Rhymes v. Jackson Electric Railway, Light & Power Co.

Calhoon, J., delivered the opinion of the court. In this case, which is an action for damages for personal injuries from being struck by a street car of.the appellee company, no evidence was offered by the company, but the court sustained its motion to exclude the evidence introduced for the plaintiff and for a peremptory instruction to the jury to find for the defendant. In this situation, the.question is whether the court would or should have set aside a verdict if found for the plaintiff on the testimony offered for him. The case shown is that the delivery wagon of an express company had cast a wheel, and was broken down and turned over on its side on the street car track, and the horses had run away. Express packages were scattered around, .and the safe for valuable packages was sent across the street to a store for safety. A considerable crowd collected at the scene of the accident, one of whom was Rhymes — a citizen not connected with the express company or the street car company. He, with others, immediately proceeded to right up the wagon, get it off the track, and pick up and put back into it the scattered packages. While they were so engaged, the horses had been caught and rehitched to the wagon. The rear end of the wagon was north of the track, and but three feet from the street car track, and into this rear end Rhymes and one Proctor had just put the last package — a large crate of hats — when they were asked to go. across the street to the store for the safe, which was south of the track. Rhymes turned to do so, and, as he turned, was struck by the part of the car jutting over the track, and dragged some distance. He does not think he made a step, but may have made one. He could have seen the car if he had looked. The scene was in a broad street, and the car track was in its center, with a straight view for one hundred yards. The car was running west, and down a steep grade, moving from eight to ten miles an hour; and the motorman was not looking down his track, but at the crowd along its edges, did not have his hand on his [148] brake, according to custom, did not slow up or sound any alarm, and said at tbe time: “My old brakes ain’t any account.” Under this presentation of facts, we think tbe case should have been left to tbe jury to determine wbetber, witb bis preoccupation and bis surroundings, plaintiff was guilty of contributory negligence, and, if be was, wbetber tbe motorman was not guilty of sucb gross negligence ás to make recovery by tbe plaintiff proper.' Tbe degree of care required of motormen of electric cars varies witb varying situations and circumstances, and what would be slight or no negligence in some conditions might well be regarded as gross in others. Running down a sharp grade, in tbe daytime, witb tbe unusual spectacle of a throng of preoccupied people1 on the edge of tbe track at tbe scene of a recent accident, with no control of tbe car, and without sounding an alarm, would be gross negligence, and sucb as would justify a verdict for damages notwithstanding tbe act of tbe plaintiff. He shows such a case by bis witnesses, and unless it is varied by evidence for tbe company, it'warrants tbe jury in a verdict for plaintiff. Montgomery v. Lansing, etc. (Mich.), 61 N. W., 543 (29 L. R. A., 287), cited by counsel, is precisely in point, and we approve and follow it. Thompson v. Salt Lake, etc. (Utah), 52 Pac., 92 (40 L. R. A., 172; 67 Am. St. Rep., 621). Reversed and remanded.