Washington-Virginia Railway Co. v. Himelright

Mr. Justice Robb delivered the opinion of the Court: The declaration is sufficient. It sets forth with reasonable certainty the duty of the defendant railway company, the breach of that duty, and the time, place, and circumstances surrounding such breach. Moreover, the trial was upon the amended declaration, to which no objection was interposed. There was no error in overruling the motions for a directed verdict. The plaintiff was not a trespasser, and the evidence introduced by him clearly tended to show that he was in the exercise of due care at the time of the accident. That the place was well lighted is apparent from the defendant’s as well as the — 542 — plaintiff’s evidence, and even although plaintiff must have known that the headlight on defendant’s car was so dim as to be distinguished only with difficulty by one within the lighted zone, it likewise must háve been apparent that the motorman, whose duty it was to keep a lookout ahead while he was traversing the streets of the city, would have no difficulty, if he exercised reasonable' care, in distinguishing objects within such zone, and in ample time to warn the plaintiff of the approach of the car. Clearly, under the evidence, the question of contributory negligence was one for the jury to determine. Since the time when the temporary track was to be put down and taken up was conceded, it was not error to exclude the contract between the railroad and railway companies relating thereto. That it is the duty of those engaged in operating street cars along the streets of the city to keep a lookout ahead, and exercise reasonable care to avoid injury to pedestrians, has been determined by this court. Capital Traction Co. v. Apple, 34 App. D. C. 559, 569; Washington R. & Electric Co. v. Cullember, 39 App. D. C. 316. And where there is such a duty, reasonable means of knowledge must be regarded as the equivalent of knowledge. Bourrett v. Chicago & N. W. R. Co. — Iowa, —, 121 N. W. 880 (1909) ; Teakle v. San Pedro, L. A. & S. L. R. Co. 32 Utah, 276, 10 L.E.A.(N.S-) 486, 90 Pac. 402;, Herrick v. Washington Water Power Co. 75 Wash. 149, 48 L.R.A.(N.S.) 640, 134 Pac. 934; Elliott v. New York, N. H. & H. R. Co. 83 Conn. 320, 76 Atl. 298; Baltimore Traction Co. v. Wallace, 77 Md. 435, 26 Atl. 518; Richmond Traction Co. v. Martin, 102 Va. 209, 45 S. E. 886. Did the defendant’s motorman, in the present case, exercise reasonable care to avoid injuring the plaintiff ? And, if he did not, can it reasonably be said that his breach of duty was the proximate cause of plaintiff’s injury ? That the evidence would have warranted the jury in finding that the motorman, had he exercised reasonable care, could have seen the plaintiff in ample time to avoid the accident, there can be no doubt. The car was stopped,_ according to the motorman’s testimony, within 15 feet — 543 — after he saw the plaintiff; and as the evidence clearly tended to show that the plaintiff was visible from 50 to 75 feet away, it is apparent that had the motorman looked he would have seen him. According to the testimony of the motorman himself, he was about 20 feet from the plaintiff when the pedestrian who had walked upon the track got out of the way. lie had then brought his car almost to a stop, and yet, according to his own statement, he then “released the air and started on again,” and did not see the plaintiff until the car was within 5 or 6 feet from him. It will be remembered that a passenger who was standing on the rear steps of this car, and who testified for the defendants, stated that he plainly saw the plaintiff when the car was within 15 or 20 feet from him. There was, therefore, ample evidence from which the jury might have found that had the motorman exercised reasonable care he would have discovered the plaintiff in ample time to have avoided injuring him. In Washington R. & Electric Co. v. Cullember, 39 App. D. C. 316, it was held that a street railway company is liable for personal injuries sustained by one thrown from his wagon when it was struck by a car, although his own negligence may have exposed him to the risk of injury, if the motorman saw him, or by the exercise of reasonable diligence could have seen him, in time to stop the car. In Elliott v. New York, N. H. & H. R. Co. 83 Conn. 320, 76 Atl. 298, the plaintiff’s intestate was killed while attempting to drive across the defendant’s railroad at a grade crossing, and, as here, the question was submitted to the jury whether, entirely apart from the plaintiff’s alleged negligence in getting upon the track, “the defendant negligently failed in its duty toward him after it knew or ought to have known of his presence there and his peril.” This charge was sustained. In the course of the opinion the court said: “The jury are to decide, under the evidence and claims, whether the plaintiff was free from negligence which was a proximate cause of the injury. If they find that he was negligent in going upon the track, but that such negligence was noli a proximate cause of the injury, and that there was no subsequent negligence on his part essentially contributing to it, he — 544 — may recover if the jury also find that the defendant’s negligence was the proximate cause of it. * * * The question always is, Whose. negligence was the proximate cause of the injury? * * * We think that the defendant’s duty to avoid the collision arose when, by the use of due care, it would have known of the intestate’s peril, and was not postponed until it had actual knowledge.” In Herrick v. Washington Water Power Co. 75 Wash. 149, 48 L.R.A.