63 W. Va. 522 | W. Va. | 1908
The circuit court of Marshall county set aside a verdict for $15,000.00 in favor of Louisa Riedel, against the Wheeling Traction Company, for damages "resulting from injuries sustained by her on a street crossing in the city of Benwood, by the alleged negligence of the company, in the operation of one of its electric cars, on the ground of contributory negligence, and of this action, on the part of the court, she complains.
The schedule requires the running of the car at a rapid rate of speed. The view of the track was unobstructed for a considerable distance north of the crossing at which the plaintiff was hurt, and the car was approaching from that direction when she attempted to cross the track. It is not denied that she could have seen the approaching car before she reached the crossing, but she testifies that she looked in that direction after having left the sidewalk and before attempting to cross, but did not see it. As she ivas then within a few feet of the track, the car was necessarily so near, that she could have seen it, and would have done so, had she looked for it, with any degree of care. She had walked down the sidewalk for some distance in the direction opposite to that from which the car was approaching; and, having come nearly to the corner, left the sidewalk and went diagonally across the street to the intersection of the railway track with the cross street, known as Sixth Street. The motorman saw her before she stepped on the track and was under the impression that she had not seen the car and was not looking for it. Just as she was passing off of the track, having crossed it, her clothing was caught, and she was thrown on the track ahead of the car, which passed over
The evidence seems entirely sufficient to warrant the conclusion that the jury may have properly found negligence on the part of the defendant. Witnesses testify that the car was running at a high rate of speed and not under control, when it came to the crossing, and circumstances stated by some of them tend to sustain this view. They say it struck the plaintiff with such force as to pitch her ahead of it a distance of about fifteen feet, and ran about sixty feet after striking her, despite the efforts of the motorman to stop it.. Another circumstance relied upon in this connection is the finding, on Sixth Street, at a considerable distance from the crossing, one of her slippers, as if it had been thrown from her foot by the violence with which she is said to have been pitched or thrown forward. One witness says he saw the car crossing the street at what he believes to have been a speed of twenty miles an hour. Another, residing on Mc-Mechen Street, at some distance above the crossing, says she saw it passing her house at a rapid rate. There is evidence to the contrary. A witness for the defendant says he was standing in the door of a house on Sixth Street some distance from McMechen, on which the railway is, and, hearing the sound of the gong and the approach of the car, looked diagonally across both streets, past a house that stood on the corner, and saw both the plaintiff near the track and the car as it came in sight, and that the speed of the car was slackened and the motorman turning his brake in an attempt to stop it, and, at the same time, sounding the gong. According to this witness, the motorman was giving warning and attempting to stop the car, but the plaintiff attempted to cross the track, and continued to do so until she was struck. The motorman testified as follows: “When I got coming to Sixth Street I saw Mrs. Eiedel start across-the street toward Mr. Dolan’s store, and before I saw her she was out in the street. I hadn’t saw her on the sidewalk, and I started to apply the brakes right away. I saw that she didn’t seem to see the car, and I tried to stop the car at once, but before I could stop it, she got out and started to walk across the track, and I kept ringing my gong all the time from the first time I saw her, and she got across in
It is hardly necessary to say that, though the defendant was negligent, and its negligence was operative in producing the injury, contributory negligence on the part of the plaintiff would bar recovery. There was evidence tending to show such negligence on her part. It seems to be admitted in the argument that, if the jury had found for the defendant instead of the plaintiff, the verdict would' be conclusive, in the absence of any erroneous rulings of the court in the course of the trial. But it is insisted that the evidence of contributory negligence is not strong enough, or does not make such a conclusive case, as justified the court in declaring it. In other words, it is said to have been a question for the jury. She came on the sidewalk at some distance above the crossing and walked down to the corner, and thence diagonally across the street to the railway track. Along the sidewalk there were some trees, which may have obstructed the view of the motorman, although the accident happened at a season of the year when the trees were bare of foliage. The motorman says he did not see her until .after she had left the sidewalk, at a point not far from the track. The schedule, under which the car was operated, required a high rate of speed, and it does not appear that any ordinance of the city restricted the speed. The crossing was a public one, used at times by a considerable number of people, but the track was straight so that the servants of the defendant could tell from a distance whether there were people on the crossing or not. On this occasion, it was entirely free from pedestrians and vehicles when they came in view of it, nor
