Capital Traction Co. v. Divver, 33 App. D.C. 332

Capital Traction Co. v. Divver

33 App. D.C. 332 | D.C. Cir. | 1909

Mr. Justice Robb

delivered the opinion of the Court.

It may be conceded that there is a reciprocal duty resting upon a street railroad and the public in the use of the streets, and that neither may, with impunity, ignore the rights of the other. We shall assume that the appellee, on the occasion of this accident, was guilty of contributory negligence in driving upon the defendant’s track in the manner he did. The point where he saw the motorman slacken the speed of the car was not a stopping place, and the appellee had no right to assume that the car would stop there; but it by no means follows, in our view of the evidence, that reasonable minds would concur in the conclusion that the accident was not the direct result of the negligence of the motorman. Since Davies v. Mann, 10 Mees. & *336W„ 546, the «courts of England and of this country have adopted the rule that the-plaintiff may recover for an injury caused by the defendant’s negligence, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if the defendant’s negligence, after the defendant became aware of the plaintiff’s danger, was directly responsible for the injury. In such a situation, however, ordinary care is all that is required of the defendant. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 35 L. ed. 270, 11 Sup. Ct. Rep. 653; Grand Trunk R. Co. v. Ives, 144 U. S. 408, 36 L. ed. 485, 12 Sup. Ct. Rep. 679; Hawley v. Columbia R. Co. 25 App. D. C. 1; 29 Cyc. Law & Proc. p. 530, and cases there cited.

The real question, therefore, which confronted the trial court, was whether defendant’s motorman in the peculiar circumstances of this case exercised ordinary care to prevent the accident after becoming aware of the plaintiff’s peril. It would be a waste of time to multiply authorities to the effect that the terms “ordinary care” and “reasonable prudence” have a relative significance, depending upon the special circumstances of a given case, and that consequently what may be deemed ordinary care in one case may, under the different conditions presented in another, be gross negligence. Grand Trunk R. Co. v. Ives, supra; Mobile & O. R. Co. v. Wilson, 22 C. C. A. 101, 46 U. S. App. 214, 76 Fed. 127, 6 Am. & Eng. R. Cas. N. S. 97. As we have remarked in a previous case, the determination of such questions is almost invariably the province of the jury. Barstow v. Capital Traction Co. 29 App. D. C. 362. We think this case not an exception to the rule. All the witnesses agreed that the company’s tracks on Fourteenth street on the morning of the accident and just prior thereto were very slippery. The defendant’s own witnesses testified that the motorman had had considerable trouble in stopping his car as he came down Fourteenth street and before he reached the circle. It is undisputed that, when the motorman first saw the plaintiff on the track, the car was from 50 to 75 feet distant, and yet the car was not stopped in time to prevent the acccident. The appellant contends that the motorman was under no obligation to *337reverse the current, and that it was impracticable or impossible to sand the track, owing to the curve. As to the latter contention, the evidence is undisputed that, for a space of about 68 feet north from the point of the accident, the track is straight. As to the former contention, the condition of the track must be taken into consideration. The evidence of plaintiff’s expert motormen to the effect that, under such conditions, “it might be almost impossible to stop the car with the brake in any reasonable distance,” was not contradicted, and yet the track was not sanded and neither was the current reversed. These expert witnesses testified in effect that, by the reversal of the current and the use of sand, the car could have been stopped more readily. The only answer to this testimony is the contention, based upon the admission of one of these experts, that, if the reverse current "was improperly put on” it was likely to blow out the fuse and leave the car without current. The obvious answer to this contention is that it is the company’s duty to man its cars with motormen who will properly apply this emergency device,- and thereby protect the public from peril. No fault was found with the instructions of the learned trial court to the jury, and we must, therefore, assume that the jury found that the defendant’s motorman was negligent, and that his negligence was the proximate cause of the injury. In other words, that, owing to the condition of the track at the time of the accident, the use of the brake alone was futile, and did not constitute ordinary care, and that the motorman should have known this. To say that the motorman in the circumstances exercised due care would, we think, invade the province of the jury.

The judgment is affirmed, with costs. Affirmed.