112 F. 484 (6th Cir. 1901), 979, Robinson v. Louisville Ry. Co.
| Date | 17 December 1901 |
| Docket Number | 979. |
| Citation | 112 F. 484 |
| Parties | ROBINSON v. LOUISVILLE RY. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Page 484
Bennett H. Young and Marion W. Ripy, for plaintiff in error.
Fairleigh, Straus & Eagles (David W. Fairleigh, of counsel), for defendant in error.
Page 484
The Louisville Railway Company operates a street railroad on Portland avenue, a much-traveled street, in the city of Louisville, where the plaintiff was riding on the back of a heavily loaded wagon, being driven in an easterly direction by one Green, his employer, in the track of the defendant, on
Page 485
the evening of September 22, 1899, when an electric car going in the same direction collided with the wagon, throwing the plaintiff to the ground and injuring him. At Twenty-Third street, and within a few feet of where the accident occurred, was an electric street light. The plaintiff saw the approaching car some two blocks away, and gave notice to the driver, who turned his horses out of the track, but before the wagon was clear the car struck it, overturning the wagon and injuring the plaintiff. The motorman testified that the car was not going more than three or four miles an hour, and that it was so dark he did not see the wagon until he was within about 30 feet of it, when he was unable to stop the car before the collision. Witnesses testified that they saw the wagon 125 or 200 feet away, and that there was no obstruction to the view for several blocks. Two witnesses testified that the car was going at a high rate of speed, but the court would not allow them to tell what the speed was, because they were not shown to be experts.
The court instructed the jury that the defendant's negligence, for which a recovery could be had, must be limited to the time after which the motorman discovered the wagon on the track, in the following words: 'Now, if you believe from the evidence in the case, from a preponderance of the testimony, that the plaintiff was occupying that track in that wagon, in the way that he has himself described, and that the street car company's servants in operating the car could, after they discovered the wagon upon the track by the use of extraordinary efforts, have stopped the car in time to have prevented the injury, it was the duty of the railroad company to do it. It was the duty of the railroad company, as soon as they saw the wagon, to make every effort a man could fairly make to prevent the collision, so that in that point of view there might have been, though it is for you to say, something done by the street car company which a prudent man would have done; that is to say, the servants of the corporation might not have exerted all of the efforts they could to avoid the accident. * * * If you believe from the evidence that from the negligence of the street car company that the collision occurred, that is, if they could have seen the wagon upon the track far enough ahead to stop, it would have been their duty to do it; but, if you believe from the evidence that the plaintiff in this case saw the car approaching in time to have turned off the track to which he had at that time no right equal to that of the street car company, it was the duty of the plaintiff to have done so. * * * If he were thus knocked down and injured, he is not entitled to recover against the street car company at all, unless, as I said before, after the street car company did, in fact, discover him upon the track, they could, by the use of every effort that was required of...
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