and that the permission given to the Capital Traction Company to lay rails and to run cars thereon does not take away from the portion of the street so used the character of a public highway, or give the company an exclusive right to the use of such portion of the street; but that the public using other vehicles may use the space beside the rails and between the rails and the rails themselves whenever the necessities of traffic so require, and when they are not occupied by a car of such company passing or about to pass; and that, with the exception that such cars, since they cannot, like other vehicles, pass around vehicles in front of them, and therefore must give timely notice of their approach to vehicles in their way in order that such vehicles may get out of their way, such cars are subject to the same requirements as other vehicles, and stand on a footing of equality with them, in respect to using due care to avoid collision.” In reading this to the jury the court added the following, among other things. “In other words, gentlemen, if in this street the conditions of traffic are such at any given time that it became necessary for the plaintiff or for anybody to go on those tracks, or between them, or beside them, they are entitled to do it, but by doing that they are not entitled to stop the progress of the car, but if advised of the approach of the car, their duty is to get off. They have, however, the right to use it except when it is actually being used by the company, — that is, when a car is passing or is about to pass. Of course, if a car is passing they would not have a right to go on, or if it is about to pass they would not have a right to go on and stop the progress of the car, for the simple reason that while both parties have their rights and their liabilities, still, by reason of the peculiar character of the car, that can only run on tracks, it has the right of way under the law, and always has the right of way. Therefore a person would not be entitled to use that portion of the track when they saw — 176 — a car coming along, and throw themselves in the way of it, and prevent the progress of the car, or anything of that kind. * * * >5 “That is, with the exception of the idea that wagons must get out of the way of the cars when the track is being used, the care to be exercised in order to avoid accidents is reciprocal. A man in charge of a car has to use due and reasonable care to avoid any accident. A person driving in the street has to use due and reasonable care in order to avoid an accident. So that, in the use of the street, their liabilities to use due and ordinary care for the protection of people and the protection of cars are reciprocal. The time when the car has the greater right to the street is when it is using it and about to pass a vehicle, or pass anything of that kind. I think you understand what the prayer means, and it is upon that theory that this case is to be adjudged by you.” Certain instructions asked by defendant embodying an opposed proposition of law were refused. We think there was no error in this instruction. Capital Traction Co. v. Apple, 34 App. D. C. 559, and cases cited therein. As was said in that case: “A stz’eet-car company has a preferential right of way over its own tracks, which all persons, under ordinary conditions, must respect. * * * ■ 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 zzse of the parts of the streets occupied by its tracks. Railway and people alike must exercise their z’espeetive-rights, with due regard to the rights of each other. They mzzst exez’cise reasonable care under the circumstances of each particular case.” This preferential right of way is justified not only by the pzzblic convenience, to serve which the franchises of the street railways have been granted, but also by the conditions zznder 'which alone they can be exercised. Other vehicles can use any portion of the streets; stz’eet cars az’e confined to their tracks. But as — 177 — the streets are for other public uses also, it must sometimes happen that cars will be temporarily delayed by the occasional exigencies of these other public uses. One public demand or convenience, though of greater importance, must sometimes yield temporarily to another. But while these conditions may sometimes justify the temporary occupation of the car tracks by other vehicles, any unnecessary or wilful obstruction of the passage of the ears is unlawful. When such wilful obstructions occur, the car company may not wilfully or negligently run into other vehicles, but may prosecute the offenders for their violation of the law. Moreover, police are stationed in the streets whose duty it is to see that the laws and police regidations are duly observed. Prompt and strict enforcement of the law would soon remove the evils if such exist. 