Railway Co. v. Whitcomb.

"The electric street car tracks of the street railway company along Hunt street, along which plaintiff was driving, were in and of themselves a warning to Whitcomb that a car might at any time approach upon the track towards which or upon which he was driving. Gentlemen, I said to you this morning that the street railway company had the right to use the streets; that the plaintiff had the right to use the streets. None of them had an exclusive right, but there is this one qualification with reference to street cars passing along the street as provided for in the ordinances of the city, which are in evidence. Wherever a wagon or other vehicle is on the track in advance of a car, it is bound to get out of the way, and not to obstruct the passage of the car."

This is a correct exposition of the relative rights of the street railway companies and the rest of the public who use the street. If this is all that the word "paramount" means, then the court, in effect, charged the jury that the street railway company had the paramount right to use the space between its tracks upon the street. If "paramount" means more than this, the charge requested should not have been given. We cannot, therefore, see that the defendant was prejudiced by the action of the court upon this charge.

Finally, it is objected that the court imposed upon the railway company a higher degree of care than the law justifies in avoiding collisions with vehicles upon its track. The court was requested to give the following instruction:

"While it is the duty of the company to exercise ordinary care and diligence to avoid collision and other accidents, the rule does not dispense with care and prudence on the part of persons who use the street in common with the company. I do not give this instruction exactly in the form in which it is asked, but I do give it subtantially. It is not merely ordinary care that this street railway company should exercise. In the movement

Railway Co. v. Whitcomb.

of an electric car or of a horse car on the streets more care is required than in driving a wagon, because it is a larger vehicle and moves more rapidly. It is of greater weight and momentum, and it cannot be stopped so easily. When it comes to moving an electric car, which weighs, according to the testimony, about eight tons, and is impelled by a motor of sixty horse power-thirty times the power applied to an ordinary horse car, and moving it more rapidly, with its greater weight and momentum (the testimony in this case is that a car, when in full speed, can be stopped in about three lengths of the car; that is, about ninety feet)-all these circumstances increase correspondingly the requirements as to the management of the car, It is the duty of the company to exercise proper care, for the reasons that I have given."

We think this charge correctly stated the law. The court was evidently attempting to avoid giving the impression to the jury that a company operating a machine of the great force and power of an electric car upon a street upon which other vehicles might lawfully travel was not required to use any more care in this operation than the driver of an ordinary wagon or the driver of an ordinary street car. He, therefore, very properly called the attention of the jury to the distinction between the requirements in the one case and in the other. It is true, speaking strictly and technically, that one is only required to use the care in the manipulation of any machine with reference to the rights of others which the ordinarily prudent man would use. But the standard of ordinary care is not absolute; it varies according to the circumstances, and according to the possible or probable danger which may arise from the use of the instrument. The court did not tell the jury that the street railway company was obliged to use the highest degree of care, but only a proper degree of care, considering the possibility of danger from the instrument it was operating. This, we think, is quite in

Railway Co. v. Whitcomb.

accordance with the ruling of the Supreme Court in the case of Railway Co. v. McDaniels, 107 U. S. 454, where it was held that the charge to the jury that the railway company, in the selection of its night telegraph operators, was under a duty to its other employes to exercise proper and great care to select competent persons for that branch of the service, was a correct statement of the law to the jury, because of the very delicate and responsible duties which telegraph operators were obliged to discharge. So here. Accidents from electric street railways are numerous. A speed of 10 miles an hour in a traveled street, with a car weighing from six to eight tons, and having such momentum that it cannot be stopped short of 90 feet when running at full speed, certainly imposes upon those who choose to operate it the duty of great care to avoid collisions with persons who are lawfully upon a street; and while it is true that such care, owing to the circumstances, would be but ordinary care, the expression "ordinary care" is one which might give the jury a wrong impression in such a case, and the court properly exercised its discretion to couch its langauge in a form legally equivalent and less likely to mislead.

Finally, exception was taken to that part of the charge where the court told the jury that even though the plaintiff were negligent, if the defendant, having observed the neligence, might have avoided its effect by due care, the defendant was liable. This charge was not only good law, but was especially applicable to the circumstances of this case, because there was much evidence tending to show that the injury to plaintiff's person occurred through the negligence of the motorman of the defendant after the first collision had taken place, from an unnecessary and illadvised backing of the car when the plaintiff was in a helpless position, but still remained uninjured. The principle has been several times announced in this court. Mississippi Valley Co. v. Howe, 6 U. S. Ap. 172; Louisville

Railway Co. v. Whitcomb.

& N. R. Co. v. East Tennessee, V. & G. R. R., 9 C. C. A. 314 (60 Fed. Rep. 993); Coasting Co. v. Tolson, 139 U. S. 551; Railroad Co. v. Kassen, 49 Ohio St. 230.

On the whole case, we find no error, and we affirm the judgment, with costs.

