(after stating tbe facts):
Tbe court submitted tbe question of tbe negligence of tbe defendant, tbe contributory negligence of tbe deceased, in connection with bis age, capacity, and condition under tbe circumstances, and tbe condition of tbe car, to tbe jury. Tbe court instructed tbe jury, among other things, that “eren though you believed tbe son of tbe plaintiff was guilty of contributory negligence by crossing tbe track without observing whether or not tbe cars were running thereon and in operation, or by any other act, and that, if be bad been free from such contributory negligence, tbe injury would not have occurred, yet if tbe motorman, after the act of contributory negligence complained of, bad the opportunity, or could, by tbe use of reasonable care, bad tbe brakes and motor of tbe car been in proper condition; have avoided tlie accident, then the act of said motorman, which is the act of defendant company, was tbe proximate cause of tbe injury complained of by tbe plaintiff.” “ If you believe from tbe evidence that tbe defendant company exercised due care and caution in operating tbe car at tbe time of tbe accident, and that the. accident was not in any way tbe result of any defect in the appliances for controlling tbe car, then tbe defendant would not be liable.” Exceptions were taken to these instructions. Appellant’s counsel contend that conceding tbe fact that tbe defendant was negligent in sending out a defective car, and that tbe deceased was also negligent in crossing tbe track in front of tbe car, in such a case it was the only duty of tbe defendant, after discovering the dangerous situation of the deceased, caused by bis own negligence, to exercise all reasonable care and diligence at bis command at tbe time of tbe injury, and that when tbe motorman did all be could to stop tbe car, although its brakes wrere defective, tbe defendant could not be held
Persons traveling upon a public street, and crossing street-car tracks, are not held to tbe same degree of care as when crossing a steam-railroad track. This is so because in tbe one case tbe street car can or should be in sucb a condition as. to be brought readily under control, and because tbe public bave a right to travel upon all of tbe public streets, while sucb rights do not usually exist with reference to steam railroad tracks. When tbe streets were originally platted, they were not designed for street railways, but .were confined to the right of public travel, with equal rights to all persons traveling thereon. Tbe right conferred upon a street railway is not superior to that of tbe public at large, except tbe right to lay its tracks and operate its cars, wbicb must be done with as little inconvenience as possible to tbe public travel. Tbe right conferred includes no exclusive right to use tbe track or street. Neither has tbe citizen tbe exclusive right to tbe use of tbe street or track. Tbe cars bave tbe right of way in case of meeting vehicles or persons on tbe track, but each party is bound to exercise sucb ordinary care, prudence, and precaution to avoid injury as tbe surrounding circumstances may require. That which might be ordinary care in running horse cars might be gross negligence in operating street cars propelled by electricity or running at a high rate of speed. Tbe electric car is propelled by a force that cannot be easily controlled
In the case at bar, the motorman saw the deceased when he was about 20 feet from the brack. He rang the bell, and as the deceased approached the track, with the evident intention of crossing without looking up or seeing the car, he applied the brakes, and intended to reverse the car; but the handle of the brake was so out of repair that he received an electric shock from the motor that disabled him for a second, and delayed his purpose. The brakes were out of repair, and would not work, and he could not stop the car with the appliances furnished until the injury was done; and, with all his efforts to stop the car, it ran about 50 feet after it struck the boy before he could stop it. Notice of the defective condition of the car had
The testimony also shows that the deceased was deaf and dumb, but a well-grown boy, a little over 14 years of age, and possessed of at least average intelligence and quickness of comprehension. He was acquainted with street cars. His eyesight was good. He was of sufficient age and intelligence to understand the dangers that surrounded him in that locality, and, on account of the defect he was laboring under; was more bound to use the sight he possessed for his own safety. The question of his contributory negligence was properly submitted to the jury. 2 Shear. & E. Neg. § 481. Both parties being negligent, the true rule is held to be that “ the party who last has a clear opportunity to avoid the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it.” 1 Shear. & E. Neg. § 99. It is also well settled that a plaintiff may recover damages for an injury caused by the defendant’s negligence, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if such injury was proximately caused by the defendant’s omission, after becoming aware of the plaintiff’s danger, to use ordinary care for the purpose of avoiding the injury to him. 1 Shear. & E. Neg. § 99. Under such circumstances, the obligation rested upon the defendant to exercise reasonable care to avoid the conse