Cole v. Helena Light & Railway Co. , 49 Mont. 443 ( 1914 )

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Action for damages for personal injuries alleged to have been sustained by the plaintiff in a collision between a wagon in which she was riding and a car of the defendant Helena Light & Railway Company, in the city of Helena, brought about by the negligence of the defendant Vickery, the motorman in charge of the car. One line of the railway extends north from the central portion of the city along Park Avenue to its junction with Benton Avenue, and thence north along the latter for several blocks, crossing Lyndale and Wilder Avenues. After leaving the limits of the city, the line extends to the State Fair grounds, situate to the northwest. The collision occurred near the intersection of Benton and Wilder .Avenues. Benton Avenue is seventy-six feet in width. The railway at this point has a double track. The space between the outer rail of the track to the east and the curb of the sidewalk is sixteen feet and ten inches. For several hundred feet to the south the avenue is perfectly straight and to the point at which the collision oceurred, is nearly level, its grade being 1.51 per cent down toward the north. The plaintiff narrated the circumstances of the accident as follows: During the afternoon of Saturday, September 28, 1912, she was proceeding along Benton Avenue, intending to go to the State Fair grounds to purchase vegetables from the owners of some of the collections of farm products which had been on exhibition at the State Fair during t'he preceding days of the week. Her wagon was a light spring wagon drawn by a single horse. Cars were passing at short intervals in both directions, and also many vehicles carrying passengers to and from the Fair grounds. After passing Lyndale Avenue the plaintiff overtook a heavy wagon loaded with coal moving along the east side of the street. Being anxious to reach the Fair grounds and observing that the street beyond the coal wagon was free from passengers, she undertook to pass this wagon by driving to the left between it and the car track. Whether the space between the wagon and the track was of sufficient width to permit her to pass without getting upon or in dangerous proximity to the track does not distinctly appear; perhaps the evidence furnishes ground for an inference that she could barely pass with safety. As she was turning in near the track, having slowed her horse down to a walk, she heard the clang of the bell .of a ear coming from the south, and attempted to turn to the right, but before she could do so the car caught the front wheel of the wagon, with the result that she was thrown from her seat into the body of the wagon by the shock of the collision, suffering the injuries complained of. The wagon was not overturned, the injury done to it being the breaking of the wheel and body, and a part of the coupling gear.

The complaint is prolix and contains much repetition. It is alleged, in substance, that plaintiff, in her haste to reach the Fair grounds, was wholly absorbed in her purpose to accomplish her mission, so far so that she did not observe the approach of the car from behind; that being wholly oblivious of her surroundings she unconsciously put herself in a position of peril by driving directly in the way of the car; that the defendant Vickery saw the peril of the plaintiff and also that she was wholly unconscious of her condition; and that he nevertheless, by not having the ear under control and by permitting it to run at a dangerous rate of speed, negligently and recklessly brought it into collision with plaintiff’s wagon.

The defendants by separate answers admitted that plaintiff was injured by the collision as alleged, but by way of denials and counter-averments tendered issue upon all the allegations imputing negligence to them. At the close of plaintiff’s evidence the defendants moved the court to direct a verdict in their favor. Pending argument on the motion, counsel for plaintiff requested permission to introduce additional testimony which they deemed material. The request was denied. Thereafter defendant’s motion was sustained and judgment ordered accordingly. The plaintiff has appealed from the judgment and an order denying her motion for a new trial.

Counsel for defendants has made the point that, however erroneous may have been the action of the court in directing [1] a verdict, this court may not review it because the complaint does not state facts sufficient to constitute a cause of action. The contention that the complaint is b.ad is not well made. If this were the case, defendants would be entitled to an affirmance of the judgment and order without further consideration of the appeals. (Tracy v. Harmon, 17 Mont. 465, [2] 43 Pac. 500; Shober v. Blackford, 46 Mont. 194, 127 Pac. 329.) We shall consider the argument of counsel in this behalf only so far as to remark that it is not the law, as counsel seems to think, that the allegation that plaintiff, being oblivious of her surroundings, unconsciously put herself in peril by driving directly in the way of the car, is conclusive of her right to recover. Whatever may have been her negligence in this regard, it was nevertheless incumbent upon the defendant Vickery to keep a constant lookout ahead and around for other passengers and vehicles passing along the street, and to use all reasonable care to avoid collision with them. All other persons have a right to the use of a highway in common with the railway company, and since it, and not the casual passenger, is controlling and propelling over it its ears — -which are instruments of danger — the duty is cast upon its-agents to exercise constant care and watchfulness to avert injury to other persons, even though such persons may become heedless of their surroundings and for this reason get in the way of danger. The duty to discover the perilous situation is commensurate with the duty to avert injury, and when (diligence and care in either respect is relaxed and injury results, liability attaches. (Flaherty v. Butte Electric Ry. Co., 43 Mont. 141, 115 Pac. 40; 2 Thompson on Negligence, sec. 1476). Any other rule would exonerate the railway company from liability in every case unless it could be made to appear that the motorman actually saw the peril of the passenger and then failed to exert his efforts to avert the collision. In every such case, therefore, the inquiry is: Did the motorman exercise care and watchfulness to discover the peril of the passenger, and did he promptly make use of all the appliances available to avert the injury?

