Metropolitan Railroad v. Blick , 22 App. D.C. 194 ( 1903 )

Mr. Justice Morris

delivered the opinion of the Court:

1. The appellant’s first exception and first assignment of error are addressed to the ruling of the trial court with reference to the testimony of one of the witnesses for the plaintiff, who stated that he judged that the car was running about 13 or 14 miles an hour. This statement, which may be said to have been extorted by counsel for the plaintiff from the witness, who professed his inability to testify with accuracy, was admitted in the first instance without exception reserved to its admission by the defendant. But afterwards, when it became apparent, as it was assumed, that the witness had not taken sufficient notice of the car to be able to testify correctly to its speed, counsel for the defendant moved to exclude the testimony. This the trial court refused to do, and remarked that it was proper to go to the jury for what it was worth. To this ruling exception was reserved on behalf of the defendant.

The ruling was entirely correct Any man of average intelligence who sees a moving car or a moving vehicle of any kind is competent in law to form and express an opinion as to its speed; and the opinion is competent evidence in a case like the present. But the value of the evidence is for the jury. It may be practically worthless for the want of the attention on the part of the witness sufficient to give it value; but of its sufficiency in law to go to the jury for what it may be worth there can be no reasonable question. It is not deemed necessary to cite authority in support of so plain a proposition.

2. More important, however, and more demanding our serious consideration is the proposition of the appellant that a verdict should have been directed in favor of the defendant, on the ground that there was no sufficient testimony to establish negligence on the part of the defendant, and because the plaintiff was guilty of contributory negligence. But we think that the trial court was clearly right in its ruling in this regard.

Plainly there was no proof of contributory negligence on the part of the plaintiff such as would justify a peremptory verdict against him. At the most only a question of fact was raised for the jury. He was passing up along the side of the defendant’s track. The defendant’s car had almost passed him in safety. There was ample room for both car and wagon to proceed onwards in safety, had it not been for the curve which the car was here required to make. There might have been mistake, or miscalculation, or inattention on the part of the plaintiff; but certainly there was no such clear case of negligence as that all sensible men could take but one view of it. We think it would have been error to take the case from the jury upon any such ground as this.

Nor was there such failure of proof that the defendant was negligent as would justify the withdrawal of the case from the jury. Both the plaintiff and the defendant were entitled to be on the street. The defendant had a superior right of way so far as to require that the plaintiff should put no obstacle in its way; but it had no exclusive right. If the plaintiff was too dangerously near the track, the motorman of the car must have been aware of the fact. There was testimony that he was propelling his car at very great speed; the injury to the wagon and the distance which it was thrown is ample proof of this, apart from the testimony of any witness as to the rate of speed. In fact, it would seem that considerable speed was necessary in order to surmount the elevation and go round the curve. Then the motorman knew, or should have known, that the rear end of his car projected several feet beyond the track in going round the curve, and that therefore there was danger from it to passing vehicles. Intelligent men might well be divided in opinion as to the duty of the motorman in the premises; and if this be admitted, as we think it must be, it is plain that a case arises for the jury, and not for the court. It was proper, therefore, for the trial court to decline to take the ease from the jury, or peremptorily to direct a verdict for the defendant.

3. If there was here a case for the jury, as we think there was, we think also that the instructions were proper under which it was submitted to the jury. We do not deem it necessary to consider these instructions in detail. They do not announce any new rule of law. They are all well founded in reason, and well supported by authority; and, together with the charge of the court, they fully and fairly cover the whole case and state the law with substantial accuracy. In fact, this is not seriously controverted by the appellant. The argument on behalf of the appellant, in this connection, is that the instructions given by the court had the result to negative one that was asked by the defendant and refused, to the effect “that, if the wagon was far enough from the track so that a reasonably prudent man might have formed the honest belief that the rear of the car would pass it, and the motorman actually believed this, then the defendant was not liable, because there was no negligence on the part of the motorman.” But the plain answer to this argument is, — first, that the record fails to show any such instruction, dissociated from objectionable elements, as having been requested and refused ; secondly, because the instruction is inconsistent in itself, since, if a car projects 4 feet from a track, it must necessarily strike anything within such 4 feet, and no prudent or reasonable man could think differently; and, thirdly, because this precise point had been fully and satisfactorily covered by the first instruction given by the court at the request of the plaintiff, and it was not necessary to duplicate it in other words. This first instruction told the jury that the motorman was not obliged to use greater care than a reasonably prudent man should, in tbe situation, have used in operating around this curve a car of the kind that was used.

On the whole, we find no error in the record that in our opinion would justify a reversal.

We think that the judgment appealed from should be affirmed, with costs. And it is so ordered. Affirmed.