Woeckner v. Motor Co.

Lizzie A. Woeckner v. ERIE ELECTRIC MOTOR COMPANY.

Pennsylvania Supreme Court, July 15, 1896.

ELECTRIC STREET RAILWAY-DUTY TO CHILD IN STREET.

The motorman of a trolley car saw a child three years old start from the sidewalk toward the track twenty-five feet distant. There was testimony that he brought the car nearly to a full stop, and then, seeing the child turn from the track, released the brake. The child suddenly turned across the track and the car struck her. Held, that the question of the motorman's negligence was properly submitted to the jury.

APPELL by defendant below from judgment of Erie County Court of Common Pleas. Facts stated in opinion.

S. A. Davenport and J. M. Sherwin, for appellant.

S. M. Brainerd, Geo. H. Higgins, T. A. Lamb and E. A. Walling, for appellee.

FELL, J.: The plaintiff was three years and ten months of age at the time of her injury. Accompanied by her brother, who was ten years old, she attempted to cross a street on which the cars of the defendant were running. The street was 100 feet wide, with a roadway 64 feet in width. The car tracks were 25 feet from the curb, and the street was at the time clear of obstructions. The plaintiff crossed the street diagonally from the curb to the tracks, in the direction in which the car was running. She was seen by the motorman when she started to cross, and when the car was 100 feet from the point where she reached the tracks. The electric current had been turned off, and the car was running slowly, on a slightly declining grade. The testimony in the plaintiff's behalf was that she had not changed her course or stopped from the time

Woeckner v. Motor Co.

she left the curb until she was struck by the car, and that no effort was made by the motorman to stop the car until she was within a few feet of the tracks. The testimony produced by the defendant tended to show that the plaintiff, when within five or six feet of the tracks, and eight or ten feet from the car, turned towards the sidewalk; that the motorman had brought the car nearly to a full stop, and then, assuming that there was no danger of an accident, released the brakes; and that, as the car moved forward, the plaintiff suddenly turned, and ran in front of it.

Because of her age, contributory negligence could not be imputed to the plaintiff. If her witnesses were correct in their statements, the motorman was guilty of negligence in not attempting to stop the car until the moment of the accident. If the defendant's witnesses were correct, the only debatable ground now presented by the record is whether the plaintiff, by changing her course after having turned towards the sidewalk, came so suddenly and unexpectedly upon the track as to relieve the motorman from the charge of negligence, and the company from liability. The case is not that of a child coming suddenly in front of a moving car at a place where its presence on the street was not to be expected. This child was seen by the motorman approaching the tracks in front of his car. He knew of the danger in time to guard against it. In a measure he did so. According to his own testimony, he had full control of the movements of the car. He brought it almost to a stop, and could readily have stopped it entirely before the child reached the track. Thus far he was careful. But, when he saw the child turn from the tracks, he released the brakes, and let the car go forward on a down grade. She was then within ten feet of the front of the car, and within five feet of the tracks. She was running thoughtlessly and playfully in front of her brother, looking back over her shoulder towards him, and

66

Rapid Transit Co. v. Seigrist.

away from the direction in which the car was coming. Her brother, understanding the danger of which she was unconscious, was running after her, and was within a very few feet of her. If the motorman had held the car a moment, or taken the brakes partly off, and allowed it to move forward slowly, the accident would have been avoided. When asked, "Why did you not wait until she got back a safe distance from the track?" he replied: "She was going on. We don't have time to stand around. When she started back from the curb, I took it for granted she was going back." Whether he took too much for granted, and acted imprudently, was for the jury. If the jury accepted the statements of the defendant's witnesses, this was the turning point of the case; and it was submitted by the learned judge with great care and ability, and with entire fairness to both parties. The jugdment is affirmed.

NOTE.-See note to Hall v. Ogden City St. Ry. Co., post.

CITIZENS' RAPID TRANSIT COMPANY. v. SOLOMON SEIGRIST.

