Hall v. Railway Co.

Schneidau v. New Orleans & Carrollton Ry. Co., Supreme Court, May 4, 1896 (19 So. Rep. 918.) The following is the head-note by the court:

"Where a child of the age of four years (a passenger on a street railway car) is accompanied by a person of sufficient age and discretion to take care of it, is put off the car, at the child's stopping place, by the conductor, and the person having charge of the child follows it, and both reach the street in safety, and are waiting for the passing of a car on a parallel track, the railway company is not responsible in damages if the child runs towards the passing car, strikes it, and is thrown down and injured."

Nelson v. Crescent City R. Co., Supreme Court, Feb. 15, 1897 (21 So. Rep. 635). The following is a portion of the official head-note: "If with due attention the motorman of a street car could and should have perceived a child of tender age on or straying near the tracks under circumstances indicating the great danger of the child, the motorman should seasonably use the preventive means to avert the accident; and his failure in that respect, resulting in injury to the child, will make the railroad company liable for the injury.

MARYLAND. — Baltimore Traction Co. v. Helms, Court of Appeals, Jan. 5, 1897 (36 Atl. Rep. 119). The only question really decided was that "one who deliberately walks out from behind a street car from which he has alighted, and attempts to cross a public street, without using his powers of observation, and is injured by an approaching car, which injury could have been avoided by the use of the most ordinary care, will not be allowed to recover."

MASSACHUSETTS.- Galbraith v. West End St. Ry. Co., Supreme Court, April 7, 1896 (165 Mass. 572). Following requests to charge held properly refused: (1) That when the motorman saw that the traveler was proceeding as though to cross the track, it would be his duty, so far as he was able, to reduce the speed of his car, and stop the same before reaching the point where the traveler was crossing. (2) That the traveler had a right to cross the track, and to assume the motorman would control the car, if he was at a sufficient distance to do so.

Hewitt v. Taunton St. Ry. Co., Supreme Judicial Court, Feb. 23, 1897 (46 N. E. Rep. 106). Held, that the question of contributory negligence of parents in permitting a child four years old to stray upon the track of a trolley railway was for the jury.

MICHIGAN. Graff v. Detriot Citizens' St. Ry. Co., Supreme Court, March 31, 1896 (67 N. W. Rep. 815). Held, that plaintiff was chargeable with contributory negligence in attempting to cross in front of a trolley car which he saw, but miscalculated his chances.

Guilloz v. Ft. Wayne & Belle Isle Ry. Co., Supreme Court, Dec. 30, 1895. The following is the head-note to the report of the case in 65 N. W. Rep. 668: "Where a person drives in front of an electric car, and is struck by it while attempting to turn off the track, the street railway is not liable, where there was no evidence that the speed was dangerous, or that the gong was not sounded."

MISSOURI.- Van Natta v. Peoples' St. Ry. Co., Supreme Court, March 3,

Hall v. Railway Co.

1896 (133 Mo. 13.) Action for damages for injury to person who upon leaving a car was run down by a car upon the other track. Questions as to charge to jury.

NEW JERSEY.-Consolidated Traction Co. v. Chenowith, Supreme Court, Feb. 20, 1896 (58 N. J. Law. 416). Held, that an instruction that the measure of the duty of the plaintiff in crossing a public highway, traversed by surface cars propelled by electricity, was to use such precaution and care for his safety as a reasonably prudent man would use under the circumstances, was an entirely correct judicial exposition of the law. That it was not error to refuse to tell the jury what inferences were to be drawn from certain states of facts if they found such facts to exist.

NEW YORK.- Chapman v. Atlantic Ave. R. Co., Brooklyn City Court, General Term, November, 1895 (14 Misc. Rep. 404). Company has no paramount right of way as against vehicles crossing its tracks on intersecting street.

Wynne v. Atlantic Ave. R. Co., Brooklyn City Court, General Term, November, 1895 (14 Misc. Rep. 414). The person injured was a passenger on a horse car, with which a trolley car collided. Held, that it was the duty of the motorman to maintain such a distance between his car and the one in front of him, or to so reduce his speed, that he could stop in time to prevent collision.

Faurot v. Brooklyn Heights R. Co., Brooklyn City Court, General Term, November, 1895 (14 Misc. Rep. 398). Plaintiff, after looking both ways, attempted to cross track. When upon the further track, about 22 feet from where she left the sidewalk, she was struck by a trolley car going about 15 miles an hour, and which could not be stopped under 70 feet from the place of the accident. Held, that the questions of negligence and contributory negligence were proper for the jury.

