Washington Railway & Electric Co. v. Cullember
39 App. D.C. 316
D.C. Cir.
1912
Check Treatment
Hr. Chief Justice Shepard

delivered the opinion of the' Court:

In accordance with the usual practice in damage suits of the kind, defendant requested an instruction upon the close of the evidence to return a verdict. This has necessitated the-somewhat lengthy statement that has been made of the substance-of the evidence. It is sufficient to say that, with the application of the principles of law defined in the charge to the evidence,. *323there was no error in refusing to direct a verdict for defendant. Bearing in mind the applicable principles of law, it cannot be said that the evidence of plaintiff’s contributory negligence was so plain and conclusive that all reasonable minds could but come to the same conclusion.

Several assignments of error founded on exceptions taken to special instructions given and refused, and the general charge, will be considered together, as they present substantially th© same question. This is presented by the modification made of the second special instruction asked by defendant before it was. given to the jury. This instruction, as asked, was to the effect that it was the duty of plaintiff in crossing that part of th© street along which he knew the defendant’s cars were accustomed to pass, to exercise reasonable care for his own safety; andl that if the jury believed that plaintiff did not exercise the care for his safety that a reasonably prudent man would exercise under the circumstances, and that his failure to do so directly contributed to the injury, it was their duty to return a verdict for the defendant. The court gave the instruction, with the following modification: “That of course is to be taken in connection with the fact that if plaintiff had gotten upon the track at the time when defendant’s motorman either did see him, or could have seen him by the use of reasonable diligence, and could have stopped the car, then it was the duty of the motorman to stop the car when he saw the obvious danger the plaintiff' was in.” The defendant excepted to so much of the modification as “told the jury it was the duty of the motorman to stop the car not only if he saw the plaintiff had gotten on the track, but could have seen him by the use of reasonable diligence.” The same alleged error was committed in other part© of the charge that were duly excepted to.

It is a settled principle of law that, notwithstanding th© plaintiff’s own negligence may have exposed him to the risk of injury, he may nevertheless recover if the defendant’s negligence, after becoming aware of the plaintiff’s danger, was directly responsible for that injury. Capital Traction Co. v. Divver, 33 App. D. C. 332—336; and cases there cited; Balti*324more & O. R. Co. v. Griffith, 34 App. D. C. 469. The contention on behalf of appellant is that in the application of this principle it is essential that the defendant shall have been actually aware of, that is to say,' shall have actually seen the danger of the plaintiff' in time to prevent injury by the exercise of reasonable care; and it is not sufficient merely that the defendant, as stated in the modification of the charge, could have seen him by the use of reasonable diligence “in time to •■stop the car.” Granting for the purpose of the argument that this may be the correct application of the rule in the case of steam railway trains crossing public highways, it does not necessarily follow that it extends to the operation of street cars in the streets of cities and towns. “It is common knowledge that the conditions attending the operation of ordinary .steam railways across country highways, and even city streets, .and those attending the running of electric cars along the (streets of an ordinary city, are essentially different. The form'er run at considerable intervals, have much longer and heavier trains, and are not easily brought to a stop. The latter run with frequency—car following car—in rapid succession,—are always in more or less crowded streets, and can be stopped quickly. The exigencies of daily traffic and the needs and conveniences of individuals result in constant crossing of street railway tracks, both at and between street crossings. | Knowing this, those engaged in running the street cars are under a duty to exercise ordinary care to prevent running over vehicles and pedestrians. These latter must also exercise due care in looking out for coming cars, and must not recklessly expose themselves to danger. No fixed rule can be laid down for the government of every case that arises. What is due care must depend upon the circumstances of the particular case.” Capital Traction Co. v. Apple, 34 App. D. C. 559-569. In the same case, which was one of a party run down in crossing the street, it was also said (p. 511) : “Aside from the duty imposed by law not to exceed a certain rate of speed, it is the duty of the car operator to keep a diligent look out ahead so that the car may be .stopped in time, if possible, to' avoid injury to one who may *325be crossing ahead of him.” The particular point under discussion was not' directly presented in that case, but was incidentally involved and under consideration. See also Capital Traction Co. v. Crump, 35 App. D. C. 169—183, in a concurring opinion in which Mr. Justice Van Orsdel, referring to the Apple Case, said: “There was also evidence tending to show that the motorman was negligent in not giving warning by the sounding of the gong, and in not stopping or attempting to stop his car, when, by the exercise of reasonable care, he could have discovered the perilous position of the plaintiff.” The expressions in the opinions quoted from follow the doctrine of the case of Hawley v. Columbia R. Co. 25 App. D. C. 1—5. That was a case where a man had been struck by a car at the intersection of Fourteenth street and New York avenue. Mr. Justice Morris, who delivered the opinion of the court, said: “Here the motorman of the defendant company had ample opportunity to guard against the accident if he had been using even ordinary care and prudence and attending to the proper performance of his duty. * * * At one of the most dangerous crossings in the city of Washington he was not looking ahead as he should have looked, and he had abandoned all control both of the controller and of the brake of the car.” The contention of the appellant that the foregoing case has been overruled by the Supreme Court of the United States in Chunn v. City & Suburban R. Co. 207 U. S. 302, 52 L. ed. 219, 28 Sup. Ct. Rep. 63, is untenable. If any inference is to be deduced from the opinion in that case it is to the contrary. The decision of this court, that the plaintiff had been guilty of contributory negligence, was reversed, but the Supreme Court agreed that there was evidence of defendant’s negligence sufficient to warrant submission to the jury. Plaintiff was standing in a space between the tracks, at a place.where passengers usually boarded the car bound to Washington. The car coming from the city ran rapidly by and struck plaintiff. There was; no evidence that the motorman saw the plaintiff in time to stop his car; but as stated by the Court: “One standing on the platform at this point could see or be seen for a distance of at *326least a quarter of a mile north or south. On the evening of September 29, 1900, the plaintiff came to this place to take the car for Washington. The hour was not stated, but it was light enough to recognize a person a hundred yards away.” Washington & G. R. Co. v. Harmon (Washington & G. R. Co. v. Tobriner) 147 U. S. 571, 37 L. ed. 284, 13 Sup. Ct. Rep. 557, is not in point. It was the case of a passenger injured by negligent starting of the car as he was in the act of getting off. The rights and duties of railway companies and of individuals traversing the streets of the city are reciprocal. Each must recognize the rights of others and exercise reasonable care to .avoid inflicting or receiving injury. Appellant’s contention that plaintiff was guilty of contributory negligence, as matter of law, rests upon the proposition that under the evidence he could and should have seen the coming car before attempting to cross the tracks. It was likewise the duty of the motorman to see that which he could have seen if exercising ordinary care. Knowing that vehicles must frequently cross the car tracks, it was his duty not only to his passengers, whose safety might be endangered by collisions, but to the general public, to run his car within the rate of speed prescribed by law, to keep a look out ahead of him, to keep his car under reasonable control, and to stop the same if reasonably possible in time to avoid injury to one who, even by his own negligence, had exposed himself to danger. The conditions of modern city life make this a reasonable rule of sound public policy looking to the preservation of the public safety. The evidence tended to show that the motorman, if exercising reasonable care, could have seen the danger of the plaintiff in time to have stopped his car, if under proper control, and avoided the collision. There was no error in the modification of the charge which submitted this question to the jury. Without setting out the assignments of error based on the charge relating to contributory negligence on the part of the plaintiff, it is sufficient to say that this was correctly stated both in the modified instruction and the general charge.

