Hickman v. Union Depot Railroad , 47 Mo. App. 65 ( 1891 )

Biggs, J.

The defendant owns and operates an electric street railway in the city of St. Louis. The ordinances of the city, conferring the right to the use of the streets, among other restrictions, prohibit the defendant from running its cars at a greater rate of speed than fifteen miles an hour.' The road has a double track, and it extends north and south along the center of California avenue. This avenue is sixty feet wide, and is intersected at right angles by Keokuk street, of like width. On the night of October 11, 1890, the plaintiff’s son, while driving the plaintiff’s horse and buggy, attempted to.cross the defendant’s track at the intersection of the above-named streets. There was a. collision with one of the defendant’s cars, which resulted in damage to the horse and buggy. The present action originated before a justice of the peace to recover the damage, The plaintiff alleged that the collision was brought about by the negligence of the defendant’s servants in running the car. The defendant denied that its servants were careless or negligent, but averred that the accident was directly produced by the negligence of the driver of the horse. The plaintiff had judgment, both before the justice and in the circuit court, and the defendant, by successive appeals, has brought the case to us for review.

The defendant complains of the action of the court in giving and refusing instructions. Two assignments are based on the action of the court in refusing instructions asked by the defendant. The assigments may be considered together.

The refused instructions are as follows:

“You are instructed that it was the duty of the person driving plaintiff’s buggy, before crossing defendant’s railway tracks, to look and listen ■ for approaching railway cars, and if you find from the evidence that the person in charge of plaintiff’s buggy failed to look and listen, and that by looking and listening he might have observed the approaching motor car in time to avoid a collision, and that by the exercise of reasonable care he might have avoided such collision, then you will find for the defendant.”

“ You are instructed that the defendant’s cars have the preference in the use of its tracks, and that the driver of plaintiff ’ s horse and buggy had no right to drive upon the railroad tracks so as to obstruct or unnecessarily interfere with the passage of defendant’s motor car; and, if the person in charge of the buggy drove upon said track without necessity, when a car was approaching at a short distance, and in sight, he was bound to exercise more care and diligence than he would in driving upon a common roadway to see that the car was not impeded and to avoid collision. It was the duty of plaintiff’s driver, under such a state of facts, to stop the vehicle or to turn aside to avoid the car, and if, through negligence or wilfulness on his part in this respect, a collision ensued the plaintiff is not entitled to recover damages against the defendant, provided the defendant exercised reasonable diligence to avoid the accident after it became aware of the danger to which plaintiff had been exposed.”

The determination of these assignments requires a discussion by us of the nature and extent of the right of the defendant to the use of the streets for its railway, and the degree of care necessary to be exercised in running such a road to avoid injury to persons and property lawfully on the streets. And the questions thus presented necessarily involve the corresponding duty and care of the citizen, while using the street, to avoid such injuries.

The court told the jury in its instructions that, if the driver of the horse failed to exercise “ ordinary care” in approaching the defendant’s railway tracks, or in attempting to cross them, then he was guilty of contributory negligence, and the plaintiff could not recover, unless the jury further found that the defendant’s servants in charge of the car could have stopped it in time to have avoided the collision, after they saw, or by the exercise of ordinary vigilance could have ascertained, the perilous position in which the horse and buggy were placed. The aim of the defendant’s first instruction, which the court refused, was to supplement this charge, by informing the jury that, under the circumstances of this case, '■'•ordinary care,” as used in the court’s instructions, required the driver of the horse and buggy to listen and look for approaching cars on the defendant’s road. It is conceded that this is the law applicable to steam railways, but the plaintiff’s counsel argues that no such duty is imposed by law on a person approaching the crossing of an electric or cable railway.

