31 Haw. 53 | Haw. | 1929
The plaintiff's automobile was injured by a collision with the defendant's street car on Alakea street in the city of Honolulu. The plaintiff sued for damages. The jury returned a verdict in favor of the defendant and the plaintiff brings the case here on a bill of exceptions. The only exception relied on is to the giving of the following instruction at the defendant's request: "I instruct you that the violation of either of the two ordinances just read constitutes negligence." The two ordinances referred to in the instruction, and which had been received in evidence, are as follows: "Every person riding, driving, operating, propelling or in charge of any vehicle or street car upon any of the highways shall ride, drive, operate or propel such vehicle or street car upon such highways in a careful manner and with due regard for the safety and convenience of pedestrians and all other vehicles or street cars upon such highways. No person or persons shall impede the right of travel of any vehicle or street car." (Rev. Ord. 1923, Sec. 412.) "The person in charge of any vehicle in or upon any highway, before turning, stopping or changing the course of such vehicle, and when starting the same, shall see first that there is sufficient space for such movement to be made in safety, and if the movement or operation of other vehicles may reasonably be affected by such turning, stopping or changing of course, shall give plainly visible signal to the persons operating, driving or in charge of such vehicles of his intention so to turn, stop or change his course, either by the use of his hand and arm, which if used, must be visible from the rear, or by the use of an approved mechanical *55 or electrical device. Any such device shall upon application to the sheriff be tested and, if approved, be certified by him as adequate to give the signal herein required. * * * In pulling out from the curb the intention to turn shall be indicated by the full arm signal as hereinbefore specified for turning and in addition thereto a warning shall be sounded by the use of a horn or other device." (Ib., Sec. 425.)
The evidence introduced on behalf of the plaintiff tended to show that at about four o'clock P.M. on the 15th or 16th of October, 1923, he parked a Ford car owned by him against the curb on the Ewa side of Alakea street, near the entrance to the Mutual Telephone building, and went into the building to pay a bill; that there were several other cars in front of his car and several in the rear of it; that the distance between his car and the one immediately in front of it was five or six feet and that the same distance separated his car from the one immediately in its rear; that after paying his bill he re-entered his car, started the engine and looked back to see if the street was clear; that he saw a street car approaching, which was at that time a distance of 225 feet from him; that before moving his car he extended his arm but did not sound his horn; that he then started his car and turned to the left and when it got onto the defendant's tracks, a distance of about three feet, his engine stalled; that he again looked back and saw that the street car was about 125 feet from him and moving towards him at the rate of twenty or twenty-five miles an hour; that he thereupon signalled for ten or fifteen seconds by waving his hand in a backward motion, but the street car came ahead and crashed into his automobile and seriously damaged it; that as soon as his engine stalled he began using and continued to use all the appliances with which the car was equipped to start it again, but without avail. *56
The evidence introduced on behalf of the defendant tended to show that the motorman in charge of the street car had an unobstructed view of Alakea street, in front of him, from Beretania street to the point of the accident and that as he progressed he noticed several automobiles parked on the Ewa side of Alakea street; that upon entering a switch on Alakea street, about fifty feet makai of Beretania street, he reduced the speed of his car to five miles an hour but after getting on the switch he increased the speed to fifteen miles an hour, which speed he maintained until he reached the Mutual Telephone Company building, a few feet from the point of the accident; that he then reduced the speed to ten miles an hour in order to make a gradual stop at Hotel street, which was the next street makai and only a short distance away; that when the street car was within fifteen to twenty feet from the point of the accident and running at the rate of ten miles an hour the plaintiff, without giving any warning by extending his arm or otherwise, suddenly turned his Ford car out from the curb toward the street car track and so near to the track that it was struck on the left front fender by the street car; that as soon as the motorman saw that the plaintiff had turned out from the curb he applied his emergency brake but was unable to stop in time to avoid the collision; that the engine of the Ford did not stall on the track prior to the collision and the plaintiff made no motion by waving his hand.