Tennessee Supreme Court, January 30, 1896.

(96 Tenn. 119.)

ELECTRIC STREET RAILWAY—INJURY TO TRAVELER.

A traveler approaching an electric street railway is not bound, as matter of law, to look carefully up and down the track before venturing upon it. A traveler approaching the crossing of an electric street railway, while bound to be careful on his own part, has the right also to assume that those having charge of an approaching car will be careful. Therefore held that a traveler who, when ten feet from the track, looked and saw a car approaching 200 or 250 yards away, was not guilty of contributory neg ligence, as matter of law, in attempting to cross the track ahead of the car without looking a second time for it.

Rapid Transit Co. v. Seigrist.

A motorman in charge of an electric car who, knowing he is approaching a public crossing, and seeing a traveler approaching the track and near it, fails to have his car under reasonable control, is guilty of negligence. Cases of this series cited in opinion, appearing in bold faced type: Watson v. Minneapolis St. Ry. Co., vol. 4, p. 510; Hickman v. Union Depot R. Co., vol. 4, p. 463; Bernhard v. Rochester Ry. Co., vol. 4, p. 506; Shea v. St. Paul City Ry. Co., vol. 4, p. 481.

APPEAL by defendant below from judgment of Circuit Court, Davidson county. Facts stated in opinion.

Steger, Washington & Jackson, and P. D. Madden, for Transit Company.

Lemuel R. Campbell and J. S. Pilcher, for Seigrist.

CALDWELL, J.: Solomon Seigrist brought this suit against the Citizens' Rapid Transit Company to recover damages for personal injuries which, he averred, it wrongfully and negligently inflicted upon him. The trial, before court and jury, resulted in verdict and judgment in favor of the plaintiff for $650, and the defendant, after motion for a new trial had been overruled, appealed in error.

The Citizens' Rapid Transit Company was a regularly chartered street car company, operating electric street cars upon Cedar street in the city of Nashville, and upon the Charlotte pike to West Nashville, by one continuous line. Both Cedar street and the Charlotte pike were public highways, properly in constant use by the general public, as well as by the street car company.

Solomon Seigrist, the plaintiff below, was a baker, residing in West Nashville, and furnishing bread daily, from his covered wagon, to his customers in Nashville.

The injuries complained of in this case were caused by a severe collision, in which one of the street car company's outgoing cars ran against and overturned his wagon, while he, as driver, returning to his home, was passing across the company's track at a regular and well known crossing

Rapid Transit Co. v. Seigrist.

on the Charlotte pike. That the injuries were thus inflicted, and that they were of a serious nature, is not disputed; but the company, through its counsel, contends that the collision was the result of such negligence on the part of Seigrist as to bar his action, and, therefore, that there is no evidence to support the verdict.

What were the relative and respective legal rights and duties of the two parties at the particular time and place? Undoubtedly, they both had the legal right to use that part of the public highway upon which the collision occurred; but, since they could not use it at the same moment of time, it was the duty of each to so use it as not to injure the other, or unreasonably impede the other's use. The right of neither was superior to that of the other. The duty of neither was more exacting than that of the other. Their rights and their duties were equal. Both were bound to exercise reasonable care and diligence. to prevent a collision, and each was allowed to assume that the other would do so, and to act accordingly. It was the duty of Seigrist to look and listen, and to have his horse under reasonable control, as he approached the crossing; and so it was the duty of the motorman to survey the highway ahead of him, and to have his car under reasonable control as he approached the crossing. Neither one, reaching the place first, would have been under any obligation to stop and wait for the other to approach and pass; but either, in that situation, would have been authorized. to proceed on his way, assuming that the other, being in reasonable control of his vehicle, and otherwise in the exer. cise of ordinary care, as he should be, would not collide with him; and no mistake he might have made in that rightful assumption could be charged to him as negli gence, unless the lack of such control and care on the part of the other person was apparent to him at the time. Neither party, in such a case, could excuse himself for going into obvious danger if he knew it was impending.