(N.S.) 640, 134 Pac. 934, the plaintiff was injured while lying in a street and partially across the track of the defendant railway company. The jury, as here, were instructed that if the motorman “saw, or by the exercise of ordinary care ought to have ■seen, the plaintiff lying upon the track of the defendant in front of him, as alleged, in time, by the exercise of ordinary care and diligence on his part, to have prevented the car from running over or striking him,” the plaintiff might recover if the jury should further find that such negligence on the part of the motorman was the proximate cause of the injury. This instruction was approved. In the course of the opinion the court observed that “in such a case the failure to observe the reasonable care due to all the members of the public is the proximate cause of the injury; the plaintiff’s prior negligence being a mere condition.” In other words, this rule constitutes no exception to the general doctrine of contributory negligence. It simply means that where the negligence of the defendant, in failing to keep a proper lookout, intervenes between the negligence of the plaintiff and the accident, the negligence of the former may he regarded as the proximate cause of the injury, while the negligence of the latter may be considered as the remote cause or condition. Necessarily, if it is found that the negligence of the plaintiff was merely the remote cause or condition, it cannot be said to have been contributory, since negligence, to be contributory, must be one of the proximate causes. Here, assuming that there was evidence from which the jury fairly could have found that the plaintiff was guilty of -negligence in placing himself upon the defendant’s track as he did, it was clearly for the jury to — 545 — say whether that negligence was not merely the initial cause or condition out of which his injury grew, and whether the negligence of the defendant’s motorman in failing to keep a proper lookout, as he was in duty bound to do, was not the immediate or proximate cause of the injury. The witnesses all agree that the plaintiff’s position did not change after he placed himself upon the track, until the car was almost upon him. Ilis peril, therefore, would have been obvious to the motorman had he exercised reasonable care, and the failure in that regard, in the circumstances, well may have been found to be the immediate and proximate cause of plaintiff’s injury. Grand Trunk R. Co. v. Ives, 144 U. S. 408, 429, 36 L. ed. 485, 493, 12 Sup. Ct. Rep. 679, 12 Am. Neg. Cas. 659. We think the charge as given was correct. The result would be the same even if we should assume that the plaintiff was asleep or intoxicated when he was injured. Pickett v. Wilmington & W. R. Co. 117 N. C. 616, 30 L.R.A. 257, 53 Am. St. Rep. 611, 23 S. E. 264; Herrick v. Washington Water Power Co. supra. The proximate cause of the injury still might be the negligent failure of the motorman to keep a proper lookout. It was not error that the court declined to withdraw from the jury the consideration of the question whether the car was under proper control at the time of the accident. As to the duty of the motorman, the court instructed the jury, in effect, that if they should find from the evidence that the plaintiff negligently exposed himself to the risk of injury by going upon the track to engage in the work wdiieh he claimed he was doing at the time, and that the motorman, while the plaintiff was so exposed, saw him or could have seen him by the exercise of reasonable care and diligence in time to have stopped his car and negligently failed to do so, and that negligence was the proximate cause of the injury, their verdict should be for the plaintiff. It will be remembered that the motorman himself testified that when he was within about 20 feet of the plaintiff he “released the air and started on again.” Had he exercised reasonable care, he would have discovered the peril of the plain — 546 — tiff, and, instead of “releasing the air” and accelerating the speed of his car, would have put on the brake and brought his car to a stop. Obviously, therefore, under the evidence, his car was not under proper control. We do not deem it necessary to review the various prayers offered. It is enough to say that the charge as given fairly and properly presented every phase of the case to the- consideration of the jury. Judgment affirmed, with costs. Affirmed.