Hall v. Railway Co.

been as vigilant as he ought to have been, but that did not relieve the defendant from performing his duty when approaching the crossing. "It is the duty of a street railway company to exercise ordinary care and diligence to prevent injury to persons lawfully traveling the street or road occupied by its tracks. It is bound to know that the public may use the entire road or street when not in actual use by its cars, and it must employ reasonable means to prevent injury to those who it knows may rightfully so use the road or street; for this knowledge requires that it shall exercise care and diligence to make it reasonably safe to travel the highway in the ordinary mode." Elliott on Roads & S. p. 585; Busw. Pers. Inj. sec. 123; Swain v. Fourteenth St. Railway Co., 93 Cal. 179; Piper v. C. M. & H. P. Railroad Co., 77 Wis. 247; Traction Co. v. Appel Md.), 31 Atl. Rep. 964; Houston City St. Railway Co. v. Woodlock (Tex. Civ. App.), 29 S. W. Rep. 817; Robinson v. Western Pac. Railroad Co., 48 Cal. 409. The city ordinance which the plaintiff attempted to introduce in evidence limited the rate of speed on railroads in Ogden City to eight miles an hour, but whether or not the ordinance applied to this case, and regardless of any ordinance limiting the rate of speed, a railroad company has no right to run its cars at such a high rate of speed, over a public crossing, or through a frequented street in a city, as will endanger public safety, and put those who are rightfully in the use of the street to extra hazards. Grand Trunk Railway Co. v. Ives, supra; Thompson v. N. Y. C. & H. R. Railway Co., 110 N. Y. 636; C. & B. Railroad Co. v. Perkins, 125 Ill. 127; L. & N. R. Co. v. Com., 13 Bush. 388. Some courts hold that where the speed is greater than that permitted by the ordinance, it is negligence per se; but the better rule, and the one sustained by the weight of authority, appears to be that it is a circumstance from which negligence may be inferred, and is always proper to be considered, by the jury, in determining the

Hall v. Railway Co.

question whether or not the railway company was guilty of negligence. Busw. Pers. Inj. sec. 122; Riley v. Salt Lake Rapid Transit Co., 10 Utah, 428; Railway Co. v. Ives, supra; Gulf, C. &. S. F. Railway Co. v. Breitling (Tex. Sup.) 12 S. W. Rep. 1121; Denver Tramway Co. v. Reid, (Colo. App.), 35 Pac. Rep. 269. The conclusion is irresistible that on the question of negligence of the defendant there was ample evidence to be presented to the jury, but counsel for the respondent insist that the appellant was guilty of such contributory negligence as precludes his recovery. It is urged in support of this contention that, had the appellant looked to the north before going upon the track, he would have observed the car, and then could have stopped his horses until it had passed, and thus have avoided the injury; and that, having failed in this, he was the author of his own misfortune. It is not clear from the evidence that if he had looked north immediately before going upon the track, he would have observed the car. In fact, it is shown that from his position, just before his horses stepped upon the track, the electric poles formed some obstruction to the view, and it cannot be presumed that he was reckless as to his own safety. It would be more reasonable to infer from the evidence in the record that he felt secure because of the observation he had made, when in a position where his view was unobstructed. He was lawfully upon the street, and had a right to cross the track, and, attempting to do so at a public crossing, after he had looked and seen no car, had a right to assume that the railway company would give proper warning of the approach of a car, and not run him down recklessly. Persons traveling on a public street, along or across a street railway track, are not held to the exercise of the same degree of care and precaution as they are when traveling along or upon or across an ordinary steam railroad; and this is so because the people have the right to travel on every portion of the highway, while they

Hall v. Railway Co.

have usually no such right on a steam railroad track, and because street cars can be brought under control much more readily than can the cumbersome railroad trains. Elliott on Roads & S. pp. 589, 590; Beach on Contributory Negligence, sec. 89. Even if the appellant drove upon the track incautiously, still the company was bound to the exercise of ordinary care and vigilance to avoid the accident. It could not recklessly and without proper care run its car, and then when injury resulted to a person, because of its recklessness, escape liability, on the ground that such person was negligent in the first instance. The rule of law is no longer open to doubt that where the injured party was negligent, in the first instance, such negligence will not defeat his action if it be shown that the defendant might have avoided the injury by the exercise of ordinary care and reasonable prudence. Both parties have mutual obligations to exercise due care and vigilance to avoid the consequences of their negligence, and the question as to whether negligence was the proximate and direct cause of the accident is one of fact for the jury to determine under the circumstances of each particular case. Shearman & Redfield on Negligence, sec. 99; Everett v. Oregon Short Line, &c. Railway Co., 9 Utah, 340; Leak v. Rio Grande Western Railway Co., 9 Utah, 246; Railway Co. v. Ives, supra; Coasting Co. v. Tolson, 139 U. S. 551; McClain v. Brooklyn City Railroad Co., 116 N. Y. 459; Davies v. Mann, 10 Mees. & W. 545; Little v. Superior Rap. Trans. Railroad Co., 88 Wis. 402; Wines v. Rio Grande Western Railway Co., 9 Utah, 228; Jeffs v. Rio Grande Western Railway Co., 9 Utah, 374; Lake Roland El. Railway Co. v. McKewen (Md.), supra; Beach on Contributory Negligence, sec. 5.