Counsel for plaintiff have assigned error upon several rulings of the court in excluding evidence, and discussed some of them someivhat at length in their brief. We shall not give special notice to any of them, for the reason that such of the excluded evidence as was of substantial value afterward found its way into the ease, - while that which was finally excluded could not have strengthened plaintiff’s case as made.

As we view the evidence as a whole, it was insufficient to make a case for the jury. The ease stated in the complaint is that [3] the plaintiff, being wholly oblivious of her surroundings, unconsciously put herself in a position of peril, and that the motorman, having observed her condition, failed to exercise care to prevent a collision. The plaintiff was the only witness who testified as to what the conditions were at the moment of the catastrophe. She had not observed the approach of the car. How near it was at the moment she turned toward the track, she did not state. At what rate of speed it was going did not appear. "Whether it stopped at the moment of the collision or by the force of its own motion passed beyond that point did not appear. The plaintiff did not hear the bell until the moment the collision occurred. There was no suggestion that the motorman did not have his car under full control or was not going at a lawful rate of speed, or that he did not ring the bell so as to give proper warning before plaintiff turned toward the track, or immediately at that time; for in view of her statement in her complaint that she was wholly unconscious of her surroundings, any statement that she did not hear the bell until the moment of the collision did not tend to show that the motorman did not give timely warning. Evidently, until she turned to the left to pass the coal wagon, she was not in the line of danger, and the motorman was not bound to anticipate that she would turn from the place of safety until she began to do so; and so far as anything to the contrary appears, it was then too late for the motorman to avert the collision. He may have been so near when she turned toward the track, that the prompt use of the most approved appliances could not have prevented the collision. Under the rule applicable in this class of cases as stated above, some lapse of duty must have been made to appear before liability could attach; otherwise the happening of an accident resulting in injury to a passenger would be sufficient to make out a prima facie case of liability, thus making the railway company an insurer of the safety of every passenger upon the streets from injury by its cars while they are in motion. Under the facts as proven, the question whether the motorman was at fault, or whether the accident was attributable entirely to the want of attention on the part of plaintiff, was left altogether to speculation. This condition of the evidence did not require a submission of the case to the jury; hence a verdict for the defendants was properly directed.

Nor did the court err in refusing to reopen the case for the introduction of additional evidence offered on behalf of plaintiff, as counsel contend. One Ludwick, an experienced motorman called by the plaintiff, was questioned and answered as follows: “Q. Then, if you were running with the slack in the brake taken up, and you saw danger ahead, and you had a light car, just what have you got to do to stop it? A. While he [the motorman] is approaching and sees the danger, he prepares for an emergency stop by turning off the current and reversing. Q. How long does that take? A. An instant.” As appears from the affidavit of counsel in support of their motion to reopen the case, the answer of the witness was understood by them to refer to the time required to bring a car to a full stop under conditions theretofore hypothetically stated. The purpose of having the case reopened was to have the witness state that' under the conditions named, the car could have been brought to a full stop within six feet. The conditions hypothetically stated to the witness had not been then, nor were they thereafter, disclosed by the evidence, except that it had appeared that Benton Avenue is nearly level, that the car was a light ear, and that it could properly be assumed from the plaintiff’s statements of the circumstances of the accident that the defendant Yiekery had, some distance (not stated) from the point of collision, seen that plaintiff had gotten within the danger line.

The reopening of a' case for the. introduction of further [4] evidence after it has been closed is within the discretion of the trial court. Its ruling upon the request to reopen will not be disturbed by the appellate court, unless there has been a clear abuse of discretion. (Alderson v. Marshall, 7 Mont. 288, 16 Pac. 576; Schilling v. Curran, 30 Mont. 370, 76 Pac. 998.)

Now, let it be assumed that the court had granted the request of counsel and admitted the evidence; in what respect was [5] plaintiff’s case as made aided by it? There was nothing in the evidence to show or tending to show that the defendant Yiekery did not bring the car to a full stop within the distance named by Ludwick, after it became apparent that plaintiff had come within striking distance of the car. Every-day experience teaches that a heavy body, such as a street railway car — even a light one — when moving at a very moderate rate of speed produces a considerable amount of shock, entirely sufficient to break or overturn an ordinary vehicle coming in contact with it and to injure the occupants by causing them to be thrown and perhaps to fall. So far as the evidence discloses, the motorman did everything in his power to avert the collision; and since the offered evidence did hot tend in any way to show the contrary, the court did not err in refusing to reopen the case to admit it. There was nothing before it calling for the exercise of discretion.

Rehearing Denied January 6, 1915.

The judgment and order are affirmed.

'Affirmed,.

Mr. Justice Holloway and Mr. Justice Sanner concur.