.

While such statutes and ordinances are intended to promote the safety of human beings and domestic animals, yet a just interpretation of them does not limit them to such cases; but such a statute may well be held to extend to the protection of adjacent property; so that the owners of buildings injured by vibrations caused by the moving of trains at a prohibited rate of speed, have an action for damages, founded on the statute.180 It has been held, on the one hand, that a statute limiting the rate of speed of trains passing through towns, cities, and villages, can not be construed to apply only to improved and settled portions thereof;181 and, on the other, that a town ordinance forbidding the running of trains over crossings at a rate of speed exceeding ten miles an hour, does not prohibit a greater rate of speed between crossings within the town limits.182 Another court has gone to the untenable length of holding that where the line is built under a franchise from a city, the jury may consider the ordinances granting the franchise wherein a limit of speed is fixed, although the injury was received at a point without the city limits.183 A statute which confers power on local authorities to regulate the speed of electric cars, with the restriction that a greater rate than fifteen miles per hour shall not be allowed, does not relieve the company from the imputation of negligence where it runs its cars at a less rate of speed.184 It is almost unnecessary to add that, in order to predicate a right to recover damages upon a violation of the statute or ordinance, it must have been the proximate cause of the accident.185

§ 1399. Collisions between Vehicles or Pedestrians and Street Cars at Street Crossings. It is said that, at a street crossing, a street car and a vehicle have an equal right to cross; neither has a superior right to the other, but the right of each must be exercised in a careful

180 Porterfield v. Bond, 38 Fed. Rep. it to recover for personal injuries: 391. Hill v. Rome St. R. Co., 101 Ga. 66; s. c. 28 S. E. Rep. 631. Statute providing that "no person shall ride - at a swift

181 Illinois &c. R. Co. v. Jordan, 63 Miss. 458.

182 Central R. &c. Co. v. Smith, 78 through any street Ga. 694; s. c. 3 S. E. Rep. 397.

183 Cogswell v. West Street &c. Co., 5 Wash. 46; s. c. 31 Pac. Rep. 411; 52 Am. & Eng. Rail. Cas. 500; 7 Am. Rail. & Corp. Rep. 48.

184 Laufer v. Bridgeport Traction Co., 68 Conn. 475; s. c. 2 Chic. L. J. Wkly. 287; 37 Atl. Rep. 379.

183 Vol. I, § 82; Davidson v. Schuylkill Traction Co., 4 Pa. Super. Ct. 86. A city ordinance regulating the "running speed of trains and engines" is not applicable to a street railway, and is inadmissible in evidence in an action brought against

er pace than at the rate of five miles an hour" applies to street railroads: Bly v. Nashua St. R. Co., 67 N. H. 474; s. c. 30 L. R. A. 303; 32 Atl. Rep. 764. As to an ordinance permitting a greater speed when dummy engine runs forward than backward, see Highland Ave. &c. R. Co. v. Sampson, 112 Ala. 425; s. c. 20 So. Rep. 566. When an ordinance limiting rate of speed is not repealed by implication: Martineau v. Rochester R. Co., 81 Hun 263; 62 N. Y. St. Rep. 722; 30 N. Y. Supp. 778.

manner so as not to interfere with the right of the other.186 When, therefore, the motorman, approaching a crossing, discovers a vehicle which has approached the crossing first, in the act of proceeding across, it is his duty to slow up his car so as to allow the vehicle to cross in safety.187 Obviously, the rule of reasonable care which the law puts upon the drivers, gripmen and motormen of street cars at all times, imposes on them a more exacting attention when they approach street crossings, in a crowded city where vehicles and pedestrians may always be expected in front of them. The failure, under such circumstances, to ring the bell, sound the gong, or give other proper warning, is negligence per se, where there is a city ordinance requiring such precautions,188 and is undoubtedly evidence of negligence to be submitted to a jury under all circumstances, whether there is such an ordinance or not. It will be for the defendant to excuse such failure, but it will not be able to do so by showing that the gripman's hands were otherwise necessarily engaged, and that the conductor was temporarily absent from his post.199

188 Ante, § 1374, et seq.; Bernhard v. Rochester R. Co., 68 Hun (N. Y.) 369; s. c. 51 N. Y. St. Rep. 880; 22 N. Y. Supp. 821; Eckington &c. R. Co. v. Hunter, 23 Wash. L. Rep. 401; Omaha St. R. Co. v. Cameron, 43 Neb. 297; s. c. 61 N. W. Rep. 606; Huber v. Nassau &c. R. Co., 22 App. Div. 426; s. c. 48 N. Y. Supp. 38; Chapman v. Atlantic Ave. R. Co., 14 Misc. 384; s. c. 70 N. Y. St. Rep. 753; Degnan v. Brooklyn &c. R. Co., 14 Misc. 408; s. c. 70 N. Y. St. Rep. 755; 35 N. Y. Supp. 1047; Hall v. Ogden &c. R. Co., 13 Utah 243; s. c. 44 Pac. Rep. 1046; 4 Am. & Eng. Rail. Cas. (N. S.) 77; Bresky v. Third Ave. R. Co., 16 App. Div. 83; s. c. 45 N. Y. Supp. 108. In one case it was held not error for the court to refuse to charge that the street car had the right of way over a truck approaching the crossing: Oniel v. Dry Dock &c. R. Co., 129 N. Y. 125. Street car company liable for suddenly starting its car, standing near a crossing, colliding with the wagon of a person who has started to cross, he being without fault: Piper v. Pueblo City R. Co., 4 Colo. App. 424; s. c. 36 Pac. Rep. 158; Ellick v. Metropolitan St. R. Co., 15 App. Div. 556; s. c. 44 N. Y. Supp. 523.

