Driscoll v. Market Street Cable Railway

97 Cal. 553 | Cal. | 1893

McFarland, J.

On December 10, 1884, Alexander Driscoll was struck and. killed by a car of defendant, at the intersection of McAllister and Larkin streets, in San Francisco; and his widow, as administratrix, brought this action to recover damages for his death. The jury returned a verdict for plaintiff in the sum of $7,775, for which judgment was rendered. The defendant appeals from the judgment, and from an order denying a new trial. The only point urged by appellant is, that the evidence is insufficient to justify the verdict, the positions of appellant being that the evidence does not show that the accident was the result of any negligence of appellant, and does show that it was the result of the negligence of the deceased.

The question presented is certainly one of some difficulty. The rule is well established that this court wall not disturb a verdict wdiere there is a conflict of evidence on material points, and when there is evidence to support the verdict; but such conflict and such evidence must be real and substantial. When a jury catches at a mere semblance or pretense of evidence for the purpose of somewhat equalizing financial conditions by taking money from one party and giving it to the other without legal cause, the trial judge should, without hesitation, set the verdict aside; and in the event of his not doing so, this court will grant a new trial.

Street-railroads are an established feature of modern city life. They are a convenience and a necessity to all classes of people, and are desired by all. But their operation on crowded streets is necessarily attended with considerable danger to pedestrians, — a danger which all people are bound to know, and against which they should protect themselves, by the use of at least reasonable caution. While, therefore, the owners of these railroads are to be held to due care in the management of their lines, they, when exercising such care, are not responsible in damages to a person who, in a careless, or reckless, or absent-minded way, walks suddenly in front of a moving car, and is injured before there is time to stop it. The person in charge of a car, with a clear track before him, has a right to assume that people will not suddenly undertake to cross in front of it; otherwise he could not make any headway, and no street-car line could be successfully operated, either for the profit of the owner or the convenience of the public. And the general rule is, that where the negligence of the injured party is a contributing proximate cause of the accident, he cannot recover damages. But whether or not his negligence did so contribute in any particular case is generally one around which conflicting evidence will be gathered; and in such case a railroad company which was itself guilty of negligence at the time of the accident cannot often, expect to be relieved from an unfavorable verdict.

Section 501 of the Civil Code provides that the speed of a street-car shall not exceed eight miles an hour; and an ordinance of the city and county of San Francisco provides (substantially) that every car shall have attached to it a bell or gong of sufficient size and weight to be distinctly heard, when rung or sounded at a distance of at least one hundred feet, and that the persons in charge of a car must keep the bell ringing, or the gong sounding, from a point twenty-five feet from a street.crossing until the crossing shall have been passed.

In the case at bar, the deceased, at the time the car struck him, was walking northerly along the easterly crossing of McAllister Street where it intersects Larkin. On McAllister Street the appellant has two parallel tracks, on thb northerly of which the cars going west run, and on the southerly the cars going east. The deceased was struck by a car going west, on the northerly track; and, according to the custom of appellant, a car thus going comes to a stand-still at a certain point, called “Stop ” which is thirty-seven feet east of the center of the said crossing. After starting again, it goes to a point called “ Let go,” about five or six feet east of the crossing; and at the point “Let go” the gripman suddenly releases the grip from the cable, and the car runs across Larkin Street from the impetus given by the cable, and without being attached to the latter. This is necessary, because the cable is crossed by another cable running along Larkin Street. The custom above stated was followed by the gripman of the car by which the deceased was killed.

There was some evidence that the car at the time of the accident was running faster than eight miles an hour, — though such evidence was exceedingly slight. It is admitted that the rate of speed at which the cable itself ran was only eight miles; but two of the witnesses testified that after the car was released from the cable at the point “ Let go,” it ran faster than the cable. The position of appellant that it was physically impossible for the car, after it was detached from the cable, to have run faster than the cable is hardly tenable; for there was a slight artificial down grade at that point for a few yards -—one and seven eighths inches from the “Let go” to the center of Larkin Street. But the testimony of the witnesses who swore to the increased speed was so unsatisfactory, and the increased speed itself so improbable, that a verdict founded on such speed alone as constituting negligence on the part of appellant could hardly be sustained.

