Pratt v. Utah Light & Railway Co.

ERICK, O. J. Appellant was injured by being struck by a street car while she was in the act of crossing one of respondent’s tracks, and she brought this action to recover damages. In her complaint she alleged that the respondent was negligent (1) because the car with which appellant collided was not equipped with “a sufficient guard or fender,” and that the same was not maintained in good repair; (2) that the car was not provided with “a good and sufficient headlight;” and (3) that respondent “carelessly and negligently ran and operated the car, by reason of which appellant was struck.” Respondent denied the acts of negligence, and pleaded negligence on the part of appellant, which it is alleged was the proximate cause of the collision and injury. Upon these issues the undisputed facts developed at the trial are substantially as follows: On the 19th day of August, 1908, at about eight-thirty or nearly nine o’clock p. m., the night being cloudy and dark, the appellant was walking — 502 — south on the east side of Seventh East Street. When she arrived at a point a little south of Thirteenth South Street, outside of the southern city limits of Salt Lake City (near Wandemere Park, a summer resort, to the entrance of which place she intended to go to meet her son by appointment), she left the sidewalk on the east side of said street, and started to go either directly or perhaps somewhat diagonally in a southwesterly direction across Seventh East Street toward the entrance to Wandemere Park on said street. While in the act of crossing the street, she met with an accident, and upon that subject she testified as follows: “Q. Do you remember going into the street ? A. Yes, sir. Q. Now, do you recollect anything after that? A. No, sir. Q. For how long? A. Well, I would think two weeks, up in the hospital.” This is all she testified on direct examination with respect to how the accident occurred, or with regard to what she saw or what happened to her. On cross-examination she said that she was somewhat familiar with the street, and that she noticed that there were to tracks at the point she was about to cross them, and that she distinctly remembered crossing one of the tracks, but remembered no more. At this point .in the proceedings the record reads as follows: “Q. When you walked across (the street), did you look to see whether any car was coming in either direction? A. I am sure I don’t know. I generally did. Q. I know; but did you on this night ? A. I say I don’t remember that. Q. Don’t remember looking in either direction? A. No, sir. ... Q. Of course, if you had looked and you had seen it (the car), you would have remembered, wouldn’t you ? A. I think I would. . . . Q. You say you don’t remember whether you looked in either direction at this particular time. Did you? A. No, sir; I don’t think I did.” She further said that she knew that the street in which she was struck by the car was straight north and south from south of Thirteenth South Street nearly to Third South Street, or for a distance of over ten long city blocks, and that just before the accident she did not hear any car approach, although her hearing was not defective. A witness — 503 — named De Cray, who testified on behalf of appellant, in substance said that just preceding the accident he was walking south on the west side of Seventh East Street and had just passed over Thirteenth South Street when he saw the car which struck appellant come from the north; that he had gone some sixty or seventy feet south of Thirteenth South Street when the car came up to and passed him going south. He says: “All at once after the ear passed me, I notice an object in front of the ear which afterwards proved to be Mrs. Pratt (the appellant) that he “couldn’t say whether she was crossing, standing, going, or coming, . . . because it all happened so quickly, and the light, I suppose didn’t throw sufficient to show which way she was facing. Q. Dim light? A. Well, not necessarily dim, I suppose, for a headlight, but it wasn’t one of those searchlights.” He further says that the headlight was an “ordinary headlight, such as you see in common use.” The witness further testified that, when he saw appellant on the track ahead of the car, it had passed south of where he was walking, so that it immediately passed between him and appellant, but he thinks he saw that she was struck by the car because she seemed to fall. With respect to the speed, he said, “I should judge they were going moderately,” and that the car was quickly or suddenly stopped. As soon as the car stopped, he immediately went in front of it, and found the appellant under the forward part of the car under the fender. She had not been touched by the wheels of the car, but she was unconscious. Mr. Davidson, another witness called on behalf of appellant, testified: That he with others was riding on the front platform of the car in question at the time of the accident; that it was dark and cloudy, and that he was standing by the motorman; that the rays of the headlight were thrown twenty-five or thirty feet ahead of the car; that he saw, a lady on the track in front of the car. “Q. Did you see her as soon as the rays of light were thrown upon her? A. Well, I should judge so. She got just in the vision of the flash of it once. ... Q. Now, was the motorman — 504 — looking in that direction ? A. Yes, sir. Q. Wbat did be do, if anything? A. Sounded his gong, shut off his power— well, everything he could do, it seemed to me, and shouted. Q. With