It is evident that the record in this case does not present such a state of facts that all reasonable men must arrive at the same conclusion from a consideration of them, and yet such must be the facts proven before the question of negli

Hall v. Railway Co.

Nor are there

gence becomes one of law for the court. such prominent and decisive facts proven concerning the appellant's conduct on the occasion of the accident as to warrant the court in pronouncing it such contributory negligence that in law he is not entitled to recover. Where the propriety and reasonableness of the acts and conduct of the parties at the time of the accident can be properly or correctly determined only by a consideration of all the circumstances connected with and surrounding the occurrence, it is within the province of the jury to determine whether there was negligence, and, if there was, whose negligence was the proximate cause of the injury. The subject of nonsuit was considered in the case of Lowe v. Salt Lake City (decided at the present term), 44 Pac. Rep. 1050. Our views expressed on this subject in that case apply with equal force to this. See, also, Dederichs v. Salt Lake City Railway Co. (decided at the present term), 44 Pac. Rep. 649.

The other case referred to in the record, which was brought for damages to personal property, and tried before a justice of the peace, was afterwards consolidated with this, and the two were then tried together in the District Court, and heard together on appeal, both controversies resulting from the same accident, and affecting the same parties. Therefore our intention is that this opinion shall apply to both cases. It is manifest that the trial court erred in making the orders in question. This cause must, therefore, be reversed, with costs, and remanded, with directions to the court below to set aside the erroneous orders, and grant a new trial. It is so ordered.

ZANE, C. J., and MINER, J., concur.

NOTE 1.-The following is a partial abstract of the principles decided in the thirty-six cases preceding this note, with respect to the relative rights and duties of electric street railway companies and the general public using highways for purposes of travel:

VOL. VI-39.

Hall v. Railway Co.

NATURE OF EASEMENT.-An electric street railway company is not entitled to the exclusive use of any portion of the highway. Mahoney v. San Francisco, &c. Ry. Co., ante, p. 457. It has the paramount right to the portion of the street covered by its tracks, though not exclusive. Fishbach v. Steinway Ry. Co., ante, p. 547. Has no superior right, except that being confined to track travelers must allow them to pass as occasion requires. Butteli v. Jersey City, &c. Elec. Ry. Co., ante, p. 510; Hall v. Ogden City St. Ry. Co., ante, p. 598; Camden, &c. Ry. Co. v. Preston, ante, p. 523; White v. Worcester Consol. St. Ry. Co., ante, p. 498; Flewelling v. Lewiston & Auburn Horse R. Co., ante, p. 488. Traveler has right to use the track whenever necessary and customary use of street requires or permits him to do so. State, Consol. Traction Co. Pros. v. Reeves, ante, p. 505. Neither trolley car nor traveler has paramount or superior right at crossing. Brozek v. Steinway Ry. Co., ante, p. 542. Vehicle arriving first at crossing has prior right. Zimmerman v. Union Ry. Co., ante, p. 527. DUTY OF COMPANY.-Granted great privileges out of public right, and bound to exercise great care to avoid injury to persons and property. Flewelling v. Lewiston, &c. R. Co., ante, p. 488. Using dangerous propelling power, must be held to degree of care proportioned to danger to public. Hall v. Ogden City St. Ry. Co., ante. p. 598. When approaching public crossing motorman must observe whether track clear and sound gong. Hall v. Ogden City St. Ry. Co., ante, p. 598. And must have car under reasonable control. Citizens' Rapid Trans. Co. v. Seigrist, ante, p. 583. While receiving or discharging passengers at crossing, must not unnecessarily expose pedestrian to danger from collision with car passing on opposite track. Consol. Traction Co. v. Scott, ante, p. 516. Even not at crossings, bound to keep vigilant lookout. Evers v. Philadelphia Traction Co., ante, p. 575. Bound to have car under control, and exercise reasonable diligence to discover obstructions and avoid injury to persons on track. Fishbach v. Steinway Ry. Co., ante, p. 547. Though traveler negligent, still if motorman could by reasonable prudence and ordinary care have avoided the injury, plaintiff's action may not be defeated. Camden, &c. Ry. Co. v. Preston, ante, p. 523; Buttelli v. Jersey City, &c. Elec. Ry. Co., ante, p. 510; Hall v. Ogden City St. Ry. Co., ante, p. 598; Dederichs v. Salt Lake City Ry. Co., ante, p. 592. Though this rule does not apply where plaintiff's negligence was the immediate, direct and proximate cause of the injury. Watson v. Mound City St. Ry. Co., ante, p. 500. Motorman has right to assume that traveler in front has heard warnings given and will increase speed or turn aside in time to avoid injury. Everett v. Los Angeles Consol. Elec. Ry. Co., ante, p. 460; Morrissey v. Bridgeport Traction Co., ante, p. 470. Has right to assume that traveler, after warning, will not attempt to cross immediately in front of car. McLaughlin v. N. O., &c. R. Co., ante, p. 484.

Not bound to anticipate that boy will jump from rear end of wagon about to meet car and step on track in front of car. Mullen v. Springfield St. Ry. Co., ante, p. 492. Not bound to stop at once, on seeing children crossing track far in advance, but only when there is reason to ap