Hilts v. Foote

Grant, J. (after stating the facts). We think the instruction was correct. The learned circuit judge fully stated to the jury his reasons for his direction. After stating the rule as he deduced it from the authorities, he said: “ Now, applying this rule to the evidence we have before us, it seems to result here, from any view of the testimony which can fairly be taken, that it was negligence, and I [246] think contributory negligence, for the driver of the milk wagon, Thompson, to attempt to make the crossing in front of the street car at the time and in the manner he did. And this, I think, must be held to appear conclu'sively from the evidence in the case. Indeed, no other conclusion can be drawn from the evidence without doing violence to the law of the land as given to us by the Supreme Court of this State, and doing violence equally to our common sense and judgment as applied to the facts, which are beyond dispute. It must,, therefore, be held that in this case the driver of the milk wagon, Thompson, was guilty of contributory negligence in attempting to make the crossingjn front of the approaching street car, under the circumstances and in the manner and at the time he did, as shown by the evidence.” It is manifest from this record that Thompson drove upon East Main street without slacking his speed, without looking for the car until he was so near the track that he thought it impossible to stop his horse before the car would strike him. He was responsible for the situation. Even where there are no street cars, a party driving from one street into and across another is bound to be on the lookout for teams traveling along the street, and to keep his horse under control. Thompson had ample time to look both west and east in time to see the approaching car and stop so as to avoid the accident. It was his duty to do this. There is nothing in the record to justify the conclusion that the motorman deliberately and recklessly ran Thompson down after seeing that he was in danger. There is no evidence upon which to charge such inhuman conduct upon the motorman. Judgment affirmed. The other Justices concurred.