4. Several instructions that were given at the request of plaintiff, and excepted to at the time, charge the jury, substantially, that it is the duty of persons in charge of a car to use reasonable care and diligence to observe whether vehicles a short distance in front of them are on or so near the track as to be in danger of being struck' by the car, and that if they see such danger it is their duty to give timely warning of the approach of the car, and to keep the latter under such control that it may be stopped in time to prevent injury; and that the car driver is not relieved of this duty, even if the driver of the vehicle is negligent. To a certain extent these embody a proposition contained in the preceding instruction. In so far as they embody the proposition that though one may be in peril through his own negligence, one who perceives that peril is bound to exercise ordinary care to prevent doing him an injury, they are correct. Capital Traction Co. v. Divver, 33 App. D. C. 332-336; Capital Traction Co. v. Apple, supra. Nor was it error to refuse defendant’s special instruction to the effect that, if the car driver wilfully ran down the defendant’s machine, there could be no recovery. The evidence did not indicate a wilful, inten — 178 — tional injury by tbe car driver, and tbe instruction was therefore inapplicable. 5. We perceive no error in the plaintiff’s special instruction to the effect that the burden of proving plaintiff’s contributory negligence was on the defendant. This states a familiar principle of law. Of course, a plaintiff’s contributory negligence may appear on his own evidence, but the objection was not on this ground, nor was such an instruction asked by the defendant. The chief objection stated is that “the prayer refers only to the subject of contributory negligence, and contains no reference whatever to the fact that the plaintiff was claimed by the defendant to have been guilty of negligence concurring with any possible negligence of the defendant at the very moment of the said collision.” We are unable to appreciate the distinction sought to be made between concurrent and contributory negligence as applied to the conditions of this case. If, as defendant contends, plaintiff was guilty of negligence in driving on or dangerously near the car track, and thereby concurred in bringing about the collision, her concurring negligence constitutes what is generally designated in legal nomenclature as contributory. Such contributory or concurring negligence bars recovery for injuries sustained, unless under the exceptional condition considered in the preceding paragraph. That plaintiff was not guilty of such negligence,- as matter of law, we think is clear, and the question was properly submitted to the determination of the jury. If, as testified to by some of. defendant’s witnesses, the plaintiff drove against or in front of the ear, the jury were charged that she could not recover, in the following instruction given at the request of the defendant: “If the jury shall find from the evidence that, on the occasion in question, the plaintiff was driving an automobile along Seventh street at the place in question, and that, in order to pass a coal cart in front of her, she turned to the left, and drove on the track of the defendant, so close to an approaching car that the motorman thereof .had not sufficient time, after she drove upon the track, to stop his said car, and that in consequence — 179 — thereof he struck and injured her machine and herself, then the jury are instructed that the plaintiff cannot recover.” 6. Several instructions were asked by the defendant, embodying the proposition that it was the duty of the plaintiff to look and listen before going upon the track and while thereon, and that her failure to do so was negligence as a matter of law. Wo extract a paragraph from one of these refused instructions: “They should in all cases, before proceeding to cross or travel along said track, carefully look and listen to ascertain whether a car is approaching, and the failure on the part of those in charge of the car to give the usual or required signals, such as the ringing of a bell, will not excuse or justify the traveler in attempting to cross or drive along a railroad track without the exercise of that reasonable precaution of looking and listening for the approach of a train. Therefore, if the jury shall find from the evidence that, on the occasion in question, the plaintiff undertook to' drive her automobile along the track of the defendant, or so close thereto as tó be in danger of being struck by a passing car, without the aforesaid reasonable precaution of looking and listening for the approach of a car, and that she was struck and injured by a car whose approach she could have detected had she looked and listened, then she is not entitled to recover in this action.” The same proposition, in varying form, is embodied in several other special instructions, all of which were refused. The court carefully instructed the jury that it was plaintiff’s duty to exercise reasonable care in going upon the tracks, also that she had no right to go upon