Fenneman v. Holden

Irving, J., delivered the opinion of the Court. The appellee sued the appellant for injuries suffered in consequence of being struck by an ice wagon of the appellant, driven by appellant’s servant, alleged to have been driven at reckless speed into a street which appellee was crossing. Appellee testified that he was seventy-five years old, and was attempting to cross Baltimore street from its southwest corner, where Gay street intersects it; that the way seemed clear when he started, but when he got to the middle of the street he saw an ice wagon coming down Gay street, southward, g,t a reckless speed; that it turned in Baltimore street cutting him off from crossing the street; that he attempted to get out of its way, but could not do so, and was struck by the hub of the ice wagon, and had his leg broken; that when the accident happened he saw a street car, just above him on Baltimore street, and that when he was struck he was between the North and South street car tracks, near the flagging; that he looked round and saw nothing in his way, and it was his habit in crossing the street to exercise care, because he was hard of hearing; that he was strong — 6 — and active for his age. On cross-examination, he said he was very hard of hearing, and did not know of his danger until some one called out to him to look out; that he did not see the ice wagon until it was right on him, and then he tried to get out of the way hy running up the track, when he was struck; and that he saw no street car either before or after the accident. Appellant also proved by the conductor of the street car, that he saw the plaintiff crossing the street as he was taking his car down Baltimore street; and when thé car got to the switch, the plaintiff was between the horses of the street car and the ice wagon. By the driver of the car he proved that he saw the plaintiff cross the street, and when he got part of the way the ice wagon suddenly turned into Baltimore street, when the plaintiff got scared and turned towards the street car, and ran between the tracks “some little distance/” when the ice wagon going west on the north track, driven at a reckless speed struck him; that the plaintiff was between the horses of the street car and the ice wagon; and that if the wagon had been driven on the street and not on the track, the accident would not have occurred. The defendant proved by a witness riding on the front platform of the street car that he saw the whole accident, and that the plaintiff attempted to run across the street in front of the horses of the street car going east on Baltimore street; and that he just escaped being struck by the horses of the street car; and that when he got to the middle of the street between the north and south tracks of the street car, he was struck by the hub of an ice wagon going west; that when the plaintiff got to the middle of the street the horses of the street car had alreadjr passed him. On cross-examination he said he called to the boy driving the wagon to look out, before plaintiff was struck. Upon this state of facts numerous prayers were granted and refused on the part of the plaintiff, and this appeal — 7 — only involves the correctness of the Court’s action in respect to these prayers. The first prayer of the defendant was rejected, hut appellant’s counsel waives that prayer in this Court, and all objection to its refusal. The defendant’s fourth prayer asked the Court to instruct the jury, that if they found the plaintiff was deaf, or hard of hearing, that this infirmity “cast on him the duty of being more careful in keeping a proper look-out for passing vehicles than if he was in the possession of his faculty of hearing.” The rejection of that prayer was plainly wrong. It is text book law, and fully sustained by decisions of high repute, that an infirmity in any of the senses makes’it necessary for a person to be more vigilant and cautious in the use of his other senses. The importance and necessity for this rule is especially illustrated in this case. Here was a plaintiff attempting to cross a public street, upon which street cars were running, and across which ran another very public thoroughfare, in and down which the wagon, which inflicted the injury, was coming with rapidity. Being very hard of hearing, as he testified, he could not rely on his hearing for notification of an approaching vehicle, therefore must rely on his sight. He says he did not see either the street car coming in one direction, nor the wagon coming directly in front of him. It was therefore very important that the jury’s attention should be specifically called to his deafness, that they might consider especially whether he had been correspondingly carefid in looking for approaching vehicles before crossing the street, and in the act of crossing. The rule does not impose on persons more than ordinary care; “but the standard of such care is fixed by that which prevails with ordinary men of their class.” In the 2d vol. of Sherman and Redfield on Negligence, sec. 481, the rule is most clearly set forth and defined. They say: “Thus a deaf man should look — 8 — up and down the track even more closely than might he necessary if he could hear well.” They cite numerous authorities for this statement of the law, all of which fully sustain the proposition. 1 Thompson on Negligence, 430, states the law in the same way. Illinois Central R. R. Co. vs. Buckner, 28 Ill., 299; Cleveland, Columbus and Cincinnati R. R. Co. vs. Terry, 8 Ohio St. Rep., 585; Ormsbee vs. Boston and Prov. R. R. Corp., 14 R. I., 102; Zimmerman vs. The Hannibal and St. Joseph R. R. Co., 71 Mo., 476; Purl vs. The St. Louis, &c. Railway Co , 72 Mo., 172; Central R. R. Co. of New Jersey vs. Feller, 84 Penn., 229. The fifth prayer of the defendant was properly rejected, heceause it was misleading. It asked the Court to deny the plaintiff recovery if, “when crossing the street he could have seen the wagon approaching in time to avoid it if he had looked.” With what degree of care it was his duty to look is not alluded to. Although it might have required extraordinary care and effort to have seen the wagon, — a degree of diligence and care to which he ought not to he held, — still, under such circumstances even he could not recover under that prayer. Ordinary care, such as a reasonably prudent man at his age and condition as to hearing would he expected to exercise, was all that could he required of him. This prayer left the jury to apply a more rigid and exacting rule of care. The sixth prayer of the defendant was rightly refused. If the plaintiff had been injured by the street car by reason of his having crossed the street immediately in front of the horses, which were moving, a very different question would he presented; but his negligence in that regard cannot affect this case, except as reflecting light-on the character of care he was observing in crossing the street. The prayer puts the fact very properly, hut asks the jury to draw an unwarranted inference from the — 9 — actas connected with the injury inflicted hy the ice wagon. The prayer is infirm in making no reference to the care of the plaintiff in respect to failure to see or avoid the ice wagon; and punishes the owner of the ice wagon for simply being in the plaintiff’s way, without alluding fo any element of care necessary to have been observed by its driver as respects the plaintiff. The third prayer of the plaintiff was granted, we think, in error. In defining the degree of care required of the plaintiff it wholly ignored the question of the deafness of the plaintiff, which would subject him, as we have already said, to the necessity of more diligently using his faculty of sight. After the word “situation” something should have been added which would draw the jury’s attention to his deafness to which the plaintiff testified. Besides this defect, in attempting to conjoin with that definition of care required of him the idea that, though he may have been somewhat negligent, still he might recover, if hy the exercise of reasonable care the defendant’s servant could have avoided the accident, the prayer becomes self-contradictory in making him both reasonably careful and somewhat negligent; and in that paragraph of the prayer he does not correctly put the rule of liability in cases of mutual negligence. With respect to the criticism of appellant’s counsel upon the concluding sentence of the plaintiff’s first prayer, we think that, if that prayer stood by itself, without any qualification by other instructions, it would be misleading; but qualified as it is, by the second and third prayers of the defendant, we should hesitate to reverse for that defect if there were no other errors to reverse on; but, as the case must go back for anew trial, we suggest that the suggested defect in that prayer he corrected, and then it will he liable to no just criticism as now, for not calling attention to the reasonable care which it was the duty of the plaintiff to exercise. — 10 — (Decided 12th November, 1891.) For the errors Ave have mentioned the judgment must he reversed, and a new trial must he had. Judgment reversed, and new trial awarded.