Walls v. Rochester Ry. Co., Supreme Court, General Term, Fifth Department, December, 1895 (92 Hun, 581). The serious question was as to the contributory negligence of plaintiff's intestate who was killed by collision with a trolley car. There was evidence that she looked and saw the car before attempting to cross and she probably miscalculated the distance. It was held, however, that she might have been excusable for such miscalculation by reason of the facts that the car was running faster than usual, faster than allowed by municipal ordinance, and that the motorman did not, as usual, slacken speed when approaching the crossing; and therefore, that the question of her negligence was for the jury.

Dobert v. Troy City Ry. Co., Supreme Court, General Term, Third Department, December, 1895 (91 Hun, 28). Plaintiff, a passenger on a south bound trolley car, having alighted at a crossing, passed around the end of the car, and was struck by a north bound car on the other track. He was looking toward the approaching car. There was only one foot distance between the cars. It did not appear that the north bound car was slowed, or that any warning of its approach was given. The rules of the company required that when a car was standing at a crossing a car coming in the opposite direction should be slowed. Held, that the ques

Hall v. Railway Co.

tions of negligence and contributory negligence should have been sub mitted to the jury.

In Reger v. Rochester Ry. Co., Supreme Court, Appellate Division, Fourth Department, February, 1896 (2 App. Div. 5). The most important question was the pecuniary value of the life of a child to its next of kin. In Milliman v. Rochester Ry. Co., Supreme Court, Appellate Division, Fourth Department, March, 1896 (3 App. Div. 109). The only question was as to the effect of the failure to examine a friendly witness as to a point concerning which he must have had knowledge.

Kitchell v. Brooklyn Heights R. Co., Supreme Court, Appellate Division, Second Department, June, 1896 (6 App. Div. 99). A child seven years old was a passenger with her father and mother on a west bound trolley car. When alighting the father and child left the car first. Hearing an outcry from his wife, who was then alighting, he left the child about a foot from the east bound track and went back to help his wife. There was then no car in sight upon the east bound track within a distance of 150 feet. While he was gone the child went upon the east bound track and was injured by a car running 12 to 15 miles an hour, no bell being rung or gong sounded. Held, that the questions of negligence of the motorman and whether or not the child was sui juris were for the jury. Held, that the father was not, as matter of law, guilty of contributory negligence which was imputable to the child.

Strauss v. Newburgh Elec. Ry. Co., Supreme Court, Appellate Division, Second Department, June, 1896 (6 App. Div. 264). While plaintiff's intestate was riding with one Pfeiffer, upon his invitation, along a street in which was the track of an electric railway, the horse became frightened at an approaching car and backed the wagon upon the track. When the car was from 50 to 70 feet away, the driver and others shouted to the motorman to stop, but the warning proved unavailing. The motorman testified that he saw the horse when about 150 feet away andt hat it was then uneasy; that he was running four miles an hour. It was proven that a car running at that rate could be stopped within six to ten feet. Held, that the question of negligence should have been submitted to the jury. Held, that the person injured was not chargeable with any contributory negligence of the driver, she being his guest and having no control over the management of the vehicle.

Delaney v. Yonkers R. Co., Supreme Court, Appellate Division, Second Department, January, 1897 (13 App. Div. 114). Plaintiff, while driving upon the track, along a section of road which was impassable except upon the track, saw a trolley car rapidly approaching when it was 600 to 800 feet away. When the car was 25 feet away he stood up and shouted to the motorman. Held, that he was improperly nonsuited on the ground of contributory negligence; that he had the right to assume that the car would stop before it reached him.

Kilbane v. Westchester Elec. R. Co., Supreme Court, Jan., 1897 (19 Misc. Rep. 184). Plaintiff's driver looked for cars before going upon the track,

Hall v. Railway Co.

but the car came so fast it struck his wagon before he got across. Held, that a finding for the plaintiff was supported by the evidence.

Geipel v. The Steinway Railway Company of Long Island City, Supreme Court, Appellate Division, Second Department, Feb., 1897 (14 App. Div. 551). When plaintiff was 75 to 100 feet from a trolley car coming towards her, her horse became frightened and backed the wagon on to the track. The car was going ten miles an hour and could have been stopped in fifteen feet. The motorman was looking another way, and did not notice plaintiff's signals and shouts to him to stop the car. Judgment on verdict for plaintiff sustained.

PENNSYLVANIA.- Funk v. Electric Traction Company of Philadelphia, Supreme Court, May 25, 1896 (34 Atl. Rep. 861). Action for injury to a boy who, while running diagonally across an electric railway track at a street crossing, ran into the side of a car and was struck by a corner of it. Held, that the motorman was not obliged to anticipate the boy's sudden action in attempting to cross the track immediately in front of the car, and his failure to do so was not negligence.