The duty on the part of a pedestrian or other person to look and listen before attempting to cross a railway track on a public crossing, to the end that he may avoid danger, is not open to question, This is obviously included in the general rule, imposing upon the traveler the exercise of prudence and care in effecting such crossing. White’s Supp. to Thomp. Neg., sections 1441, 1442, citing a large number of decisions. The rule is one of universal application, but in some states, it is held not negligence per se to attempt to cross without having made such use of the senses and faculties as would have enabled the party to discover the danger. In these latter states, the duty to look and listen exists, but it is always left to the jury to determine whether, under the peculiar circumstances of the case, it was necessary. In this state; failure to do so is negligence per se in the case of steam railroads, and Ashley v. Traction Co., recognizes it in the 'case of street railways, by holding that, at street crossings, neither party has superior right to the other and
That pedestrians and the drivers of vehicles have an equal right to a street crossing, with a street railway company, as held in Ashley v. Traction Co., does not relieve such persons from the exercise of prudence and care, involving the use of their senses and faculties, in crossing the track, nor qualify or limit the principle barring recovery for contributory negligence; and what amounts to contributory negligence, as matter of law, depends upon the peculiar circumstances of each case. Ashley v. Traction Co. enunciates the doctrine that no general rule for the government of all cases can be prescribed. The pedestrian, as well as the servants in charge of the car, must have regard to the conditions and circumstances prevailing at the time. A pedestrian has the advantage of power to control his actions instantly. By reason of its weight, velocity and momentum, a street car cannot be so controlled. This fact, a person approaching a crossing, must take into consideration, and so must the court, upon the inquiry as to whether he has been reasonably careful. A crowded street or crossing imposes the duty of greater care on the part of both parties than an empty, unobstructed street or crossing, where nothing stands in the way of full knowledge of the situation nor places any restraint upon the free action of the parties. Neither will be required to assume all risks. Nor will an error of judgment, resulting in injury, preclude recovery. But, if it is apparent that the failure, on the part of the plaintiff, to exercise reasonable care under the circumstances, contributed to the injury, he is barred from recovery, however negligent the defendant may have been. He cannot recklessly and heedlessly stop on a railway track at a crossing, under a claim of right to do so, and, to compel
Of course, we are not to be understood as saying a street railway company can enforce its right of passage by running over a person negligently standing or being on its track at a crossing or elsewhere, and obstinately refusing to obey the law of the road. However unlawful, unjust, wrongful and negligent the conduct of one party may be, the other cannot wantonly or deliberately inflict injury upon him. If it is in his power to prevent injury which would result from the negligence of the other party, he must do so, and it is incumbent upon him to exert himself to the utmost in that behalf. In many decisions, we have held that a pedestrian upon a steam railroad track elsewhere than at a public crossing, .is a trespasser, having no right whatever to be there; but, at the same time, we say it is the duty of the railway company, after having seen such wrongful occupation and use of its track, to prevent any resultant injury to the wrong-doer, if it be in its power to do so. This is not law peculiar to steam railroads. It is applicable everywhere and in all relations involving questions of liability for injuries caused by negligence. It is the application of a rule making liability depend on the proximate, immediate cause of the injury. But it often happens that the negligence of both parties is concurrent, inseparable, so that it cannot be said one alone caused the injury; and when this condition of affairs is shown to have existed, neither party has a right of action against the other, for both are at fault. The proximate or immediate cause o'f the in- - jury is then the joint action of both; and, when one sues the other, he is barred from recovery because, by his own negligent conduct, he contributed to the injury of which he complains.
