211 F. 885 | 3rd Cir. | 1914
Anna Givens, the defendant in error (hereinafter called the plaintiff), brought suit in the court below against the Pittsburgh Railways Company, plaintiff in error (hereinafter called the defendant), to recover damages resulting from injuries caused by the collision of an automobile with a street car of the defendant company in which she was riding,- the collision having occurred, as was alleged, by reason of the negligence of the said defendant company. From the judgment on a verdict in plaintiff’s favor, the defendant has sued out this writ of error.
It appears from the record before us, that the jurisdiction of the case rested upon the diverse citizenship of the parties.
On the night of December 3, 1911, while the plaintiff was a passenger on a street car operated by the defendant, the said car collided with an automobile at the intersection of two streets, viz., Murray Ave
There is much conflict of testimony as to the speed at which the car was running at the time it crossed Darlington Road. Witnesses for the plaintiff wno were in the automobile testified that the trolley car was running from 25 to 28 miles an hour, one of the witnesses saying that he believed it was running at 40 miles an hour. The plaintiff testifies that before the car reached Darlington Road, the high speed attracted her attention and caused her to put down a book which she was reading, and that immediately afterward she felt the crash of the collision. Testimony on behalf of the defendant was that they were running much more slowly, and that the car was within control. The passengers in the automobile testified that they were looking out for the car as they approached the crossing, and had slowed down to 6 or 7 miles an hour, within 60 feet of the tracks.
In its assignments of error, the defendant makes three objections to the charge of the court below.
“First. The court erred in charging the jury as follows: ‘A street car company in carrying a passenger owes to that passenger the very highest degree of care. The contract is for safe carriage, and therefore the company undertaking to carry must exercise a high degree of care in the operation of the car which is carrying the passenger.’
“Second. The court erred in charging the jury as follows: ‘Of course there may be a rivalry between the motorman and the driver of the automobile, each expecting the other to get out of the way, but that does not excuse the negligence. It rather aggravates it.’
. “Third. The court erred in charging the jury as follows, in affirming plaintiff’s fourth point: ‘Fourth. Even though the chauffeur of this automobile was negligent, if you find that the motorman was guilty of any negligence, contributing to the collision, then your verdict should be for the plaintiff.’ ”
It is, of course, obvious that the duty of the carrier may be otherwise described, and though it is somewhat vague and unsatisfactory to speak of degrees of care, it is not extravagant or unphilo-sophical to-speak of the care which a carrier is bound to exercise for the safety of a passenger as the very highest degree of care. This phrase, of course, means a degree of care that is consistent with the performance of an operation which, at its best, is attended with hazard. But to so-characterize the care required of a carrier, does not import that- he- is an insurer of the safety of a passenger, as a carrier of goods is an- insurer of their safe carriage. In fact, the phrase imports a liability far short of insurance. Many things may happen in the course of the performance of a carriage service which, with the highest degree of care on its part, the carrier can neither foresee nor prevent.
Taking the charge as a whole, however, it is impossible to find that the case was not properly submitted to the jury by the learned judge of the court below, and we quote the context of the part of the charge excepted to, in order to- support this statement:
“The burden of proving negligence of the defendant, the injuries to the plaintiff and the resulting damages, is upon the plaintiff, and this the plaintiff is bound to establish by the weight of the evidence.
“In order that you may understand this case, it is necessary to give you some rules that ought, to govern you in the application of the evidence.
“Now I have said that the burden is on the plaintiff to establish by the weight of the evidence the negligence of the defendant.
“A street car company in.carrying a passenger owes to that passenger the very highest degree of care. The contract is for safe carriage, and therefore the 'company undertaking to carry must exercise a high degree of care in the operation of the car which is carrying the passenger. It is proper for me to state to you that this is not a controversy between the Street Car Company' and the owner of the automobile. The degree of care in a case of that kind would be entirely different from what it is in this case. In this case the company owes a high degree of care; and that is, that in approaching- a cross street, the car must be coming in a way that it is under control so that it may be stopped—a lookout must be kept for vehicles or persons coming across—not only for the protection of the vehicle or the person, but in order*889 that no accident may happen to the -car in which the passenger is riding. The lookout must be kept by the motorman in order that the passenger may be safely carried. He must be on the alert. It is right to presume that vehicles, automobiles, etc., will cross, and therefore in approaching a crossing it is the duty of the motorman to keep a lookout—a careful lookout, to see if anything is coming. It is his duty to ring the gong; it is his duty to have his car so under control that he may stop it and avoid a collision. Now that is the measure of duty which the company owes to its passengers. And you must consider the evidence in the light of that rule.”
The judgment of the court below is therefore affirmed.