Acton v. Fargo & Moorhead St. Ry. Co.

• Decision Date: 30 December 1910
• Court: North Dakota Supreme Court
• Parties: ACTON v. FARGO & MOORHEAD ST. RY. CO.

20 N.D. 434

129 N.W. 225

ACTON

v.FARGO & MOORHEAD ST. RY. CO.

Supreme Court of North Dakota.

Sept. 24, 1910.

Rehearing Denied Dec. 30, 1910.

Syllabus by the Court.

Where, as in this case, the verdict is supported by substantial evidence, and the trial court has declined to disturb such verdict when challenged for alleged insufficiency of the evidence, such ruling will not be reversed in this court.

A traveler passing along a city street has a right to use every part of it, regardless of whether there is a street car track in it or not. In view of the inability of the cars to leave their tracks, it is the duty of free vehicles not to obstruct them unnecessarily, and to turn to one side when they meet them; but, subject to that, and to the respective powers of the two, a car and a wagon owe reciprocal duties to use reasonable care on each side to avoid a collision.

Street cars have precedence, necessarily, in the portion of the way designated for their use. This superior right must be exercised, however, with proper caution and a due regard for the rights of others; and the fact that it has a prescribed route does not alter the duty of a street railway company to the public, who have the right to travel upon its track until they are overtaken by its cars.

The court charged the jury as follows: “I charge you, gentlemen of the jury, as a mattter of law, that even if you find from a preponderance of the evidence that the plaintiff in this action was guilty of contributory negligence in going upon the defendant's track, under all the circumstances of the case, that nevertheless, if the defendant or its employés in charge of the car were aware, or should by the exercise of reasonable diligence and care have become aware, of the dangerous position of the plaintiff, in time to have, by the exercise of reasonable diligence and care, avoided the collision with the buggy of the plaintiff, that the prior negligence of the plaintiff would not bar his right to recover in this action.” This instruction states the law correctly.

The ground upon which a plaintiff may recover, notwithstanding his own negligence, is that the defendant after becoming aware of the danger to which plaintiff was exposed, failed to use a proper degree of care to avoid injuring him.

It is not necessarily negligent to drive a vehicle along a street railway track in the direction in which cars travel upon the track, nor in the direction from which the cars will approach. But when so driving the driver should keep a lookout for cars approaching in the opposite direction, and he should use reasonable diligence, to ascertain the approach of cars from the rear, but he is not, as a matter of law, required to keep a constant watch to the rear to discover approaching cars.

Unless the negligence of the plaintiff proximately contributes to the injury it does not constitute contributory negligence which bars a recovery. The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it.

While it is the duty of vehicles moving along street railway tracks to leave the tracks on the approach of cars so as not to obstruct their passage, still those in charge of cars must use reasonable diligence to prevent collisions, and the company is liable for injury resulting from their failure to do so.

Where a street car is approaching from the rear a vehicle moving along the track, the person operating the car has not the right to proceed without regard to the presence of the vehicle, in anticipation that the vehicle will leave the track in time to give free passage to the car.

In the case of a trolley car approaching another vehicle directly in a line with its progress, and a possible obstacle in the way, a proper regard for the rights of others requires that the car be reduced to such control that it may be brought to a standstill if necessary.

A street railway company is liable for injuries sustained by a collision between a vehicle and a car, where the employés in charge of the car by the exercise of ordinary care could have avoided the accident, notwithstanding the negligenceof the driver in the first instance in placing himself in a situation of peril.

Such timely and reasonable warning of the approach of a street car must be given as will enable others in the exercise of due care to avoid injury from it.

If those in charge of a street car discover, or should by the exercise of ordinary care have discovered, plaintiff's peril, while driving a wagon on the track in time to have avoided a collision, and did not do so, plaintiff's negligence in failing to look back for an approaching car would not preclude his recovery. Whether defendant's motorman in charge of a street car which collided with plaintiff's vehicle made proper efforts to avoid the collision if he saw, or by the exercise of ordinary care could have seen, plaintiff's peril, held, under the facts, to be for the jury.