187 Bernhard v. Rochester R. Co., 68 Hun (N. Y.) 369; s. c. 51 N. Y. St. Rep. 880; 22 N. Y. Supp. 821. Driscoll v. Market St. &c. R. Co.,

188

189 Driscoll v. Market St. Cable R. Co., 97 Cal. 553; s. c. 32 Pac. Rep. 591; Fandel v. Third Ave. R. Co., 15 App. Div. 426; s. c. 44 N. Y. Supp. 462. It is a mere trifling with justice to advance the plea, in excuse of such failure, that the ordinance in terms requires the persons immediately in charge of the car, and not the company, to give the warning: Driscoll v. Market St. Cable R. Co., 97 Cal. 553; s. c. 32 Pac. Rep. 591. Where a bicyclist was riding between two tracks of a street railway in the direction in which the car was approaching from behind him, and did not look back or give any indication that he heard the gong, but suddenly turned and attempted to cross the track in front of the car and was run over,-it was held that the motorman was not guilty of negligence in approaching at the usual speed until the wheelman, by turning, put himself in danger: Gagne v. Minneapolis St. R. Co. (Minn.), 79 N. W. Rep. 671.

§ 1400. Further of Injuries at Street Crossings.-On the other hand, the absence of any municipal ordinance requiring the ringing of a bell by the operators of a street cable car line at street crossings or elsewhere, does not relieve the company from liability for personal injuries to one sustained by being struck by a car, which would have been prevented if the gripman had not negligently failed to give his signal upon observing the person injured in a dangerous position.190 Unless required to do so by statute or by a valid municipal ordinance, a street railway company is not required to erect signs or to maintain flagmen or gates at street crossings, although the district may be populous, and although the railway is operated by cable or by electric power.191 In the absence of a statute or of a valid municipal ordinance, an electric railroad company owes no duty to stop its cars before reaching public highway crossings, for the motormen to look and listen, where there is no apparent reason for so doing;192 but a municipal ordinance compelling passenger cars, operated by trolley or electric power, to come to a full stop before crossing intersecting streets, is a reasonable exercise of power to regulate the use of streets and highways.193

§ 1401. Further of Such Injuries.-The introduction of new forms of vehicles and of new motive power in street railways, has not impaired the right of foot-passengers to safe passage at street crossings; but the speed of cars must be regulated and such warning given of their approach, at whatever cost of pains and trouble, that the footman using ordinary care may, in the absence of unavoidable accident, cross in safety.194 Manifestly, the increase of danger to the public at street crossings demands a corresponding increase of vigilance and energy on the part of the driver, gripman, or motorman, and he is bound to use that degree of care and prudence which the safety of those who, he must in good reason know, are, or are likely to be, im

190 Mitchell v. Tacoma R. &c. Co., 9 Wash. 120, 125; s. c. 37 Pac. Rep. 341.

191 Eckington &c. R. Co. v. Hunter, 6 App. D. C. 287; s. c. 23 Wash. L. Rep. 401; Jacquin v. Grand Ave. Cable Co., 57 Mo. App. 320. A street railway company is not required by Mo. Rev. Stat., § 2005, to maintain a crossing or the approach thereto at a point where another street enters into, but does not cross the one on which the road is located: Ott v. Kansas City &c. R. Co., 58 Mo. App. 502.

192 Savannah &c. R. Co. v. Beasley, 94 Ga. 142; s. c. 21 S. E. Rep. 285.

193 State v. Cape May, 59 N. J. L. 404; s. c. 36 L. R. A. 657; 6 Am. & Eng. Rail. Cas. (N. S.) 329; 36 Atl. Rep. 678.

194 Cincinnati St. R. Co. v. Snell, 54 Ohio St. 197; s. c. 35 Ohio L. J. 140; 32 L. R. A. 276; 43 N. E. Rep. 207. Further as to the duty of street railways towards pedestrians at crossings, see Altemeier v. Cincinnati St. R. Co., 4 Ohio N. P. 224; s. c. 4 Ohio Leg. News, 300.