respect to the time he saw her you may state how soon it was that the brakes were shut down. A. Well, it seemed to me the same time I saw it. Q. How quick did this all happen? A. Well, in time I can’t say. All at once, all came at once.” He also said that the car had slowed down on Thirteenth South Street just before the accident, but had gained headway again, and at the time appellant was first seen on the track the car was running “about medium speedthat, when he saw her on the track, it all happened so suddenly that he “couldn’t say whether she was walking or standing still.” At the point the accident occurred the street was not artificially lighted. Another witness, named Hose, in substance, testified that at the time of the accident he was standing at the gates of the park; that he observed the car coming south. He furthei* said: “I suppose it (the car) had gone maybe a block or more, a ci'ty blockthat he noticed that the car had stopped; that he noticed the headlight on the car; that the headlight was “the kind ordinarily used by the street railway company, only at times it was very dim;” that he did not think it would throw its rays “to exceed twenty feet;” that he was “possibly a half or three-quarters of a block away” from where the appellant was struck. There was other evidence corroborative of the foregoing, but none in conflict with it. It also appeared that inside of the park proper, and at considerable distance from where the accident occurred, there were music and other noises that usually occur at such amusement places where a large crowd is assembled, as was the case on the evening in question. The point where appellant attempted to cross the tracks, and where she was struck, is about five hundred feet north from the entrance or gates of the park. Nothing, is made to appear with regard to the character of the place, only that there was no public crossing at that point; that is, — 505 — that the collision occurred at a point wbicb was some distance from a street or other public crossing. There is no evidence with regard to the guard or fender other than that the car was equipped with the ordinary fender in use by the respondent; that this consisted of a hood or apron extending across the front of the car, and a guard or fender held up from the rails by some device under the front part of the car, and was in front of the forward wheels; that, when an object came in contact with the hood with any considerable force, the impact would cause the fender to be released from the aforesaid device, and it would fall and rest upon the rails, and in that way was intended to prevent objects which were of considerable size, including persons from passing under the wheels; that the motorman could also cause the fender to drop down on the rails by stepping on a bolt which for the purpose was conveniently placed on the platform of the car. There is no direct evidence whether the fender dropped or not. In view that it passed over appellant, the inference is that it did not drop, a.t least not in time to prevent appellant from passing under the wheels. As the car was stopped, however, before the wheels touched her, the fact that the fender did not drop is not material. There was also evidence respecting the injuries appellant sustained, but it is not deemed material to state the extent of her injuries on this appeal. IJpon substantially the foregoing evidence the appellant rested her case. Kespondent also rested without offering any evidence, and moved the court to direct the jury to return a verdict for it upon the following grounds: (1) That appellant had produced no evidence that the respondent had failed to equip its car wtih a sufficient guard or fender, or had failed to keep the same in good and sufficient repair; (2) that there was no evidence that respondent had failed to provide for and keep on said car a sufficient headlight; (3) that there was no evidence that respondent had been negligent in any way in operating said car, or that it was being operated at a high or negligent rate of speed at the time of or immediately preceding the accident; and (4) that the un — 506 — disputed evidence shows that appellant was herself guilty of contributory negligence which caused or approximately contributed to the accident and consequent injury. The court granted the motion, directed the jury to return a verdict for the respondent, no cause of action, which was accordingly done, and a judgment entered on the verdict, from which this appeal is prosecuted. Counsel for appellant insists that the trial court erred in directing a verdict. In their brief counsel state the questions for consideration by us as follows: “Two questions are presented for review: First. Did the defendant as a matter of law exercise due care ? Second. If the defendant as a matter of law did not exercise due care, was the plaintiff as a matter of law guilty of contributory negligence ?” Counsel for respondent agree with the foregoing statement, but contend that both questions must be answered in the affirmative, while appellant’s counsel insist that they must be answered in the negative. In view of the undisputed facts and circumstances when applied to the grounds of negligence relied on by appellant, were there any facts, or inference from other facts, upon which a jury might have predicated a finding of negligence against respondent ? Stating the proposition in another form, are the undisputed facts of such a nature that fair-minded men would be justified in arriving at different conclusions