Conner v. Electric Traction Company of Philadelphia, Supreme Court, Feb. 17, 1896 (173 Pa. 602); Rauscher v. Philadelphia Traction Company, Supreme Court, July 15, 1896 (35 Atl. Rep. 138); Leckner v. Citizens' Traction Co., Supreme Court, Jan. 4, 1897 (36 Atl. Rep. 228). In all the above cases the questions of negligence and contributory negligence were held to have been properly submitted to the jury.

TEXAS.-San Antonio St. Ry. Co. v. Renken, Court of Civil Appeals, January 6, 1897 (38 S. W. Rep. 829.) Held, that a street railway company has no exclusive right to the use of that part of the street in which its track is laid. Also, that it is bound not only to care to avoid injuring a person seen on the track, but also to vigilance in discovering persons on the track.

WISCONSIN.-Johnson v. Superior Rapid Transit Ry. Co., Supreme Court, October 22, 1895 (91 Wis. 233). Held, erroneous to charge the jury that even if the plaintiff was chargeable with lack of ordinary care, still she should recover if the motorman saw her approaching the track unconconscious of the approach of the car, and did not exercise ordinary care for her safety. Also, erroneous to charge that plaintiff had the right to rely on the exercise of care by the driver of the vehicle in which she was riding: "that both did not have to look."

Bishop v. Belle City St. Ry. Co., Supreme Court, January 7, 1896 (65 N. W. Rep. 738). A horse became frightened at a trolley car, and threw plaintiff's intestate from the buggy and beneath the car. Held, that the mere fact that the horse was frightened at the car gave no cause of action against the company. Also, that the motorman was not negligent in merely slowing, instead of stopping, the car when he saw the horse was frightened.

Lockwood v. Belle City St. Ry. Co., Supreme Court, Jan. 7, 1896 (65 N. W. Rep. 866). Judgment for defendant affirmed because of contributory negligence.

Hall v. Railway Co.

Eastwood v. La Crosse City Ry. Co., Supreme Court, Oct. 13, 1896 (63 N. W. Rep. 651). Horses were frightened by the noise of a trolley car. The following is the opinion:

The only negligence claimed by the plaintiff is that the motorman did not put on the brakes and slacken the speed of his car soon enough. Unless it is the duty of the motorman to slacken his speed and stop his car at the moment a horse upon the street within the range of his vision begins to show signs of uneasiness, this claim of negligence cannot be sustained. Such is not the motorman's duty. The street railway service is for the benefit of the entire public, and it cannot fulfil its legitimate purpose unless it is operated with some degree of celerity. To demand that a car must be slowed up or stopped every time a horse or team betrays signs of uneasiness would render it impossible for the company to perform its duty of reasonably rapid transportation of passengers. Neither the common law nor the ordinance introduced imposes such a duty. Giving the plaintiff's testimony its full effect, the facts are simply these: The motorman saw, or might have seen, at a distance of about 175 feet in advance, a gentle team, driven by a full-grown man, which was beginning to prance or "act up." It was not on the track, but upon a well traveled road at the side of the street car track, nearly 16 feet in width, and was in perfect safety. There is absolutely not a particle of evidence that the team seemed to be beyond control. The motorman waited until he was crossing Division street, which would be somewhere from 40 to 100 feet distant from the place of the accident, and then put on the brakes and threw off the current. Just as he was passing the team, it backed suddenly around and threw the corner of the sleigh against the car. These facts do not, in our judgment, justify any inference of negligence on the part of the motorman. As we have before said, if such an inference can be drawn from them, it must be because a motorman is required to put on his brakes whenever he sees a horse in any part of the street show signs of apprehension. Such is not the law. If it were, street railways could not perform their duties to the public. Bishop v. Railroad Co., ante. Judgment affirmed.

Slensby v. Milwaukee St. Ry. Co., Supreme Court, Feb. 2, 1897 (70 N. W. Rep. 67). Action for damages for alleged negligent injury to a child by a trolley car. Held, that the jury were not bound to believe the motorman's testimony that he did not see the child in time to avoid the accident, and that the evidence was sufficient to warrant finding him negligent.

FEDERAL COURTS.-McLeod v. Graven, U. S. Circuit Court of Appeals, Sixth Circuit, April 14, 1896 (73 Fed. Rep. 627). Plaintiff's intestate, a passenger on an electric railway, alighted at his station, upon the side opposite the platform intended for the use of passengers, and in attempting to cross the parallel track was struck by a car and killed. Held, chargeable with contributory negligence which barred recovery.

McDonald v. Toledo Consolidated St. Ry. Co., U. S. Circuit Court of Appeals, Sixth Circuit, April 14, 1896 (74 Fed. Rep. 104). It is not negligence per se to start an electric street car in the ordinary way, while a team of horses, manifesting no symptoms of fright, are driven past it.