periled by the train, demands of him.195 This duty extends to the protection of the aged and infirm, as well as to those who are better. able to look out for themselves. It is therefore his duty to take special care, on approaching a crossing, to have his car sufficiently under control, to enable him to avoid collision with aged and infirm persons on foot, whose infirmities are plainly in evidence, and who may be crossing the track at a street crossing.196 He ought to notice whether or not the track is clear when he approaches a public crossing, and to sound the gong as warning. 197 If he sees another car standing still at a crossing in the act of receiving or discharging passengers, he ought to take such precautions as will not expose them to unnecessary danger. 193 While it is not negligence per se for a street car driver to drive his horses at a trot over a street crossing, under all circumstances,199 yet circumstances may exist where negligence may be rightfully imputed to him if he fails to check the speed of his car at a crossing,—as where the motorman of an electric car fails so to check his speed, and in consequence runs over a loaded truck.2 The sudden stopping of a car on a crossing, especially in violation of a municipal ordinance,-whereby a funeral procession is suddenly stopped so that the pole of one carriage is driven into the carriage in front of it, will furnish evidence of negligence warranting a recovery of damages from the company.201 The sudden starting of a car which has been standing near a street crossing, bringing it into collision with a wagon which has started to cross the track in front of the standing car, will furnish evidence of negligence, especially where it appears that neither the motorman nor the conductor was in sight on the car when it started.20

202

105 West Chicago St. R. Co. v. McCallum, 169 Ill. 240; s. c. 48 N. E. Rep. 424; aff'g s. c. 67 Ill. App. 645. 19 Haight v. Hamilton St. R. Co., 29 Ont. Rep. 279.

157 Hall v. Ogden &c. R. Co., 13 Utah 243; s. c. 44 Pac. Rep. 1046; 4 Am. & Eng. Rail. Cas. (N. S.) 77. Application of this rule where two streets intersect each other at an acute angle: Brozek v. Steinway R. Co., 10 App. Div. 360; s. c. 48 N. Y. Supp. 345.

198 Consolidated Traction Co. v. Scott, 58 N. J. L. 682; s. c. 33 L. R. A. 122; 34 Atl. Rep. 1094; 55 Am. St. Rep. 620; 4 Am. & Eng. Rail. Cas. (N. S.) 371. Compare West Chicago St. R. Co. v. Nilson, 70 Ill. App. 171.

200

App. Div. 281; s. c. 42 N. Y. Supp. 512.

200 Hergert v. Union R. Co., 25 App. Div. 218; s. c. 49 N. Y. Supp. 307. Evidence of negligence for gripman to fail to slacken speed of seven miles an hour, striking a cart on a crossing: Reilley v. Third Ave. R. Co., 16 Misc. (N. Y.) 11; s. c. 73 N. Y. St. Rep. 289; 37 N. Y. Supp. 593; aff'g s. c. 14 Misc. (N. Y.) 445; s. c. 70 N. Y. St. Rep. 733; 35 N. Y. Supp. 1030.

201 Mueller v. Milwaukee St. R. Co., 86 Wis. 340; s. c. 21 L. R. A. 721; 56 N. W. Rep. 914.

202

Piper v. Pueblo City R. Co., 4 Colo. App. 424; s. c. 36 Pac. Rep. 158. Evidence tending to show negligence and to support a judgment 1 Lavin v. Second Ave. R. Co., 12 for the plaintiff, where the motor

§ 1402. Collisions with Other Street Cars at Street Railway Crossings. In the absence of any right of precedence, by usage or otherwise, at the intersection of two street railway tracks, cars of the different companies stand on the footing of equality, each lawfully using the public street and each owing to the other the duty of exercising reasonable care while doing so.203 The rule applicable to the relative rights of street cars and other vehicles at street crossings, which makes their rights substantially equal,204 applies as between. cable or electric cars on the one hand, and horse cars on the other. In the absence of a statutory, municipal, or conventional regulation establishing a right of precedence, if the horse car comes upon the crossing first it will be the duty of the cable car or of the electric car, to slacken speed and allow the horse car to pass.205 Where there is a city ordinance establishing a right of precedence, the failure to comply with it will not, in the view of one court, be negligence per se, but will be merely evidence of negligence.206 Where a passenger on a cable car is injured in consequence of the negligent failure of the gripman to stop the car at the crossing of another street railway, so as to avoid a collision with an electric car coming on such railway, it will be no defense on the part of the cable company that the motorman of the electric company was also negligent, or that a contributing cause of the accident was the fact that a watchman, employed at the crossing by the companies jointly, signaled both cars to proceed. 207 The driver of a horse car, on approaching the crossing of an electric railway, is justified, in the absence of visible evidence to the contrary, in acting upon the presumption that the approaching electric car is moving within the maximum rate of speed prescribed by law, and that its motorman will respect the rights of the horse car upon its arrival first at the crossing, either by slacking speed, or coming to a full stop, so that the horse car may pass in safety.208 It has been held that