with respect to whether the respondent was guilty of some act of negligence or of some act of omission described in the complaint, and which was the proximate cause of the collision and consequent injury to appellant? Counsel for appellant contend that the question whether the headlight was sufficient or not was a question of fact for the jury, and hence the trial court erred in directing a verdict on this ground. They further insist that “the question of a sufficient guard is likewise a question of fact. It was alleged and proved that the fender and guard failed to operate.” The foregoing are the only grounds 'of negligence claimed, and are the only reasons assigned' why respondent was negligent. — 507 — It is and must be conceded that ordinarily both of the foregoing questions would be questions of fact rather than of law. It must, however, also be conceded that a proposition arising in a particular case cannot always be determined by the application of mere general rules. Facts and cireum-. stances do not only modify, but they very often entirely silence, general rules. What is there in this case on which a jury of fair-minded men could base a finding that the respondent was guilty of negligence in either one or both of the particulars above stated? What fact or circumstance is there disclosed by the evidence from which a fair-minded man can deduce negligence on the part of respondent, and, if such negligence were found, what is there to show that it either caused or proximately contributed to the collision? Counsel do not point to a single act or omission which they insist constituted negligence on the part of respondent, but what they contend for is that the jury might have found negligence. What are the facts and circumstances ? On a dark and cloudy night a car in passing at a moderate rate of speed along a certain street outside of the city limits of a populous city, and at a point where there is no public crossing, nor, so far as the evidence discloses, was it a place where people were in the habit of crossing or passing over or along the car tracks. At such a place a collision occurs with a person who is on the car tracks. The car is provided with a headlight. If not brilliant, it was nevertheless clearly seen for a considerable distance before the car arrived at the point of the accident. In addition to this, lights were shining in the car itself which made the car visible to all who looked as it approached a given point for a long distance. Moreover, the person who now complains of the insufficient lights says she did not look for a car, and saw none approaching at any time before she was struck. If she did not look, she could not see the lights, and thus it follows that whether they were bright or dim could have had no possible effect upon appellant, and hence cannot be considered as an element in the case. But, as already remarked, the lights were in fact plainly visible, and were seen for a — 508 — long distance by others, and what others did in fact see it must be assumed appellant conld have seen in view that those who did see were in no better position to observe the lights than she was. But there is another view worthy of consideration. There is absolutely no evidence respecting the kind or character of a headlight respondent ought to have provided for its cars. Appellant’s right to a recovery must rest upon a violation of some legal duty by respondent which it owed her. What was respondent’s legal duty with respect to the headlight? If the light was such as would answer the purposes of a headlight in the operation of respondent’s car, and was sufficient to protect the public against injury from a moving car, it would seem that respondent had discharged its full legal duty owing to appellant. In view of the relations existing between appellant and respondent, the jury could not arbitrarily assume that the injury was caused through the fault of respondent. Unless there was some competent evidence to show that respondent was negligent with respect to some of the acts or omissions complained 1 of, and that such acts or omissions, or either of them, constituted the proximate cause of the injury, she must fail as a matter of law. In this case there is no room for a presumption that appellant was in the exercise of ordinary care in attempting to cross the track. The usual presumption upon this point is met by her own positive statements to the contrary. In the light of her statements, the headlight had not the slightest influence upon the collision or accident. Under the evidence in this case, it is clear that the result would still have been the same even though the headlight had been much brighter than the testimony shows it was. The appellant was apparently walking nearly at a right angle to the direction the car was going. If she walked at the ordinary pace of three miles an hour, she would travel at the rate of about four and one-third' feet per second. If, on the other hand, the car was going at the moderate rate of speed testified to, say about ten miles an hour, it would travel at the rate of about fourteen and one-half feet per — 509 — ¡second. Appellant would thus move towards the track about seventeen feet in four seconds of time and the car in the same time would move forwards about fifty-six feet, and each would move one-half that distance in one-half of that time. From this it follows that the accident on a dark night would most likely happen just as the witnesses have said it did happen. Appellant in moving toward the track would suddenly