Austin v. Vicksburg Traction Co.

Smith, J., delivered the opinion of the court. Suit was instituted in the court below by appellant to recover from appellee, a street ear company, damages for an injury alleged to have been sustained by him by reason of the negligent operation of appellee’s road. In December, 1908, appellant was going to Vicksburg from his home, about sixteen miles in the country. As he arrived at the foot of the hill, called “Hall’s [870] Hill” in the suburbs of Yicksburg, he reached a point on the public road of the country on which the appellee was operating’ a street car line and had a street car track. At the foot of this hill there is a wire fence on each side, inclosing the street ear track and public road. The car tracks run east and west on the south side of the road down this hill, through a deep cut, and within the two wire fences mentioned. The public road runs along parallel with the track up this hill. This road is about eighteen feet wide, the distance from the foot of the hill to the top of the hill is about one hundred yards, and there is nothing to obstruct the vision from the foot to the top of the hill. When the appellant, who was driving a horse hitched to a single buggy, reached the foot of this hill, and started up' the hill in the public road, he saw a street car of appellee appear on the top of the hill, coming toward him. The horse showed fright at the approaching car, and, being hemmed 'in by the two embankments and two wire fences on either side of the road, there was m> way by which appellant could drive his horse away from the position he occupied near the streét car track. When the horse showed fright at the approaching car, appellant stood up in his buggy, and waved to the motorman, and said to him: “For heaven’s sake, stop your car!” Whether or not his request was heard by the motorman is not disclosed by the evidence. The car continued to advance toward appellant, and as it continued to approach the horse turned, first to the right against the embankment, backed a short distance, and then turned suddenly to the left, which brought his feet across the track; but he escaped therefrom without being struck by the car This action of the horse overturned the buggy and threw the appellant out against the car. By striking the car he was knocked back underneath the buggy, and sustained the injury complained of. At the close of appellant’s testimony the court excluded the evidence, and peremptorily charged the jury to find for the appellee. From a verdict accordingly, this judgment is taken. Assmning that a street railway company is lawfully in the [871] occupation of a street, its and the public’s right to the use thereof are equal, except in so far as this equality is modified by reason of the fact that the street car company is confined in its operations to a stationary track. Each must use the street with reasonable regard for the safety and convenience of the other. It was the duty of the motorman, while running his car, to keep a reasonably careful lookout for, and use reasonable precautions to prevent accident to, persons lawfully using the street; the degree of care required of him in this regard, varying according to the time, place, and circumstances. Whether the motorman has complied with this duty presents, as a general rule, a question of fact for the jury. In the case at bar it was for the jury to say whether the motorman, under all the circumstances, saw, or in the exercise of reasonable care ought to have seen, the danger in which appellant was placed by reason of the fright of his horse, and whether he (the motorman) then exercised such care as a reasonable and prudent man would have exercised raider the circumstances to prevent the occurrence of the injury. The granting of the peremptory instruction, therefore, was error. Ellis v. Lynn R. R. Co., 160 Mass. 341, 35 N. E. 1127; Muncie St. Ry. Co. v. Maynard, 5 Ind. App. 372, 32 N. E. 343; 2 Thompson on Negligence, § 1374 ei seq., and authorities there cited; also section 1420, and authorities there cited. Reversed and remanded.