Another assignment of error is on an exception taken to so much of the charge as submitted to the consideration of the *327jury, as an element of damage, the question of the permanent impairment of plaintiff’s hearing. We perceive no error in this. Plaintiff’s testimony tended to show that he had good hearing in each ear before the injury; that the hearing in one had been impaired, if not destroyed, by reason of his injuries; ■and that this condition had continued during the more than two years which had elapsed before the trial. This was to .some extent corroborated by Dr. Taylor and contradicted by Dr. Wellington. The credibility of the witnesses and the weight ■of the evidence were for the consideration and determination of the jury.

The last assignment of error is on exception taken to the -evidence that plaintiff was not stoop shouldered before the injury “like he is now.” As appears from the recital in the statement of the case, defendant objected to this evidence be•cause there was no such injury alleged in the declaration. The ■court ruled that it was admissible if it could be shown by expert testimony that this was a result of the spinal injury alleged ■and proved. Counsel for defendant was allowed his exception. No attempt was subsequently made by plaintiff to show that the ■condition testified to was the consequence of the spinal injury, nor was the objectionable evidence withdrawn. Counsel for defendant did not afterwards move to exclude it.

The evidence was not justified by the allegations of the declaration which particularly described the injuries on which the claim for damages was founded. The contention of plaintiff is that it was the duty of the defendant to move to exclude the evidence upon the failure of plaintiff to offer the necessary connecting evidence required by the Court. Many cases are cited in support of the contention. O’Brien v. Keefe, 175 Mass. 274-278, 56 N. E. 588; Bayliss v. Cockroft, 81 N. Y. 363-370; Hard v. Achley, 117 N. Y. 606-617, 23 N. E. 177; Dorn v. Cooper, 139 Iowa, 742-746, 117 N. W. 1, 118 N. W. 35, 16 Ann. Cas. 744; Thomas v. State, 129 Ga. 419—421, 59 S. E. 246; Galveston, H. & S. A. R. Co. v. Janert, 49 Tex. Civ. App. 17, 107 S. W. 963. Those eases do not appear to be ■directly in point. In some of them evidence was offered with *328the statement that its relevancy would be shown by further evidence, and so received, subject to a motion to exclude upon failure. In others it is not clear that exceptions had been reserved at the time, though such may have been the case. In the absence of direct controlling or strong persuasive authority^ we would not be inclined to hold that it was the duty of the defendant under the circumstances of this case to renew his ■motion to exclude the evidence. The evidence was not received subject to defendant’s motion to exclude, but subject to his objection and with his exception noted. It would seem more just and reasonable under those circumstances to make it the duty of the party committing the error to avoid the consequences by asking to withdraw or exclude the improper testimony. We do not now find it necessary to decide the question. Assuming that defendant’s exception was ■ well taken and that his duty ended therewith, we are of the opinion that the error was a harmless one that would not warrant a reversal of the judgment. We must presume that the jury was composed of men of average intelligence and sense of duty. They must have understood from the remarks of the court that the evidence was not to be considered relevant unless it should be shown by expert testimony that the condition was the result of the spinal injury. This was emphasized by the special instruction given at request of plaintiff, and by the court’s own charge, which expressly limited the recovery of damages for permanent injuries “to his limb, and to his hearing in the future, and the loss of partial use of such limb.” The amount of the verdict indicates that the jury confined themselves to the elements given in the charge.

Satisfied from all the circumstances that no possible harm was sustained by the defendant by the ill-advised offer of the evidence objected to, the judgment ought not to be reversed.

It will, therefore, be affirmed, with costs. Affirmed.