Washington Ry. & Electric Co. v. Stuart

SMYTH, Chief Justice. This is an action in tort. Stuart sued the street railway company for damages resulting to him from a collision on Connecticut avenue and N street, between one of the company’s cars and his automobile, due, as he alleges, to the negligence of the company. From a judgment in his favor the defendant prosecutes an appeal. There is testimony that at the time of the accident the car was running “at least 30 miles an hour.” The company did not deny this, but at the completion of the plaintiff’s testimony moved for a peremptory instruction to the jury to return a verdict in its favor, on the ground that the plaintiff’s right to recover was barred as a matter of law by his contributory negligence. The motion was overruled. The company electing to stand on its motion, the court submitted the question of contributory negligence to the jury, and also advised it that if it found that plaintiff was guilty of such negligence he could still recover, if the motorman operating the car, after he had discovered, or by the exercise of reasonable care could have discovered, plaintiff’s peril, might have prevented the accident by the exertion of reasonable care. The company asserts that there is nothing in the testimony to support either instruction, and assigns as error the giving of each. These are the only matters complained of. [1] It is urged by the company that the evidence conclusively established that Stuart failed to look and listen before entering upon the street car track, and that because of this he is chargeable, as a matter of law, with negligence contributing to tlie accident. Many decisions are cited in support of the proposition. Most of them deal with the duty of a person about to cross the tracks of a steam railroad. The rule in — 634 — such a situation is quite different from that which applies in a case like the one before us. A railroad train or an interurban car is operated on the company’s right of way. No one has a right to assume that, as it approaches a street or road crossing, it will be under control, with a view of stopping promptly if the safety of a pedestrian or other person crossing the track requires it. This distinction has been recognized and applied many times, not only by this court, but by the courts of other jurisdictions. Chief Justice Alvey, in Capital Traction Co. v. Lusby, 12 App. D. C. 295, 302, said: “The principle of look and listen, of general application in cases of steam railroad crossings, can hardly be applied in its strict sense to the crossing of a street railroad, and therefore it could have no proper application to cases like the present.” This view was followed in City & Suburban Ry. Co. v. Cooper, 32 App. D. C. 550, 557, Capital Traction Co. v. Apple, 34 App. D. C. 559, 566, and Capital Traction Co. v. Crump, 35 App. D. C. 169, 180, and is the settled law of this court. It is also in harmony with the holdings in other jurisdictions. In Detroit United Railway v. Nichols, 165 Fed. 289, 296, 91 C. C. A. 257, which was a street car case, it was urged that, according to the decision of the Supreme Court of the United States in Northern Pacific Ry. Co. v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014 (a steam railroad case), the plaintiff was guilty of contributory negligence as a matter of law by failing to look and listen before crossing a street car track. Judge Lurton, afterwards Mr. Justice Eurton, speaking for the Circuit Court of Appeals for the Sixth Circuit, rejected the argument. He said: “But there is a distinction between the care usually exercised by reasonably prudent persons in crossing the tracks of a commercial steam railway and that exercised in crossing a street railway track upon the streets of a city. Street railway tracks are necessarily to be crossed with great frequency by reason of their occupancy of public streets. * * * There are often times and places when passing cars succeed each other so closely that cars are always very near the stream of crossing travel. Again, the facility with which such cars are stopped and the frequency of their stopping makes the danger measurably less than that incurred at an ordinary railroad crossing. * * * There is no absolute standard of negligence applicable to all cases. * * * Conduct of a traveler crossing a street railway track might not be so imprudent as to constitute negligence, as a matter of law, which at a commercial railway crossing would be legal negligence." In support of his holding the judge cited Cincinnati Street Ry. v. Whitcomb, 66 Fed. 915, 14 C. C. A. 183, Tacoma Ry. Co. v. Hays, 110 Fed. 496, 49 C. C. A. 115, Marden v. Portsmouth R. R. Co., 100 Me. 41, 60 Atl. 530, 69 L. R. A. 300, 109 Am. St. Rep. 476, Ryan v. Railroad, 123 Mich. 597, 82 N. W. 278, and McQuisten v. Detroit Street Ry., 147 Mich. 67, 110 N. W. 118. Thompson,'in volume 8, the latest volume, of his work on Negligence, section 1443, says, as the result of his study of the cases: “The general doctrine is that failure of a traveler to look and listen before attempting to cross a street railway track is not negligence per se; but, when the undisputed evidence establishes exceptional circumstances which so conclusively indicate negligence in failing to look and listen that there can be no reasonable basis for drawing a different conclusion, the question is one of law for the