NOTE 1.-In the foregoing forty cases are considered the relative rights and duties of electric street railway companies and of the public using the streets. The following is a partial abstract of the principles decided in them :

NATURE OF EASEMENT:

An electric railway company has no exclusive right to use that part of the street occupied by its tracks. Cincinnati St. Ry. Co. v. Whitcomb, ante, p. 602; Houston City St. Ry. Co. v. Woodlock, ante, p. 580; San Antonio St. Ry. Co. v. Mechler, ante, p. 585. Nor has it such proprietary right as limits the right of the general public to use the same part of the streets. Omaha St. Ry. Co. v. Duvall, ante, p. 502. Has paramount right, except at crossing. Houston City Ry. Co. v. Woodlock, ante, p. 580; though if court instruct jury that a traveler upon the track ahead of a car is bound to get away and not obstruct its passage, it need not add that the car has a "paramount " right. Cincinnati St. Ry. Co. v. Whitcomb, ante, p. 602. At crossing, neither trolley car nor traveler has rights superior to the other. Young v. Atlantic Ave. Ry. Co., ante, p. 530.

DUTY OF COMPANY:

Is to take ordinary care to avoid injury to travelers, but such care is proportioned to probability of danger, and greater in managing electric cars than ordinary vehicles. Cincinnati St. Ry. Co. v. Whitcomb, ante, p. 602. To take ordinary care to avoid collision with vehicles or pedestrians. San Antonio St. Ry. Co. v. Mechler, ante, p. 585. To watch for pedestrians, both adults and children. Jones v. Brooklyn Heights R. Co., ante, p. 533. To exercise constant watchfulness and care for persons approaching the track. Barnes v. Shreveport City R. Co., ante, p. 452. Especially in a principal street of a city. Dallas, &c., Ry. Co. v. Elliott, ante, p. 571. To have cars under control when approaching crossing, where pedestrians have right to assume that car will slow up. Young v. Atlantic Ave. R. Co., ante, p. 530. Motorman seeing person working on pavement between rails is apparently unaware of approach of car, must take every precaution to avoid injuring him. Houston City Ry. Co. v. Woodlock, ante, p. 580. Seeing child of tender years on track, must exercise highest degree of care. San Antonio St. Ry. Co. v. Mechler, ante, p. 585. Although traveler negligent, still company bound to be careful to avoid injury, and recovery not barred by contributory negligence if motorman, knowing the peril and being unable to avoid it, failed to do so. Cincinnati St. Ry. Co. v. Whitcomb, ante, p. 602; Montgomery v. Lansing

Railway Co. v. Whitcomb.

City Elec. Ry. Co., ante, p. 471; Orr v. Cedar Rapids, &c., Ry. Co., ante, p. 445. Above rule held not to apply in a given case. Fritz v. Detroit, &e., Ry. Co., ante, p. 480. Not bound as matter of law to stop or slow up on seeing person walking on the track ahead of a car. Houston City Ry. Co. v. Farrell, ante, p. 576. Doubtful if bound to sound gong to warn vehicles, except when approaching crossing. Fritz v. Detroit, &c., Ry. Co., ante, p. 480. Motorman may, to some extent, assume that person standing on track in front of car will hear gong and get off. Doyle v. West End St. Ry. Co., ante, p. 459. Company liable if motorman should have seen peril in time to avoid injury from fright to horse. Citizens St. R. Co. v. Lowe, ante, p 436. Not liable for frightening horse, unless negligent after discerning that there was danger. Kankakee Eicc. Ry. Co. v. Lade, ante, p. 431. Not liable for killing child, who ran from behind a wagon, upon track, only five feet in front of car, motorman doing his utmost to stop. Ogier v. Albany Ry. Co., ante, p. 545. Not bound to stop car before reaching crossing, for motorman and conductor to look and listen. Savannah, &c., Ry. Co. v. Beasley, ante, p. 429. Negligence per se for motorman to run car fifty feet in city street in day time, paying no attention ahead, and so running over child. Dowd v. Brooklyn Heights R. Co., ante, p. 517. Running electric street cars at speed forbidden by ordinance, if unexplained or unexcused, is conclusive evidence of negligence. Riley v. Salt Lake Rapid Transit Co., ante, p. 594.

DUTY OF TRAVELER:

Before crossing track:-Bound to use care of reasonably prudent person under the circumstances. Connelly v. Trenton, &c., St. Ry. Co., ante, p. 510. Less care required crossing electric than steam railway. Orr v. Cedar Rapids, &c., Ry. Co., ante, p. 445. Locality important circumstance; strict rule must be relaxed in crowded streets. Kelly v. Brooklyn Heights R. Co., ante, p. 543. Have right to assume usual safeguards will be employed by those in charge of the car. Dallas, &c., Ry. Co. v. Elliott, ante, p. 571. Not bound to wait for car to pass when so far away that with reasonable care he should be able to cross in safety. Patterson v. Townsend, ante, p. 442. Should look both ways for cars. Curry v. Union Elec. Ry. Co., ante, p. 541. But not required in same degree as to electric as it is to steam cars. Holmgren v. St. Paul City Ry. Co., ante, p. 499. Bound to look and listen. Little v. Superior, &c., Ry. Co., ante, p. 599. Not bound to stop also, in absence of special circumstances. Cincinnati St. Ry. Co. v. Whitcomb, ante. p. 602.

Held contributory negligence per se:-To drive on to track so near approaching car that motorman cannot prevent collision. Kennedy v. St. Paul City Ry. Co., ante, p. 492. To attempt to cross, miscalculating distance. Clancy v. Troy & Lansingburgh R. Co., ante, p. 551. For girl fourteen years old to run behind car on one on to parallel track without looking for approaching car. Thompson v. Buffalo Ry. Co., ante. p. 535. To stand watching car approaching at a distance, and jump in frout of it when near. Jajer v. Coney Island. &c., Ry. Co., ante, p. 539. To drive