Out of these conflicting tendencies of the evidence (which are the only phases of the evidence we deem it necessary to consider) certain issues arose, upon the settlement of which the rights of the parties are determinable. It is conceded that all these issues save one were issues of fact and that it was solely within the province of the jury, under the instructions of the court, to decide them. No complaint is made that the issues that were *57 submitted to the jury were improperly submitted. The issue about which the parties are in disagreement is whether, as a matter of law, the plaintiff was guilty of negligence if the jury believed from the evidence that he violated either of the two ordinances of the City and County of Honolulu above quoted. It was contended by the defendant that such conduct on the part of the plaintiff would, ipso facto, be negligence. It was contended by the plaintiff, on the other hand, that it should be left to the jury to decide whether under all the circumstances of the case a violation of either or both of the two ordinances constituted negligence on his part. The court below held with the defendant and instructed the jury accordingly. The plaintiff claims that this was error.
The question thus presented is not free from embarrassment. There is much conflict among judicial writers on the subject and in the absence of direct precedent in this court we feel at liberty to adopt the rule that seems to us most nearly in accord with reason and justice. Circumstances are conceivable under which we would not hesitate to say that a violation of the rules adopted by legislative authority for the regulation of vehicular traffic on the public streets and highways would be negligence as a matter of law. Taking certain aspects of the evidence in the instant case, in their relation to the first ordinance above quoted, for example, if the plaintiff turned his automobile away from the curb and within the path of the approaching street car when it was only fifteen or twenty feet from him and moving at the rate of fifteen or even ten miles an hour, without giving the signals required by one of the ordinances, it was, unquestionably, negligence as a matter of law. Every reasonable person would know that such conduct was imprudent and dangerous. There could be no rational difference of opinion about it. On the other hand, if the plaintiff, before leaving the *58 curb, looked back and saw that the street car was 225 feet in his rear, moving at any one of the various rates of speed indicated by the evidence, his failure to give the signals might or might not have fallen under the condemnation of reasonable persons. A perfectly reasonable man might say that under these circumstances an experienced driver operating a light and easily handled car took no substantial risk in turning away from the curb and onto the street car track and therefore it was not imprudent for him to do so without extending his arm or sounding his horn. Another equally reasonable man might take the contrary view. The instruction complained of required the jury to find that a failure by the plaintiff to give the signals constituted negligence under either of the foregoing circumstances. We have no means of knowing which of these circumstances the jury found to be established by the evidence. If the latter, and the question of whether the plaintiff's failure to give the signals in fact constituted negligence had been left to the judgment of the jury, under proper instructions, no one can say what the verdict might have been. Under our view of the law the plaintiff was entitled to have the question submitted to the jury.
In Grand Trunk Railway Co. v. Ives,
We know of no decision of the Supreme Court of the United States subsequent to the Ives case disapproving or even modifying the observations that were made in that case. On the contrary their soundness has been recognized in many cases both Federal and State. In Sluder v. St. Louis Transit Co., 189 Mo. 107, 88 S.W. 648, 5 L.R.A. (N.S.) 186, which is copiously annotated in L.R.A., the annotator says (p. 226): "In several states the violation of a municipal railroad speed ordinance is considered to be evidence only, more or less potent or persuasive, of negligence of the offending railroad company." The first case cited in support of the note is the Ives case. This is followed by a large number of citations from various state courts. In Stevens v. Luther,
In Chicago, B. Q.R. Co. v. Metcalf,
That the failure to observe a well recognized common-law measure of prudence is not in all cases negligence as a matter of law, but may be negligence as a matter of fact, according to the judgment of the jury, is recognized by this court in Andrade v.O.R. L. Co.,
In most of the foregoing cases the conduct of the defendant only was under consideration but of course the plaintiff's conduct is but the counterpart of the question and must be gauged by the same rules. In other words, whether the plaintiff's violation of a statute or ordinance is negligence as a matter of law must be determined upon *64 the same principles as those which are applicable to a similar dereliction by the defendant.
So far as the instruction under review relates to the other ordinance we think it should not have been given, if for no other reason, because it was calculated to mislead the jury. The second clause of this ordinance provides that "no person or persons shall impede the right of travel of any vehicle or street car." In view of the plaintiff's testimony that the engine of his Ford car stalled after he got on the defendant's track, the jury might, if it believed this testimony, have felt obliged under the instruction to find that he violated the ordinance by impeding the right of travel of the street car, whether the stalling of the engine was due to his fault or not, and was therefore guilty of negligence. If the stalling of the engine (provided it did in fact stall) was without the plaintiff's procurement the resulting impediment to the street car could not be charged to him and would not therefore constitute a violation of the ordinance. This should have been explained to the jury.
For the foregoing reasons the exception is sustained, the verdict of the jury is set aside and a new trial granted.