50 Minn. 395 | Minn. | 1892
Action to recover damages for injuries caused by the alleged negligence of the defendant. The plaintiff was driving a hack along Eighth street, in the city of St. Paul, going east. As he approached the intersection of Eighth and Jackson streets, (which cross at right angles,) an electric street ear of defendant was approaching the same point from the north, running down Jackson street. As plaintiff was crossing the railway track on the intersection of the two streets, the ear collided with the hack, causing the injuries complained of. The plaintiff claimed that the defendant was negligent in running the car at an unusual and dangerous rate of speed, and in not giving timely signals of its approach to the street crossing. The defendant denied these allegations of negligence on its part, and alleged that the injuries were caused by plaintiff’s own negligence, especially in driving upon the track without looking for approaching cars. Most of defendant’s assignments of error, as well as of his argument, is to the point that the verdict was not justified by the evidence. An examination of the record, however, satisfies us that upon the questions both of defendant’s negligence and of plaintiff’s contributory negligence the evidence made a case for the jury. There-was evidence reasonably tending to prove that the car was being run at an unusually rapid rate of speed,
. It is hardly necessary to say that upon such a state of facts, if found to be true, the jury would be justified in finding that the defendant was negligent.
Defendant’s main contention, however, is that the evidence conclusively shows that plaintiff was guilty of contributory negligence. There was evidence tending to show that he, was driving down Eighth street at a slow trot, say five miles an hour; that he heard no signals of the approach of cars; that on reaching the crossing he looked south, down Jackson street, and saw no cars; that he then turned his head to look the other way, (by this time his horses’ heads were just above over the nearest rail of the car track,) and saw a car some sixty feet distant, coming down; that he immediately attempted to stop his horses, but finding that he was unable to do so, owing to their restiveness, he struck them with the whip, and attempted to urge them rapidly across the track, but before he succeeded the car struck the hind part of the vehicle, causing serious injuries to it as well as to himself. The evidence shows that if, after he got beyond the obstruction of the building on the corner, he had looked northward as well as southward, he could have seen the approaching car in time to have stopped his team before getting in dangerous proximity to the car track, and his failure to do so is claimed to be negligence per se, under the rule, so often applied by this and other courts, that it is the duty of a traveler on approaching a railroad crossing to look both ways for approaching trains before attempting to cross the railroad track. The fallacy in this, w'hich runs all through counsel’s argu
In the next place, the cars of a street railway have not the same right to the use of the track over which they travel. The ordinary railroad is itself a highway, and has a proprietary interest in and to its right of way, even where the public have an easement for highway purposes over the same ground. Public necessity requires that the rights of a traveler on a highway across an ordinary railroad should be, to a certain extent, subordinate to those of the railroad company. But a street railway is not a highway. A street railway company has a mere right to use the street in common with the public generally. It is merely in aid of the identical use for which the street was created, and not a new and independent one, and it is on that very ground that a street railway company is not required to pay compensation to the owners of abutting property. Street cars are in the main governed by the same rules as other vehicles on the street, and their owners have only an equal right with the traveling public to use the street, — they have no proprietary right to any part of the street. Of course, there are some modifications of this general rule growing out of the necessities of the situation. For exam.ple, as street cars run on a track, they cannot turn out to one side of it. Hence what is called “the law of the road” does not apply to them. It would be inexpedient to attempt any complete enumeration of the modifications of or exceptions to the general rules of equality of rights between street ears and other vehicles used on a street. But it is certain that there is no modification or exception that relieves a street railway company from exercising, at least, as much care to avoid collisions with other vehicles as the owners of the latter are required to exercise in order to avoid collisions with the cars. Defendant’s requests to charge, the refusal to give which is assigned as error, are framed upon the theory that the street rail
■ Counsel argues in his brief some matters that are not assigned as error, and which, for that reason,- we cannot consider. What we have already said covers all the points in the case, worthy of special notice, which are raised by sufficient assignments of error.
Order affirmed.