court. The duty to look and listen depends largely on the circumstances of each case.” > — 635 — This, we think, states the correct rule of law, and is in harmony with the great weight of authority. Any expressions to the contrary in previous decisions of this court are overruled. Applying this doctrine to the case at bar, was the plaintiff guilty of such negligence as required the giving of the peremptory instruction? [2, 3] We must remember, in considering this, that the burden of establishing contributory negligence was on the street railway (Atchison v. Wills, 21 App. D. C. 548, 563; Railroad Co. v. Gladmon, 15 Wall. 401, 407, 21 L. Ed. 114), and that we must give to the plaintiff the benefit of the most favorable construction which the testimony will admit of (Thomas R. Riley Lbr. Co. v. McHarg, 47 App. D. C. 389, 390, and cases cited therein). [4-7] First, does the evidence clearly and conclusively establish that Stuart did not look and listen before entering the zone of danger? He drove his automobile up Connecticut avenue to the south line of N street, intending to go to a point on that street west of the avenue. When he reached the south line of the street, he stopped to allow a north-bound car to pass. After it had done so, he looked to the south and saw another street car coming north, about a block away. Then he looked north, and saw that the car which had passed was a little more than a block from him. He then signaled with his hand his intention to cross the avenue. He started, running at the rate of 2 miles an hour. As he turned onto the north-bound track, he looked to the north again and saw no car approaching. When he was about halfway across the south-bound track he was struck. From the time he-started until the collision he traveled about 40 feet. At one time he said that as he was “about to enter upon the south-bound track he still had an unobstructed view up Connecticut avenue and saw no car.” From this it would appear that he looked then, but later, when asked directly at what point he was when he last looked north, he said that it was when he “was making the turn.” When “he turned on the north-bound track he looked to the north, but did not see the street car.” South-bound cars turn onto the avenue at Dupont Circle, 645 feet north from where he was, and he could not see a car until it had made the turn. Whether his failure to see a car when he entered upon the north-bound track was due to ihe obstruction of the north-bound car which had just passed, or to the fact that the south-bound car had not yét come around the curve at Dupont Circle, does not appear. On the hypothesis that it was his duty to look before he entered the zone of danger, what were the limits of that zone? The moment he went upon the north-bound track he was menaced by the oncoming car from the south, and as he advanced he came within range of any car that might be approaching from the north. There is no evidence that lie could have safely stopped between the tracks. After he got onto the north-bound track he was compelled to go forward or backward. Lt appears, then, that the zone of danger commenced about 2 feet east of the north-bound track and extended to a point the same distance west of the south-bound track. Before entering it he looked, and saw no car coining from the north. After he had entered it, looking either north or south would have availed him nothing. He was, as we have said, compelled to go forward or backward. Knowing that there was a car advancing from the south, and that none was coming from the north — 636 — when he entered the danger sphere, he proceeded. Whether in doing so he displayed proper caution for his own safety was a question to be disposed of by the jury, and not by the court. Second. The company says that, if he had looked before entering the sphere of danger, he would have seen the car, and, since he did. not see it, he did not look.' Assuming that he did not look, he cannot be charged with knowledge ot anything hut what he would nave discovered if he had looked. Where was the south-bound car at that time ? We can determine this only by considering the speed at which he and the street car were traveling. Placing on the testimony the construction most favorable to the plaintiff, as we must do, he was going at the rate of 2 miles an hour, and the car at" 30 miles an hour. Between the time he started and the time he was struck he traveled 40 feet. How far he went after he started, and before he made tire turn onto the north-bound track, we do not know. If it is material to know, then the street car company has failed to furnish us with all the facts necessary to establish their proposition that he was guilty of contributory negligence. It must have 'been some distance; let us say it was 10 feet. Hence, from the time that he looked until he was struck, he traveled 30 feet, which required 10 seconds, going at the rate of 2 miles an hour, or 3 feet a second. The car was running at the rate of 30 miles an hour, or 44 feet a second. In 10 seconds, it would travel 440 feet. Therefore, as he turned upon the north-bound track, if he had looked he would have seen the car on the south-bound track approaching at a distance of 440 feet away. If, however, we do not deduct the 10 feet, but say that he traveled 40 feet from the time he entered the zone of danger, the street car was 572 feet away at that