64 Ark. 420 | Ark. | 1897
This appeal is from a judgment for damages obtained by appellee against appellant for personal injuries received through the alleged negligence of appellant in running upon appellee with one of its electric cars. There were two defenses, namely, the contributory negligence of appellee, and settlement of his demand.
The evidence justified instructions on negligence and contributory negligence. The court gave the following, at the request of appellee: “Though you may find from the evidence that plaintiff was to some extent negligent, yet if the defendant did discover, or, by reasonable diligence, might have discovered the defendant in time, by using ordinary care, to have prevented the injury and failed to do so, it would be responsible to him in damages.” The negligence of plaintiff here referred to must have meant his contributory negligence; else it was not germane to any question under consideration. The doctrine of contributory negligence, as thus stated, conflicts with the rule announced by us in recent cases; for the instruction would make the company liable for negligence in failing to keep the proper lookout, resulting in injury to appellee, notwithstanding negligence on his part directly contributing to such result. This is not the law. Johnson v. Stewart, 62 Ark. 164; St. Louis Southwestern R. Co. v. Dingman, 62 id. 245; St. Louis, I. M. & S. R. Co. v. Leathers, 62 id. 235; St. Louis, I. M. & S. R. Co. v. Taylor, ante, p. 364.
The charge of the court, with this exception, upon negligence and contributory negligence was free from error, and the objectionable clause in the above was doubtless through inadvertence retained by the learned trial judge, as it was not included in other parts of the charge upon the same subject.
2. In the first part of the. fourth instruction given at appellee’s request, the court tells the jury that “the right of persons to pass along, over, and across the streets where defendant company’s tracks are laid are equal with those of said defendant.” The tracks of street railways, including crossings as well as every other portion of their tracks traversing the public streets of cities and towns, are used by the cars of such companies in common with the traveling public. No one is a trespasser for going upon their tracks. But, while this is true, the traveling public does not have equal rights with the railway company to the use of the tracks for passing along or crossing over same. “Equal” is not the word. The street cars, ex necessitate, must have, and do have, a right of way on their tracks, where they alone 'can travel, and this right is superior to that of ordinary vehicles and travelers. This paramount or better right to the use of their tracks does not give them the right to exclude travelers, and these may move along or across these tracks at any time and place where such traveling does not interfere with the progress of the cars. Where there is conflict, the individual traveler must yield the right of way. This requirement of the law is to subserve the public convenience and accommodation. As was said by the Supreme Court of Pennsylvania, it would be unreasonable that a car-load of passengers should be delayed by the unnecessary obstruction of the street railway track by evéry passing vehicle, horseman.or footman. Ehrisman v. East Harrisburg City Pass. Ry. Co., 24 Atl. Rep. 596; Booth, Street Ry. Law, § 303, and authorities cited.
It is true, as announced in the first paragraph of the third instruction given for appellee, that the traveling public and the street railway company “had equal'rights in using the public street,” and perhaps this is all the court meant to say in that part of the instruction quoted. But it is not correct to say that the right of the general public to use that particular portion of the public street covered by the street railway track is equal with that of the street railway company. Lest the language of the court, supra, in the fourth instruction might be so construed, we have announced the law to prevent any misapprehension upon the subject on another trial.
3. The ruling of-the court upon the instructions as to the alleged settlement, in the absence of the writing purporting to be the evidence of that settlement, must be held to be correct. It appears from instruction numbered eight that the court treated this writing as the contract of settlement between the parties. This writing was in evidence below, but it has not been brought into the bill of exceptions here, and it will be presumed that it will show every fact necessary to the correctness of the court’s ruling upon this subject.
For the error indicated, reverse the judgment, and remand the cause for new trial.