Ashley v. Kanawha Valley Traction Co.
| Decision Date | 23 October 1906 |
| Citation | 55 S.E. 1016,60 W.Va. 306 |
| Parties | ASHLEY v. KANAWHA VALLEY TRACTION CO. |
| Court | West Virginia Supreme Court |
Submitted March 7, 1906.
Rehearing Denied Jan. 10, 1907.
Syllabus by the Court.
A street railroad company has an equal right with the public to the use of streets at street crossings. Neither has a superior right to the other.
It is negligence for a street car company to operate its cars at such a rate of speed as not to have them under control and to be able to stop them readily as they approach intersecting streets, in case it may be necessary, to avoid a collision or prevent an accident.
A street car company should give proper warning of the approach of its cars at street crossings. For a failure to do so it will be guilty of negligence.
More care is required in operating street cars at street intersections than at other points, and, if a street car company at such intersections runs its cars at an excessive and unusual rate of speed, it will be guilty of negligence.
It is not contributory negligence for one to attempt to cross a street railway track in front of an approaching car, if, in doing so, he exercises that judgment and care which a reasonably prudent and careful person would have exercised under like circumstances.
A municipal corporation may, within reasonable limits, regulate and prescribe the speed at which street cars may be operated over its streets, and, when it has done so by valid ordinance, it will be negligence per se for a street car company to run its cars at a speed exceeding that fixed by the ordinance.
Where by valid municipal ordinance, street cars are required to be equipped with fenders of an approved make, it is negligence per se to operate such cars without such equipment.
Error to Circuit Court, Kanawha County.
Action by Allie E. Ashley, administratrix, against the Kanawha Valley Traction Company. Judgment for defendant, and plaintiff brings error. Reversed.
Littlepage Cato & Bledsoe, John Baker White, and Clarence Burdette, for plaintiff in error. Chilton, MacCorkle & Chilton and T. R. English, Jr. for defendant in error.
This writ of error is to a judgment of the circuit court of Kanawha county, rendered in an action brought by Allie E. Ashley, administratrix of John J. Ashley, deceased, against the Kanawha Valley Traction Company, to recover damages for the alleged wrongful and negligent killing of said John J. Ashley by the defendant company. The circuit court excluded all plaintiff's evidence, directed a verdict for the defendant, and entered judgment dismissing the action. The question to be determined in reviewing the judgment of the circuit court is whether or not the defendant is chargeable with such negligence as directly caused the injury from which Ashley died, and, if so, was Ashley guilty of such contributory negligence as would bar plaintiff's right to recover?
On the 6th day of October, 1902, the defendant was the owner and operator of a street railroad in the city of Charleston, and on that day the deceased was standing at the southeast corner of Virginia and Court street, in said city, engaged in conversation with one George Warner. At this time a car of the defendant company was going east on Virginia street, in the direction of Ashley, and when it had reached a point some distance from where he was standing he mounted his bicycle and started across the street in front of the approaching car. When nearly across the car track the rear wheel of his bicycle seemed to hang momentarily upon the rail farthest from where he started, and while in this position the car struck the rear wheel of the bicycle, and as a result the rider was thrown against the curbstone, and received injuries from which he died shortly afterwards. The place of the accident is where Virginia and Court streets cross, and Ashley was traveling in a northerly direction on Court street, crossing Virginia street, over which the defendant's car track ran. It is not clear from the record just where the car was at the time Ashley mounted his bicycle and started across the track, but we think it can be safely said that it was at least 200 feet west of the point where the accident occurred. The car was running at a high rate of speed--estimated by the witnesses to have been from 15 to 30 miles an hour--one witness estimating it from 15 to 17 miles, another from 25 to 30 miles, and two other witnesses from 18 to 25 miles--the lowest estimate being 15 miles and the highest 30 miles an hour. The speed of the car was not slackened until after it struck the bicycle, after which it ran about 90 feet before it was stopped. One of the witnesses stated in reply to an inquiry as to whether or not, from the time he first saw the car until it struck Ashley, there was any slackening of speed: Another witness stated that the car was running unusually fast at this time, and also stated that at this point the cars usually ran about 10 or 12 miles an hour. The gong was not sounded, and no alarm whatsoever was given until the car was within about 30 feet of Ashley, and this was after it had passed the western line of Court street. At the time Ashley was attempting to cross Virginia street there was also a wagon crossing it, which was between him and the street car. The wagon crossed the street car track and had gone beyond it about 10 or 15 feet when the car reached the point at which it had crossed. It also appears at the time of the accident there was an ordinance of the city of Charleston in force, limiting the speed of street cars within the city limits and within the business portion of the city to 8 miles, and in the suburban districts to 15 miles, an hour. There was also another ordinance of said city, making it unlawful for cars to be run or operated therein without fenders of the most approved make. The car in use at the time of the injury here complained of was not equipped with a fender of any character whatsoever.
In dealing with the questions presented, we will first do so independently of the ordinance of the city limiting the speed of cars and requiring them to be equipped with fenders. The place where the accident occurred being a street crossing, we approach a solution of the questions involved with the understanding that at this point the rights of the parties were equal. A street railway company operating its cars over the streets of a town or city has at street crossings no higher or paramount right of way to that of pedestrians or other users of such streets, but its right to the use of streets at street crossings, where the car tracks cross other streets than the one they run along, is precisely the same as that of pedestrians or vehicles crossing its tracks there. Neither has a superior right to the other. The right of each must be exercised in a reasonable and careful manner, having due regard for the rights of others, and so as not to unreasonably obstruct or interfere with the right of passage or proper use of the streets. The car has the right to cross, and must cross, the street, and the pedestrian or traveler has the right to cross, and must cross, the railroad track. The rule is somewhat different at points other than street intersections or crossings, but as this accident occurred at a crossing, it is not necessary to refer to, or point out, such difference. Bass' Adm'r v. Norfolk Ry. & Light Co., 100 Va. 1, 40 S.E. 100; Richmond, etc., Ry. Co. v. Garthright, 92 Va. 627, 24 S.E. 267, 32 L.R.A. 220, 53 Am.St.Rep. 839; Solomon v. Buffalo Ry. Co. (Sup.) 89 N.Y.S. 99; Thompson on Negligence, § 1399; Nellis, Street Railways, § 14. The care required to be used by the defendant at street intersections must be such as is commensurate with the increased dangers arising from the travel at such crossings. The defendant, operating dangerous machinery over the streets of a city, must know, and is bound in law to know, that others have an equal right to the use of the streets and may be upon them. Where a pedestrian or traveler is approaching a street crossing toward which a car is approaching, the duty to stop and avoid a collision is on the party who can most easily and readily adjust himself to the exigencies of the case; and as to whether or not the defendant used that degree of care chargeable to it depends upon all the facts and circumstances. There can be no rule of general application defining the degree of care required to be used by a street railway company in operating its cars over the public streets of a city, or fixing the rate at which such cars should be run, because of the varied facts and circumstances applicable to each particular case; and in every instance the true inquiry is, was the car, at the time of the injury, being operated in a prudent and careful manner, taking into consideration the place of its operation, the various uses of the street, and the amount and kind of usual travel, and the other facts and circumstances surrounding the case? More care is required to be exercised at street intersections than at other points, because the company may expect pedestrians or other users of the streets to be constantly crossing its track, as they have the lawful right to do, and, therefore, the car should approach the crossing in a careful and cautious manner, so as to avoid injury to others who are using the streets in a proper and careful way. In the case of Richmond, etc., