117 Ark. 337 | Ark. | 1915
This is :an action to recover damages from tbe street oar company for personal injuries inflicted in tbe operation of a oar. Tbe plaintiff, S. H. Panikey, was a mail carrier on December 24, 1909, when be received tbe injuries specified in tbe complaint, and claimed that tbe servants of tbe defendant, in operating a car, caused it to collide with tbe mail cart in which plaintiff was riding, 'and to overturn the cart .and throw him out and injure him. The defendant denied the allegations of negligence and the trial before the jury resulted in a verdict in favor of the defendant.
The plaintiff’s narrative of the facts is as follows: He was driving west on Prospect Avenue, in the city of Little Bock, late in the afternoon—.about 5 or 5:30—on December 24, 1909, .and was standing on the step of the mail cart, where the mail carrier is accustomed to ride, when the street ear struck the cart and overturned it. There is a double track of the street railway ,a,t that place. On the north side the space between the north rail and the curb is about three and one-half feet, and the space between the south rail .and the south curl) is about thirteen 'and three-fourths feet, thus giving space for other vehicles to travel only on the south side of the street oar rails. The ear which inflicted the injury was coming from the west, and there was a down-grade around a .curve. The evidence shows that from the point where plaintiff was struck, an approaching oar could be seen something less than a 'block. Just around the curve, Fairfax Avenue runs into Prospect Avenue from the south side, but does not cross it. The plaintiff testified that he stopped his cart ait a mail box on the south side of the track to deliver a package .at a residence across the avenue, .and that after returning to ibis cart, he found that he had a registered package for a lady who lived a short distance farther west on the north side of the track. He says that he got in his cart and started diagonally across the street to reach the residence of this lady, Mrs. Witherspoon, and when he had crossed the south rail of the track his .registered mail pouch -slipped from the top of the pile, that his -attention was diverted in trying to catch hold of the -pouch and restore it to its place, and that in this way he slackened his hold on the lines -and lost control, for -the moment, over the movements of his hors-e. His mail was piled very high, so <as to obstruct his view to some extent, and when -he -got the -pouch replaced, he saw the -street car coming rapidly -about three-fourths of a block -away, and he whipped up -his horse and drew him over to the left in -an attempt to get the horse and cart off of the track, but that before he could succeed in doing so, the car struck the cart -and overturned it. He states that he whipped up his horse and drew him over to the left, and made outcries -to attract the attention of the motorman. His testimony is that the -car was running at a speed of about twenty miles -an hour, and in this he is corroborated by -other witnesses. His testimony, and that of other witnesses, tends to establish the fact that the gong was not sounded as the car approached Fairfax Avenue, -and the evidence is sufficient to justify the conclusion that if the gong had been sounded, the plaintiff might have noted the approach of the car in time to have started about getting his horse and cart off of the track at a-n earlier moment.
On the other hand, the testimony adduced by the defendant tends to show that plaintiff got his horse -and cart off of the track before the collision occurred, and then backed into the car, and that he stepped off of the cart before the collision. In other words, the testimony of the defendant completely exonerates its employees from the charge of negligence, and supports the verdict in favor of the -defendant.
It is contended in the first place that the court erred in excluding from the consideration of the jury two ordinances of the city of Little Rock, one relating to the speed of vehicles propelled along the streets, .-and the other imposing a duty on the street car company of sounding the gong -at street -crossings. The ordinances excluded by the court read as follows:
‘ ‘ That no .automobile, locomobile or horseless vehicle propelled by the use of electricity, gasoline or steam, by whatever name such vehicle may be known, whether used for purposes of pleasure or business, shall be moved or propelled along, over or upon any public street, .avenue, boulevard or other public place in that part of the city bounded on the north by the Arkansas River, on the east by Commerce Street, on the south by Tenth Street, and on the west by the west side of Broadway, and also the city park and .free bridge across the Arkansas River, at a rate of speed exceeding eight miles per .hour and elsewhere in the city exceeding fifteen miles per hour. Any person violating .any of the provisions of this ordinance shall, upon conviction, be subject to a fine of not less than five, nor more than twenty-five dollars (section 914 Campbell & Stevenson's Digest of the City Ordinances of Little Rook).”
“Sec. 1859. Same—Bells or Gongs on Gars.—-That every street railway company operating its cars in the streets or other public places of the city of Little Rock •shall place a suitable bell or gong on each of such cars, and cause the same to be rung or sounded on each car approaching or passing another car, or approaching or passing any .street crossing or other regular crossing, such ringing or sounding to be commenced .at a distance of not less than fifty feet from the oar or crossing approached, and continued until such car or crossing has been passed.”
There are numerous assignments of error in regard to rulings of the court in giving .and refusing instructions. Some of the adverse rulings of the court are not pressed in the argument, and we need not notice them. The first objection relates to a modification of plaintiff’s first instruction, which submits the question of contributory negligence, and we think there was no error in that regard. Another instruction, which the court refused, told the jury that the plaintiff was not a trespasser in going on the track, and not necessarily negligent in doing so. We think there was no prejudicial error in refusing that instruction, in view of others which were given by the court, because in none of the instructions could the jury have understood that they were at liberty to regard the plaintiff as a trespasser on the track.
Objection was made to the following instruction, given at the instance of the defendant: ‘ ‘ The street car had, and from the necessities of the case should have, a right-of-way upon that portion of the street upon which alone it could travel, paramount to that of other vehicles. If the motorman in charge of the car saw a person driving upon or near its track at a distance .ahead sufficient to enable him to get out of the way before the car reaches him, and is not aware that he is insensible of the danger or unable to get out of the way, he has a right to rely upon human experience, and presume that the driver will act upon principles of common sense and the motive of self-preservation common to mankind in general, and will get out of the way, and to go on without checking the speed of Ms car until he sees that the driver of the car is not likely to get out of .the way, when it would then become Ms duty to give extra alarm by bell or gong, and if that is not heeded, .and it becomes apparent that he will nót get out of the way, then, as a last resort, to check the speed of his car or stop the car, if possible, in time to avoid the accident.”
This court has announced the 'same rule. In Little Rock Traction & Electric Co. v. Morrison, 69 Ark. 289, it was said: “Every one has a right to go on the streets and on any part of them. In a ¡sens.e, it is -said that street ears have the right-'of-way; but that is because of the weight, speed and momentum of the cars, the great number of persons carried on them, their necessity to run on schedule time, and their strict confinement to the appropriate track, and other like circumstances. Except to accommodate these peculiarities, the street cars have no real right-of-way over all travelers on the streets, and it can not therefore be said there are any trespassers. * * * The street oar company owes a duty to all persons on the streets, perfectly commensurate with the relative situation between it and them. One of those duties is to exercise reasonable care not to injure, for the privileges' of both are such as call forth such care at all times.”
The California Supreme Court said concerning the duty of the operatives of a street oar company: “The standard by which ordinary care is to be measured is not absolute; and in the case of the operation of street oars, it must vary with circumstances attending their operation—the character of oars, the agency of propulsion, the locality in which they are operated, whether in the country or in .a city, whether over much-traveled or unfrequented streets, and the possibility or probability of danger attending their operation.” Henderson v. Los Angeles Traction Co., 150 Cal. 689.
The Supreme Court of Texas had this to say on the same subject: “It may be assumed, as matter of law, that it is the duty of a street railway company to know that the track in advance of its car is clear, and that it will ¡be liable for any injury resulting from the want of this knowledge, unless its liability is defeated by the contributory negligence of the injured person, or unless it appears that the person injured went upon its track at a place so near the approaching car that the driver, by the exercise of care, could not avoid the injury after the person was seen or might have been seen. This involves the proposition that such a railway company is bound to use such diligence as will enable it to know whether the track in front of its oar is clear, and if to this end the exercise of the highest degree of "diligence is necessary, it must be used.” Galveston City Rd. Co. v. Hewitt, 67 Tex. 473, 60 Am. Rep. 32.
Instruction No. 5 was also objected to, and reads as follows: “You are instructed that it is the duty of the person driving a private vehicle to keep to the right of the street on which he is driving, bnt this does not prevent him from crossing, the street at -such times or places as it may be necessary for him -to do. If you find from the evidence that plaintiff was driving his wagon west on the south track of the defendant company, and that -he had ample room to have driven to the right and to have kept clear of the track on which the oar would -approach when coming east, or if you find that he could have driven on the south side -of the street on that portion on which there are no car tracks, yet he failed to do either one, then -the presumption of law is that he was guilty of negligence, and the -burden of proof is upon him to explain his position'on the south track, and to clear himself of the presumption of negligence. ’ ’
The judgment i-s therefore reversed, and the cause remanded for a new trial.