moment. Was he under those circumstances bound to stop and wait until the car passed? “Surely, one seeing a car coming a considerable distance away is not bound to stop and wait for it to pass. If such were the rule one could rarely cross a street, without being guilty of negligence, where cars follow each other at short intervals.” Capital Traction Co. v. Apple, 34 App. D. C. 559, 570. But it is urged that, if he had looked, he would have discovered that the car was approaching at a furious rate of speed, and in those ciw cumstances he was not justified in attempting to cross. He could not give all his attention to the south-bound car. He was also required to look out for the north-bound car, as well as look ahead, and he was required to give attention to the operation of the automobile. Besides, he had a right to assume that the street car was moving at a lawful rate of speed. City & Suburban Ry. v. Cooper, 32 App. D. C. 550, 557; Capital Traction Co. v. Apple, 34 App. D. C. 559, 572. If, however, he could have studied the speed of the street car as it approached him, he might have realized that it was running at a very high rate. He did not have this opportunity. He would have been looking .almost directly into( its face, and it is a matter ofc common knowledge that under such circumstances it is very difficult to judge of the speed of an approaching vehicle. But, in view of the other matters which claimed his attention, all he could have done was to glance at the car as it bore down upon him. Whether or not he could, under those circumstances, have appreciated its speed, was a fair question of fact. Assuming, however, that he did appreciate that the car, 440 feet away, was going at the rate of 30 miles an hour, he had a right to act — 637 — upon the theory that the motorman was looking ahead, as his duty required, and would, in the performance of that duty, bring the car under control before reaching the crossing, so as to be able to stop it there if necessary. Capital Traction Co. v. Apple, supra, 34 App. D. C. 571, where many cases are cited. In that case it was said: “ * * * It is the duty of the operator to have his car under ready control, so that it may be readily stopped when the danger is found to bo imminent.” See, also, McDermott v. Severe, 25 App. D. C. 276. We are not prepared to say that a person about to cross a street car track in the city, who sees a car 440 feet away, more than an ordinary block, running toward him at a high rate of speed, is bound to stop and let it pass, or subject himself to the charge of contributory negligence, in the event of an accident resulting in his injury, if he does not do so. Whether or not, under all the circumstances, Stuart was guilty of lack of proper care for his own safety, was a question for the jury. [8] We now come to a consideration of the appellant’s other contention, namely, that there was no evidence justifying the application of the doctrine of “last clear chance” or “discovered peril.” It is pointed out that no witness testified that the car could be stopped in time to avoid the accident after the motorman discovered, or should have discovered, the dangerous situation of the plaintiff. This is true, and in consequence the case is very weak in that respect. But none the less there are, in our opinion, circumstances in the record sufficient to justify the inference that the car could have been stopped, if proper precaution had been taken, before the collision took place. The testimony tended to show that just prior to the collision the motorman was in conversation with a person standing beside him on the front platform, that the car was running at the rate of 30 miles an hour, that no gong was sounded, and that there was no appreciable change in the speed immediately prior to the accident. This indicates that the motorman did not see Stuart until he struck him, and that he made no effort whatever to reduce the speed of the car before the collision. In fact, the testimony is conclusive upon the point that the speed of the car was not reduced before the automobile was hit. As we have indicated, when Stuart entered the place of danger, the car was 440 feet away. If the motorman had been looking, he would have discovered him at this point, and would have seen that if Stuart stopped he might be struck by the north-bound car, and that if he advanced he might be struck by his car unless it was stopped. He had 440 feet in which to bring the car under control and stop it. According to the uncontradicted testimony, the car was stopped within 45 feet after the impact. It is true the weight of the automobile must have contributed something towards retarding the speed of the car. How much we cannot say definitely, but considering the distance the car was away when Stuart’s peril was, or should have been, discovered, and the distance within which it was stopped after it struck, we think it was a fair question for the jury to say whether or not the motorman, if he had endeavored to do so, could have brought the car to a standstill — 638 — before the accident took place. To withdraw that question from the consideration of the triers of fact would have been improper. The judgment is affirmed, with costs. Affirmed. Justice SIDDONS of the Supreme Court of the District sat in pláce of Associate Justice ROBB, who took no part in the consideration or decision of this case.