Hays v. Tacoma Ry. & Power Co.

• Decision Date: 14 September 1900
• Citation: 106 F. 48
• Court: United States Circuit Court, District of Washington
• Parties: HAYS v. TACOMA RY. & POWER CO.

106 F. 48

HAYS v. TACOMA RY. & POWER CO.

United States Circuit Court, D. Washington, Western Division.

September 14, 1900

Governor Teats, for plaintiff.

Crowley & Grosscup and Fogg & Fogg, for defendant.

GILBERT District Judge.

The defendant moves for a new trial in a case in which the plaintiff obtained a verdict of the jury for damages for injuries alleged to have been sustained by reason of the defendant's negligence. The plaintiff was driving a team of horses with a covered wagon, going southerly, on C street in the city of Tacoma, on which street was a single track for electric cars, which ran in the direction in which the plaintiff was going. His horses were unaccustomed to the street cars, and he wished to avoid meeting them. He stopped his team at the southwest corner of C and Thirteenth streets and shortly afterwards proceeded on his way, intending to cross the street-railway track half a block further on, and enter a livery stable on the other side of the street. Before proceeding he turned and looked up the street, of which he had an uninterrupted view for about 1,400 feet, to see if an electric car was approaching from behind. His testimony was that no car was in sight, and that he thereupon started his team in the direction in which he was going, and proceeded southward a distance of 400 feet, or a little past the middle of the block, when, without again looking back to see if a car was then approaching, he turned abruptly to the left, to cross the railroad track and drive into a livery stable. While crossing the track he was struck by an electric car wagon, and carrying it on ahead of the car a distance of 150 feet. An ordinance of the city of Tacoma prohibited the car from going at a higher rate of speed than 12 miles an hour. There was evidence tending to show that the car was going at double that rate of speed, and that if its speed had conformed to the ordinance no collision could have occurred. The defendant moved to instruct the jury to return a verdict for the defendant on the ground that the plaintiff's contributory negligence was such as to preclude his right to recover damages. It was argued, and it is now urged as ground for a new trial, that the plaintiff was negligent in not looking for an approaching car immediately before crossing the railway track, and that he had not the right to rely upon the fact that no car was in sight at the time when he looked, when he was at a point 400 feet above the point of crossing, or to rely upon the assumption that the defendant in managing its cars would comply with the requirements of the city ordinance, or would run its cars at no greater speed than the ordinance permitted, and that he was bound to reckon with the danger that cars might run at a higher rate of speed. In short, the defendant asserts the hard and fast rule that one crossing such a street-car track must under all circumstances look at the immediate time of crossing, and that if he fails to do so he assumes all the risk of collision in crossing, no matter what may be the negligence of the street-railway company. Certain of the authorities, it is true, sustain this position. Others, and it seems to me with the better reason incline to the view that the rule of looking immediately before crossing is not a fixed one, but that if one looks at such a time prior to crossing, and takes such observations as will justify him in assuming that no collision can occur provided the cars are running at a lawful rate of speed, he is not necessarily guilty of contributory negligence if he fails to take further precaution, or if he proceeds on his way relying upon the presumption that the street-car company will comply with the law. O'Neil v. Railroad Co., 129 N.Y. 125, 29 N.E. 84; Cooke v. Traction Co. (Md.) 31 A. 327; Benjamin v. Railway Co. (Mass.) 35 N.E. 95; Driscoll v. Railway Co. (Mass.) 34 N.E. 171; Railway Co. v. Albright (Ind. App.) 42 N.E. 238; Robbins v. Railway Co. (Mass.) 42 N.E. 334; Schilling v. Railway Co. (Sup.) 62 N.Y.S. 403; Shea v. Railway Co. (Minn.) 52 N.W. 902; Railway Co. v. Duvall (Neb.) 58 N.W. 531; Hicks v. Railway Co. (Mo. Sup.) 27 S.W. 542, 25 L.R.A. 508; Rapid-Transit Co. v. Seigrist (Tenn. Sup.) 33 S.W. 920; Laufer v. Traction Co. (Conn.) 37 A. 379, 37 L.R.A. 533; Railway Co. v. Whitcomb, 14 C.C.A. 183, 66 F. 915. In Cooke v. Traction Co., the court of appeals of Maryland said of a case similar to the case at bar:

'There is, to begin with, no possible analogy between a case growing out of an injury caused by a street car to a person rightfully upon the public thoroughfare, and a case involving an injury inflicted by a steam-railroad train on a trespasser wrongfully upon the latter company's right of way. * * * He had a right to drive along the streets, and, after he had looked, and had seen no car approaching on Fayette street, he had the further right to cross the tracks, and to assume that he would not be recklessly run down.'

In Robbins v. Railway Co., the supreme judicial court of Massachusetts, by Field, C.J., said:

'The decisions of this court show that a distinction has been taken with respect to the duty to look and listen when crossing the tracks of a steam railroad where a railroad train has the exclusive right of way, and when crossing the tracks of a street-railway company in a public street, where the cars have not an exclusive right of way, but are run in the street in common with other vehicles and with travelers. The fact that the power used by the street-railway company is electricity, instead of that of horses, has not been deemed by the court sufficient to make exactly applicable the rule of law which has been laid down concerning the crossing of the tracks of a steam railroad.'

In Schilling v. Railway Co., the plaintiff, who was driving his wagon on the street in the direction in which the car was going, had taken the precaution to look out for the approaching car upon entering on the tracks. The court said:

'It cannot be said, as a matter of law, that he was guilty of contributory negligence in not looking behind him during the time that it would

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