In theapplication of these general principles to cases founded
The authorities are ’almost uniform to the effect, not only that a pedestrian, seeing the approach of a car at a negligent rate of speed, cannot take possession of the crossing and expose himself to obvious danger, under the claim of his equal right to the use thereof, but also that his assumption of a plainty apparent risk in attempting to get across ahead of a car will bar recovery. He is not held responsible to the extent of accuracy and certainty of judgment in this respect. If the circumstances are such that he might reasonably haye expected to be able to get over in safety, his attempt to do so will not preclude recovery. But if there is risk in the attempt, so manifest as to put it beyond doubt, he is held to have assumed that risk; and this is nothing-more than the application of another general principle of the law of-negligence. We apply it in cases involving injuries sustained in attempting to make .use of obviously defective highways. It applies as between master and servant. It is universally held that a servant assumes all the obvious and ordinary risks of the business in which he is employed.
A few cases, making application of these rules, are here noticed. In Goldfranz v. Metropolitan Street Ry. Co., 85 N. Y. Supp. 667, a vehicle approached a crossing at a high rate of speed, and before attempting to cross, the traveler saw a car, but made no attempt to stop or avoid it, thinking he had time to get accross the track. There was no evidence that the motorman could have stopped the car after having seen the wagon on the track, nor that it was then at such a distance from the crossing as made it possible to have stopped it. The plantiff was held guilty of contributory negligence as matter of law. 89 App. Div. (N. Y.) 590. In Stafford v. Chippewa &c. Co., 110 Wis. 331, the court held: “It is the duty of the traveler upon the street, in approaching a point where he desires to cross a street-car track, to look and listen for a coming car and to perform that duty when and where ho will have reasonable opportunity to render his efforts in that regard effective, and it is as much his duty, as a matter of law, to see an approaching car which is in plain sight and in dangerous proximity to the crossing and not to negligently place himself in the way of it, as it is to look for the car; hence evidence that he performed the duty of looking, but did not see the actually approaching car, does not raise a question of fact.” In Tesch v. Milmaukee &c. Co., 108 Wis. 593, the court held as follows: “ Before crossing a railway track, regardless of whether it be a steam or electric street railroad, a person should look both ways and listen for a coming car and perform that duty when and where it will be reasonably certain to effect its purpose; and diversion of attention, generally speaking, will not excuse the performance of such duty; neither will misconduct on the part of the railway company. An ordinary traveler upon a public street where a street car line is located and operated under a public franchise having no restrictions or regulations as to the manner of operating cars, has not the same right to go upon the track and compel the stopping of a car to enable him to pass over the track as the operator of the car has to delay his passage to enable the car to pass.” In Murry v. St.
The plaintiff here was a woman about 42 years old, healthy and sound, and in the full possession of all her faculties-The car must have been very close to the crossing when she stepped upon the track. We have been favored by counsel with a calcutation as to the probable distance, but it would be utterly impossible, by the aid of this memorandum or anything else, to arrive at any conclusion as to the exact distance. However, we may safely conclude that the car was near enough to have been both seen and heard. There is some argument in the brief as to how far the car could probably have been heard. While we do not judicially know how much noise a moving street car makes, nor how far it can be heard, we do know that, in a quiet deserted street, it can be heard for a considerable distance, in fact several hundred feet, and that the noise is sufficient to attract the attention of any one whose mind is not so preoccupied with something else as to exclude it. The authorities to which we have adverted amply justify the conclusion that the plaintiff was under a duty both to see and hear the car that struck her, and she cannot justify her failure to do so on the ground of haste in the pursuit of her own business or mental preoccupation with her affairs. The evidence relied upon to prove want of effort of the motorman to stop the car, after
We think, therefore, the action of the trial court in setting aside the verdict was right, and the order complained of will be affirmed.
Afirme