step out of the darkness into the rays of the headlight which would he cast forward somewhat in the shape of a funnel. The motorman could not see her until she appeared in the path of the light rays, and all he could ■do then would be just what the motorman did on the car in question, namely, stop the car as quickly as possible. If to do this required the short space of two seconds, the car would still move forward, if continuing its speed, .twenty-nine feet, and, if checked, possibly anywhere from fifteen to twenty-five feet. Again, it is plain that if appellant had entered upon the track when the car was as much as thirty feet or more feet, or even twenty-five feet, away from the point where she stepped on the track, she, if she kept on going, would have passed over it by the time the car reached her, because in two seconds of time, if going at the ordinary pace aforesaid, she would have traveled forward over eight feet, which is more than the width of the track. She must therefore have stepped on the track when the car was less than twenty-five feet, and likely less than twenty feet, away from her. Further, in view of appellant’s statements that she did' not look, and hence did not see the headlight nor .the lights in the .car while others in similar situations with respect to the tracks did see them, it follows as a self-evident proposition that neither the brightness nor the dimness of the headlight could have any possible effect in either bringing about or in averting the accident. The case might he entirely different if it had been daylight and the motorman could, and thus should have seen appellant approaching the tracks in front of the oncoming car, or if the street had been lighted and he could have seen her, or if the place of the accident were a public crossing or some place where people — 510 — were in the habit of crossing the tracks, or if anything was made to appear from which the jury could have found that either the respondent or its servants in charge of the ear had failed in the duty imposed upon them by law. Keeping in mind what we have just detailed, it is manifest that the conditions usually surrounding a street car collision between a pedestrian in the street and a motor car are so variant and complex that it is in exceptional cases only that the question of due care, or the want thereof, on the part of either party, is one of law. Where, however, the facts are not in dispute, and the inferences are such that it is self-evident to all reasonable minds that the only 2 acts of negligence complained of were not the proximate cause of the accident, a court may not ignore the duty which is imposed upon it, namely, to pronounce the judgment required by law. But, assuming that we are mistaken with respect to respondent’s negligence, how can appellant avoid her own negligence in going on the track in front of a moving-car? Had any of the conditions that we have just enumerated prevailed at the time of the accident, or if appellant’s attention had been diverted, or if she was confused, or required to choose between two threatened dangers, or if she had relied upon certain conditions which in some way had affected her judgment, or if the evidence showed that her conduct was or might have been influenced by anything which the jury might properly accept as an excuse, then the question of her negligence, like that of respondent, would have been for the jury to determine. The law, however, does not permit a jury to arbitrarily excuse appellant, who was sui juris, and who was in full possession of her senses, from the consequences of her negligent acts or omissions. In order to recover for injuries caused by being struck by a moving car, a plaintiff must at least have been exercising ordinary care for his own safety. By ordinary care, as applied to the going on or crossing street car tracks in cities and towns, we do not mean that a pedestrian is necessarily, under all circumstances, required to look and listen whether a car is approaching him or not. A pedestrian about to go onto or — 511 — cross a street car track may possess information relative to the situation of a car and his surroundings upon which he may rely without specially looking or listening for the approach of such a car. What is'required of one who is about to cross a steam railroad track in this regard is not applicable to one who attempts the same thing with respect to a street car track. Again, one may have looked and have seen a ear coming at a legal rate of speed, and the car may suddenly increase its speed so that a collision might occur when the one who looked assumed, and had a right to assume, that the car would not in so short a space of time arrive at a particular point, and hence that he was in no danger of a collision. All of this has happened, and the courts have passed upon almost innumerable phases of street car accidents. Nothing is better settled, however, than that a pedestrian in going upon a street car track which is being used for the passage of street cars must use his senses and faculties to avoid a collision with a passing car. If, therefore, it is dark and a pedestrian seeks to cross a track at a point where there is no public crossing or where people do not ordinarily cross, he must exercise ordinary care to ascertain whether a car is approaching the point or not, because at such a point under such conditions he has no right to expect a-warning from the operators of the car. Under such circumstances, the advantage is all with the pedestrian. He can see the lights