106 F. 48 | U.S. Circuit Court for the District of Washington | 1900
Tbe defendant moves for a new trial in a case in wbicb the plaintiff obtained a verdibt of tbe jury for damages for injuries alleged to have been sustained by reason of tbe defendant’s negligence. Tbe plaintiff was driving a team of horses with a covered wagon, going southerly, on C street, in tbe city of Tacoma, on which street was a single track for electric cars, wbicb ran in the • direction in wbicb tbe plaintiff was going. His horses were unaccustomed to tbe street cars, and be wished to avoid meeting them. He stopped bis team at tbe southwest corner of C and Thirteenth streets, and shortly afterwards proceeded on bis way, intending to cross tbe street-railway track half a block further on, and enter a livery stable on tbe other side of tbe street. Before proceeding he turned and looked up tbe street, of wbicb be bad' an uninterrupted view for about 1,400 feet, to see if an electric car was approaching from behind. His testimony was that no car was in sight, and that be thereupon started bis team in tbe direction in which he was going, and proceeded southward a distance of 400 feet, or a little past the middle of tbe block, when, without again looking back to see if a car was then approaching, be turned abruptly to tbe left, to cross tbe railroad track and drive into a livery stable. While crossing the track be was struck by an electric car of tbe defendant, causing personal injuries to himself, breaking his wagon, and carrying it on ahead of the car a distance of 150 feet. An ordinance of tbe city of Tacoma prohibited the car from going at a higher rate of speed than 12 miles an hour. There was evidence
“There is, to begin, with, no possible analogy between a ease growing out of an injury caused by a street car to a person rightfully upon the public thoroughfare, and a case involving an injury inflicted by a steam-railroad train on a trespasser wrongfully upon the latter company’s right of way. * ⅜ ⅛ He had a right to drive along the streets, and, after he had looked, and had seen no car approaching on Fayette street, he had the further right to cross the tracks, and to assume that he would not be recklessly run down.”
In Robbins v. Railway Co., the supreme judicial court of Massachusetts, by Field, C. J., said:
“The decisions of this court show that a distinction has been taken with respect to the duty to look and listen when crossing the tracks of a steam rail*50 road where a railroad train has the exclusive right of way, and when crossing the tracks of a street-railway company in a public street, where the cars have not an exclusive right of way, but are run in the street in common with other vehicles and with travelers. The fact that the power used by the street-railway company is electricity, instead of that of horses, has not been deemed by the court sufficient to make exactly applicable the rule of law which has been laid down concerning the crossing of the tracks of a steam railroad.”
In Schilling v. Railway Co., the plaintiff, who was driving his wagon on the street in the direction in which the car was going, had taken the precaution to look out for the approaching car upon entering on the tracks. The court said: ,
“It cannot be said, as a matter of law, that he was guilty of contributory - negligence in not looking behind him during the time that it would take to drive a single block, or that it was not negligence on the part of the defendant to run him down.”
In Shea v. Railway Co., the supreme court of Minnesota said:
“The rule that one approaching a railroad crossing upon a highway must look up and down the track before he attempts to cross is not applicable, as a hard and fast rule, to one who attempts to cross a street-car track upon a public street. The failure to do so is not, as a matter of law, and without regard to circumstances, negligence. Notwithstanding plaintiff’s failure'to do so as soon as he might have done, the question of contributory negligence was, under the circumstances, one for the jury.”
In Railway Co. v. Duvall the supreme court of Nebraska held that the violation of any statutory or valid municipal regulation established for the purpose of protecting persons or property from injury is of itself sufficient to prove such a breach of duty as will sustain a private action for negligence'if the other elements of actionable negligence concur. In Bapid-Transit Co. v. Seigrist the supreme court of Tennessee had under consideration a case in which the plaintiff, with a team at a street crossing, when within 10 yards of the street-railroad track, looked and saw a car coming, seemingly 200 or 250 yards away, and, thinking he had plenty of time to cross the track in front of the car, which ivas moving fast, immediately drove on at the rate of 4 miles an hour, and did not look at the car again until his front wheels weye on the track. The court said:
“Though it was his duty to look and listen as he approached the crossing, it was not incumbent on him to stop before going upon the track, when it seemed to him, upon reasonable ground, that he could pass over in safety. The law does not require so great an amount of carefulness of a person in crossing a street railway as in crossing a steam or commercial railway, for the obvious reason that his right is greater and Ms danger less in the former than in the latter case.”
Of similar import is the decision of the supreme court of Missouri in Hicks v. Railway Co.
In Laufer v. Traction Co., the supreme court of Connecticut, in considering a case in which the driver of a wagon, on the wrong side of the street, on the. track of an electric car which was approaching him, who knew that another car was approaching from behind, and that it was so far away that if it went at its ordinary rate of speed he could safely cross to that side of the street, held that he was not negligent in so crossing, and in assuming that the car behind him would not be run at a dangerous rate of speed.