One driving along the street railway track in daylight has the right to suppose that if a car is approaching from the rear a proper lookout is maintained, and that ordinary care will be exercised to avoid injuring him.

The jury awarded plaintiff $2,450 damages without interest. Held not excessive.

An instruction to the jury that the answers to the separate questions must be of such a nature that they will fully support the general verdict held not error.

The jury having found that the motorman of defendant did not exercise ordinary care and reasonable diligence in stopping his car and preventing the accident after he saw, or might in the exercise of reasonable diligence have seen, that plaintiff was in a position of danger, for reasons stated in the opinion the appellant was not prejudiced by the instructions complained of.

A judgment will not be reversed because of an erroneous instruction when it affirmatively appears from answers to interrogatories that such instruction did not influence the jury in reaching its verdict.

The court refused to charge the jury that though the motorman saw the plaintiff driving along and on the track, and (if he was driving thereon) he had a right to assume that the plaintiff would exercise ordinary care to observe the approach of the car and would get out of danger before the car reached him, and that the motorman is not required to check his car (if such car is running at an ordinary rate of speed) until he has reasonable cause to believe that there is actual danger of a collision, held not error, under the circumstances of this case.

The special findings made by the jury are sufficient to sustain the general verdict. If the questions not answered, or where the answers are not proved, were all answered favorably to appellant, the general verdict would still be consistent with the special findings.

Appeal from District Court, Cass County, Pollock, Judge.

Action by William Acton against the Fargo & Moorhead Street Railway Company. From a judgment for plaintiff, and an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appeals. Affirmed.

Stambaugh & Fowler, for appellant. Barnett & Richardson, for respondent.

CARMODY, J.

This is an action for damages for personal injuries, inflicted upon plaintiff by one of defendant's street cars on October 15, 1907. A trial was had in the district court, and a verdict rendered in favor of the plaintiff. Thereafter the defendant moved for judgment notwithstanding the verdict, or for a new trial, both of which motions were denied, and judgment entered on the verdict. From the order denying such motions, and from the judgment, defendant appeals to this court. The appellant is the owner of a street railway system in the city of Fargo. A portion of its track is laid upon Broadway, which runs north and south. On the day of the accident, the respondent was driving north on the west side of appellant's track, on Broadway. He was driving a double team of work horses attached to a single buggy, without any top. He started to drive north from a point located on the west side of Broadway about midway between First and Second avenues. Before starting north, he looked south but saw no car. He drove north on the west side of the track, at a distance of about 5 or 6 feet from the track, until he reached a point a little north of the center of the block between Third and Fourth avenues, and 60 or 70 feet south of where he was struck. At this point he noticed a team facing him, standing on the west side of the track, attached to a heavy lumber wagon, at a distance of about 6 feet from the west rail of the track. When he saw this team, he looked back over his shoulder for a distance of about 100 feet, and then drove upon the track so that his buggy was astride the west rail. He drove in this position, without looking back for an approaching car, until he reached the point where this team was standing, when he was struck by a car approaching from the rear, and was thrown from his buggy. Just prior to the accident, plaintiff's team was traveling three miles per hour, while appellant's car was traveling about eight miles per hour. The motorman sounded the gong, and respondent heard the sound just about the time he was struck by the car. The accident happened at about 11 o'clock in the morning. It is undisputed that there is a clear view of the place of the accident for several hundred feet south. The car in question, under conditions similar to those at bar, could be stopped in between 20 and 25 feet. The car was stopped between 20 and 30 feet north of the point of the accident.

In addition to the general verdict, the court submitted 37 questions to the jury. Appellant assigns 18 errors, which are divided into four subdivisions: (1) The evidence fails to show that the defendant was guilty of negligence. (2) The evidence shows that the plaintiff was guilty of such contributory negligence as to prevent...