of the car, and, under ordinary circumstances at least, he can also hear it coming, and may thus easily avoid a collision. Can it be said that fair-minded men can differ with regard to whether a person exercised ordinary care or not in going upon a street car track under the circumstances disclosed by the evidence in this case ? Can it be said that a person exercised ordinary care when he admits that he on a dark night walked right onto a track in front of a car which was lighted and which others similarly situated saw approaching for a considerable distance ? If to be absQlutely oblivious to one’s surroundings constitutes ordinary care for one’s safety, then it may be said that appellant exercised such care in attempting to cross the tracks at the — 512 — time and place and under tbe circumstances shown by tbe evidence. Tbe decided cases leave little, if any, room for doubt that appellant was guilty of negligence as a matter of law. On tbis question tbe author of Nellis on Street Railway Accident Law, p. 389, says: “One who voluntarily walks upon a street railway track at nigbt, with full knowledge that a car may come up at any moment, cannot recover damages for injuries, when by ordinary care be could learn of tbe approach of tbe car, and tbe driver by reasonable diligence could not avoid tbe accident.” Tbis text is supported by tbe following among other numerous other cases: Jewett v. Paterson Ry. Co., 62 N. J. Law, 424, 41 Atl. 707; Balla v. Metropolitan St. Ry. Co., 27 Misc. Rep. 775, 57 N. Y. Supp. 746; Thorsell v. Chicago St. Ry. Co., 82 Ill. App. 375; Stowers v. Citizens’ St. Ry. Co., 21 Ind. App. 434, 52 N. E. 710; Curry v. Rochester Ry. Co., 90 Hun, 230, 35 N. Y. Supp. 543; Thompson v. Buffalo Ry. Co., 145 N. Y. 196, 39 N. E. 709. Tbe foregoing cases not only bold that under tbe circumstances disclosed by tbe record in tbis case appellant • was guilty of contributory negligence as a matter of law, but many of them also bold that under facts similar to those in tbis case tbe respondent was not guilty of negligence as matter of law. In so far as appellant’s contributory negligence is concerned, tbe case at bar is in principle not distinguishable from tbe cases of Burgess v. Salt Lake City Ry. Co., 17 Utah 407, 53 Pac. 1013, and Hall v. Railway, 13 Utah 243, 44 Pac. 1046, 57 Am. St. Rep. 726. Indeed, if there is any difference, tbe Burgess case, in view of tbe surrounding circumstances and conditions, was much stronger in favor of tbe injured person than is tbe case at bar. Tbe contention that tbe case of Spiking v. Consolidated Ry. & P. Co., 33 Utah 313, 93 Pac. 838, is an authority supporting appellant’s contention, is untenable. In that case it was contended by tbe company that tbe court erred in instructing tbe jury that it was tbe duty of tbe deceased to “observe tbe car,” instead of requiring him to “look for the caff’ before attempting to cross tbe track. Tbe duty imposed by tbe — 513 — instruction it was contended was. less than that wbicb tbe law required, namely, that a pedestrian before attempting to cross tbe track must either look or listen or do botb. We there held that in view that tbe court bad told tbe jury in other instructions that a pedestrian before going onto a track must exercise ordinary care for bis own safety and to that end must use bis senses was sufficient to inform tbe jury with respect to tbe duty the law required from him. We did not bold in that case, nor do we now bold, that under no circumstances will tbe law require of a pedestrian before attempting to cross a street car track that be look or even listen for an approaching car. Nor did we hold., nor do we now bold, that a pedestrian cannot recover for an injury sustained' by him in a collision with a street car because be did not look for an approaching car. What we do bold is that under tbe facts and circumstances of this case, and when it affirmatively is made to appear that tbe injured person attempted to cross in tbe darkness of night, and that she exercised no care whatever before entering upon tbe track and made no use of her senses at all to ascertain whether a car was approaching tbe point where she attempted to cross, wbicb was not a public crossing nor a place where people were in tbe habit of crossing or of using tbe track, and where there was nothing made to appear wbicb distracted her attention, that such person cannot recover as a matter of law. In tbe Spiking Case, supra, tbe evidence was not only in conflict, but it was such that in view of tbe place where and tbe conditions under wbicb tbe accident occurred tbe question of negligence on tbe part of botb parties was clearly one of fact for tbe jury. Tbe case of Jewett v. Paterson Ry. Co., supra, is in principle precisely like tbe case at bar, while tbe case of Consolidated Traction Co. v. Glynn, 59 N. J. Law 432, 37 Atl. 66, wbicb is referred to in tbe Jewett Case, supra,, is not distinguishable from tbe Spiking Case. Tbe Supreme Court of New Jersey in tbe Jewett Case held tbe plaintiff guilty of contributory negligence as a matter of law, while- in tbe — 514 — Glynn Case tbe same court bad held as we did in tbe Spiking Case, namely, that tbe case was one for tbe jury. From wbat bas been said it follows that in tbis case tbe jury could do no more than either to excuse tbe one or condemn the other of tbe two parties, and do tbis without any evidence upon which to base tbe excuse or tbe condemnation. Tbe judgment therefore should be^ and it accordingly is affirmed. Costs to respondent. McOAETY, J., concurs.