But it is clear that the employees of appellant in charge of the car failed to ring the bell, as provided by said ordinance, and as due care required. There was a conflict of evidence as to whether or not the bell ivas rung at all until after the deceased was struck. Witnesses differed about it having been rung once just before or at the time the ear started from the point “ Stop,” thirty-seven feet away; but the evidence is uncontradicted (and the fact is admitted) that the bell was not rung after leaving said point until after the deceased had been struck. This was clearly negligence, because it was in violation of a reasonable ordinance, and also because the omission was, in itself, under the circumstances, careless. (Siemers v. Eisen, 54 Cal. 418; Higgins v. Deeney, 78 Cal. 578; Orcutt v. Pacific Coast R'y Co., 85 Cal. 291; Shearman and Redfield on Negligence, sec. 13.)

It is true that failure to ring a bell or to comply with some other statutory requirement will not make a railroad company liable, if such failure is not the proximate cause of the accident, or if it was caused by the negligence of the injured party; and in the case at bar it is contended by appellant that it was the negligence of the deceased, and not the failure to ring the bell, that caused the injury. The contention is, that, upon the evidence, we must hold, as a matter of law, that the negligence of the deceased was the proximate cause of the injury; but, after a thorough examination of the record, we do not think that such contention can be maintained.

There is a conflict of evidence as to the actual conduct of the deceased and the circumstances under which he acted at the time of the accident. He was crossing McAllister Street from the south side, going Eiorth. It is beyond dispute that about that time another car of appellant came down McAllister Street, going east, and crossed said street on the south track, and stopped a few yards east of the crossing; although there is a conflict in the evidence as to the precise point which said car had reached when deceased started across the street. It was, however, clearly at a point where it was, to a greater or less extent (as it was farther east or west), an obstruction to the observation of the deceased. The jury had warrant in the evidence to find that he started as soon as the east-bound ear had passed the crossing; that the time was after daylight; and that the night was “dark and foggy,” although there was a headlight on the car. The two tracks are about four and one half feet apart, and the deceased had nearly crossed the second or north track when the north side of the cár struck him. One or two persons shouted to him to get out of the way> but it does not appear that he heard the warning.

Under these circumstances,—the appellant being in default for not giving the proper warning,— we think that the question whether deceased was guilty of contributory negligence was a proper one for the jury; that deceased cannot be held, as a matter of law, to have heen so guilty; and that there was sufficient evidence to warrant the jury in finding that he was not. Counsel for appellant, in his very thorough and able brief, has cited a number of cases in which it was held that the plaintiff could not recover, because he had not exercised sufficient caution in attempting to cross a railroad track. Those were cases, however, where the accidents occurred on ordinary steam-railroads running through the country at comparatively long intervals of time; and the rule there laid down can hardly be applied in all its strictness to street-railroads in crowded cities, where a car that can be speedily stopped passes a crossing every two or three minutes, and where people necessarily cross the streets frequently and hurriedly. (Shea v. Railroad Co., 44 Cal. 414; Swain v. Fourteenth Street R. R. Co., 93 Cal. 183; 1 Thompson on Negligence, 396, and cases there cited.) Of course, if all people exercised the greatest care and caution in approaching and crossing railroad tracks, such accidents as the one here involved would rarely, if ever, occur; but the law does not expect or require such extreme care. Ordinary care is all that is required; and ordinary care is that degree of care which people of ordinarily prudent habits—“people in general’’could be reasonably expected to exercise under the circumstances of a given case. And considering all the evidence and circumstances in the case at bar, and particularly the fact that the deceased had a right to rely upon the usual and required signal of bell-ringing when a car is approaching a crossing, we cannot say that the jury abused its power in holding that the deceased was not guilty of contributory negligence. The judgment of the learned judge of the court below, who heard all the evidence and refused a new trial, is also entitled to great consideration. It is, no doubt, what is sometimes called a “close case”; but, in our opinion, there is no such absence of substantial evidence to support the verdict as would warrant us in setting it aside.

There is nothing in the point that the gripman could not have rung the bell, because his hands were necessarily otherwise engaged. If it was not convenient for him to have performed that duty, the conductor should have done it; and it was no excuse that the conductor was temporarily absent from his post. Neither is there anything in the point that the ordinance requires, in terms, that the persons immediately in charge of the car, and not the company, shall give the warning.

The judgment and order appealed from are affirmed,

Fitzgerald, J., and De Haven, J., concurred.

Hearing in Bank denied.