In the discussion of this question we are substantially without precedent to guide us in its solution, because we are dealing with a new means of transportation, and a new use of the streets. But the principles of the common law are so comprehensive that they find ready application and govern in all business transactions, however novel or complex. When railroads were constructed, and the steam engine or locomotive was invented, the courts readily applied the principles of the common law to this new and dangerous agency, and, among other things, decided that it was negligence to run such a dangerous thing as a locomotive across a public highway or street without giving some warning of its approach. It is upon this principle that our legislation on the subject is based. The courts also decided that, although all persons were entitled to the free use of the public highways and streets, yet it was negligence for anyone to cross a railroad track at the crossing of a public highway without looking and listening for the cars. When the courts were asked to apply the same rule to a person crossing the track of a street railway, where the cars were drawn by horses,- it was held that the same degree of watchfulness ought not to be exacted, because horse cars are not run at the same rate of speed as steam cars, — are not attended with the same danger, and are not so difficult to check. Some of the courts also placed this rule on the additional ground that the horse railway had not the same right to the use of its track as a steam railway had to its track. We admit that the right of occupation is different, but we are not clear that this difference of tenure affords any reason for a different degree of vigilance on the part of the citizen. But we are not dealing with a horse-car case. We have here an electric railway, a new and different motor power, and we are called upon to lay down some general rules which should govern in its operation, and also say whether persons, before attempting to cross the track of such a railway, should look and listen for the cars. We do not think that it could be successfully maintained that the law requires only that degree of care in operating an electric road, which it exacts in running horse cars. The degree of watchfulness ought to be much greater in the one case than the other, because the danger of collision from an electric car is much greater by reason of its greater speed and momentum. We, therefore, think that the law requires, and common prudence dictates, that persons in charge of an electric car, should not only keep a strict watch along all portions of the route, but that they should give warning of the approach of the car to a street or other public crossing. It is for like reasons that we think that a greater degree of watchfulness is imposed on the citizen in the one case than the other. It is asking but little of a person to use his eyes and ears in traveling along the streets of a populous city, especially when he knows, as it appears that the driver of the horse did in this case, that he is approaching the crossing of an electric or cable road. Therefore, we are unable to see why the courts should not so instruct the jurors, where electric or cable roads are concerned. It is done every day in steam railway cases, where the conditions are substantially the same. Our conclusion is that the court committed error in refusing the defendant’s first instruction. Whether the error was harmless or not, depends upon other facts and circumstances which we will notice further on in this opinion.

The refusal of defendant’s second instruction was proper. It is true that it is the duty of a person driving a wagon or other vehicle along a public street to give the right of way to the cars of a street railway, and it is wrong for such person to unnecessarily interfere with or obstruct the passage of cars. But the fact that such person drives onto the tracks of a street railway does not make Mm a trespasser thereon. He has a right to be there, but he must turn aside when, he meets a oar, or when it is necessary to let one pass. If he is placed in a position of peril by driving on or across the railway track, it is the duty of the person running the car, from which danger is to be apprehended, to use ordinary care, that is, a careful watch, to discover the danger to which he is exposed, and to exercise reasonable diligence to avoid the accident, and the defendant’s second instruction was faulty because its closing sentence did not contain that qualification.

Let us now examine the evidence bearing on the accident, to determine whether the refusal of the defendant’ s first instruction was harmless. The presumption is that it was prejudicial. While we decide that it was the duty of the plaintiff’s son to look and listen for cars before he attempted to cross the tracks of the defendant’s road, yet a failure to do so did not amount to contributory negligence on his part, unless it can be reasonably inferred that, if he had loolced and listened, the accident would not. have happened. He testified that the motorman failed to ring the bell, but the motor man and conductor testify that the bell was rung. Under the defendant’s evidence, therefore, the plaintiff’s driver could have heard the bell, had he listened. He testified that he looked for the car before he came to California avenue, but, on account of an embankment and fence on the south side of Keokuk street, he could only see down the avenue for fifteen or twenty feet. He also declared that, when he reached California avenue, he looked each way for cars and did not see any, although he confessed that his view was unobstructed for several blocks in the direction of the car; that the car carried a- large headlight and must have been in sight' at the time he looked. These latter physical facts, which are conceded, force us to the conclusion that the' witness was mistaken when he testified that he looked and did not see the car. As well might we be asked to accept the statement that he looked for the sun on a clear day, and failed to see it. The evidence tended to prove that the- horse was going five or six miles an hour; that he could have been checked or stopped very quickly, and that his head was some twelve or fifteen feet from the track on which the car was approaching when the driver first reached a point from which he had an unobstructed view of the track. These facts to which the driver of the horse testified have a tendency to prove that the accident could have been avoided, if the driver had only looked, and made proper efforts to stop his horse after he discovered the car. We, therefore, conclude that the circuit court committed prejudicial error in refusing the defendant’s first instruction. Without it, the jury might have concluded that it was not the driver’s duty to look for cars.

The judgment will be reversed, and the cause remanded.

All the judges concur.