the track when a car is about to pass along, and no right to stop the progress of a car. There was no error in the refusal of the special instructions. (1) The question of the respective rights of car companies and of the general public in the use of the streets is incidentally involved under this assignment, but has been heretofore fully considered. (2) While it is the duty of every one, under ordinary circumstances, to use his eyes and ears amid conditions of danger, the failure to look and listen before entering upon a street car — 180 — track does not constitute negligence as a matter of law. Capital Traction Co. v. Apple, supra. Negligence in this respect depends upon the circumstances of the particular case, and is for the determination of the jury. The Case of Apple, supra, was that of a pedestrian crossing the track. (3) • The precaution of looking behind for a coming car is less applicable in cases like this, where one is driving on a track in a vehicle that itself requires care in manágement. Moreover, the top of the machine made it difficult, if not impossible, to keep a lookout behind. In an analogous case, the supreme court of Washington, in reversing a judgment for a defendant, referred to the proposition in the charge of the court, and stated the law as follows, per Chadwick, J.: “His decision rests upon the proposition that the mere fact that plaintiff’s chauffeur was driving his automobile upon the street car track without looking back or anticipating the approach of a car was negligence per se. The street and the whole width thereof was open to vehicles, and it has been frequently held that the mere use of a car track by the driver of a vehicle is not negligence as a matter of law. North Chicago Electric R. Co. v. Peuser, 190 Ill. 67, 60 N. E. 78; Mertz v. Detroit Electric R. Co. 125 Mich. 11, 83 N. W. 1036; Traver v. Spokane Street R. Co. 25 Wash. 225, 65 Pac. 284, 27 Am. & Eng. Enc. Law, 2d ed. p. 57. It is true that it puts upon the driver of the vehicle a greater degree of care, but it does not put upon him the burden of keeping a lookout to the rear to the exclusion of his duty to look ahead. The duty to look ahead is paramount.” He further said that it was the duty of the coming car to give warning so that the driver may have time to clear the way, and that “whether the motorman had no reason to anticipate danger cannot be found, as a matter of law, from the mere fact that the car had a right of way over the street car track. Such a rule would exempt street car companies entirely. * * * If the jury found that he did, or should have seen, the automobile in time to avoid the accident, and did not do so, he would be negligent. If it found that he did not and could not, in the exercise of reasonable care and prudence, see the automobile in time to prevent the accident, ho — 181 — would not be guilty of negligence.” Baldie v. Tacoma R. & Power Co. 52 Wash. 75, 77, 79, 100 Pac. 162. See also Tashjian v. Worcester Consol. Street R. Co. 177 Mass. 75, 81, 58 N. E. 281; Vincent v. Norton & T. Street R. Co. 180 Mass. 104, 105, 61 N. E. 822. In the last-named case a covered baker’s wagon, closed with drawers and boxes, was run into by a car coming up behind it. Mr. Chief Justice Holmes, in delivering the opinion affirming a judgment for the plaintiff, said: “It was not negligence to drive such a wagon in the public streets, even those containing street railway tracks. It was not negligent or unlawful to drive upon the tracks. The fact that the horse was walking makes the plaintiff’s case no worse. As against a car coming up behind him the driver would have done his duty by getting off the track when he knew of its approach. Com. v. Temple, 14 Gray, 69 — 78. But the driver did not know of it. If the bell was rung, those in the wagon testified that they did not hear it. They were not bound to keep an impossible watch upon the rear. See Benjamin v. Holyoke Street R. Co. 160 Mass. 3, 4, 39 Am. St. Rep. 446, 35 N. E. 95. The defendant could not run them down from behind under any ordinary circumstances, without negligence or wilful wrong, and this they may be supposed to have known. There were no spe cial circumstances in this case. The wagon was plainly visible in front of the car. There was sufficient evidence of the defendant’s negligence and of the plaintiff’s due care.” 7. In addition to what has been said in regard to the propriety of submitting the issues of the defendant’s negligence and plaintiff’s contributory negligence to the jury, it is sufficient to say, in respect of the refusal to direct a verdict for the defendant, that the instruction, apparently, was based largely on a view of the law relating to the rights and duties of users of the streets, the soundness of which we have denied. The points considered embrace all those of importance in the case and it is unnecessary to discuss any others. We find no error in the proceedings on the trial, and the judgment will be affirmed with costs. Affirmed.