24 Haw. 87 | Haw. | 1917
This case is before the court upon a writ of error to review a judgment entered in favor of the defendant in the circuit court.
The action was one for damages for an injury alleged to have been caused by the negligent operation of a street car belonging to the defendant corporation which caused a collision betAveen the car and an automobile belonging to and driven by the plaintiff. Paragraph VII of the plaintiff’s complaint alleged,
“That the said defendant, through its agents and employees, so negligently operated said street car No. 9, by propelling the same at an unlawful rate of speed, to wit at approximately eighteen to twenty miles an hour, Avithout sounding any bell or gong as aforesaid, and without sounding any alarm or giving any warning that the plaintiff could or did hear, and without yielding to plaintiff the right-of-way er said Merchant Street, as required by laAv, that said street car No. 9 was wrongfully, negligently and in utter disregard of the safety and rights of the plaintiff, and being beyond the proper control of said motorman, and without fault upon the part of the plaintiff, driven forcibly against and collided forcibly with plaintiff’s said automobile and, through the force of the impact of the collision of said street car Avith said automobile; the plaintiff’s said .automobile was entirely Avrecked and destroyed beyond the possibility of any repair Avhatsoever, and the plaintiff Avas thereby violently thrown and hurled against the driving-wheel of said automobile, and was thereby badly bruised, wounded and injured, all o,f which Avas in contravention of plaintiff’s private rights under the law.”
And paragraph VIII of the.complaint alleged, “That at the time of the said collision and injuries the plaintiff acting under the authority and by the directions and instructions of said police authorities, as aforesaid, was operating his said automobile in a careful and prudent manner and said collision and resultant injuries Avere not*89 caused by any negligence whatsoever upon the part of the plaintiff, and the same could have been avoided by the use of ordinary diligence and prudence upon the part of the defendant and its agents and employees then and there running and operating said street car, and would have been avoided, had said employees of said defendant been operating said street car at the lawful rate of: eight miles per hour.”
The case went to trial in the court below before a jury, and at the close of the case -for the plaintiff the defendant moved for a nonsuit upon the grounds that there was no evidence of negligence on the part of the defendant, that evidence which was undisputed and susceptible of but one reasonable inference showed that contributory negligence of the plaintiff was the proximate cause of the injury, and that there was a fatal variance between the allegations of the complaint and the evidence adduced in several particulars. The trial court granted the motion upon the second ground.
The evidence showed, without conflict except as to unimportant circumstances, that at about half-past ten o’clock on the night of March 6, 1917, a car of the defendant company bound down Fort street, in Honolulu, proceeded to cross Merchant street at a rate of speed between 18 and 20 miles per hour; that the motorman operating the car knew or might with reasonable diligence have known that an ambulance or automobile of some kind Avas also approaching the corner; that no gong was sounded; nor Avas any attempt made to stop or slow doAvn at the intersection; that the plaintiff, who is a public chauffeur, and had three passengers in his machine at the time, was requested by the deputy sheriff of Honolulu to take an injured man from the vicinity of Victoria street on King street to the emergency hospital; that he proceeded along King and Merchant streets on his way to the hospital, his automobile going at the rate of about
Questions of negligence, contributory negligence and proximate cause are usually for the jury to determine, but where the facts are undisputed and but one reasonable inference can be drawn from them it is the duty of the court to pass on them as questions of law. 29 Cyc. 630; Desky v. Lack, 11 Haw. 395; Fuller v. Honolulu R. T. & L. Co., 16 Haw. 1, 11; Dong Chong v. Honolulu R. T. & L. Co., 16 Haw. 272. The duty to observe ordinary care requires that the driver of an automobile must anticipate the possibility of meeting pedestrians or other vehicles at street crossings and have his machine under such control as may be necessary to avoid collision. Brommer v. Pennsylvania R. Co., 179 Fed. 577; Gregory v. Slaughter, 8 L. R. A. N. S. (Ky.) 1228; Weidner v. Otter, 188 S. W. (Ky.) 335; Rupp v. Keebler, 175 Ill. App. 619; Geiselman v. Schmidt, 106 Md. 580, 585; Lauson v. Fond du Lac, 141 Wis. 57, 60. The mere sounding of a horn is not a sufficient precaution if the circumstances demand that speed be slackened or the machine be stopped. Thies v. Thomas, 77 N. Y. S. 276, 279. The evidence clearly showed that the plaintiff approached the street intersection at an excessive rate of speed, and without attempting to slow down until the street car came into view, so that it was impossible for him to either stop or turn his car so as to avert the collision. That was negligence as matter of
Counsel for the plaintiff further invokes the well established rule that contributory negligence of the plaintiff does not preclude the recovery of damages where the injury was caused by the wilful act of the defendant. But a wilful act is not a negligent act, and the gravamen of the plaintiff’s complaint in this case was negligence — -not wilfulness. The case went to trial on the theory of negligence on the part of the motorman, and we find no evidence in the record to support a claim of wilfulness on his part.
We find no ground for a reversal of the judgment in the assignments of error relating to rulings upon evidence. The judgment is affirmed.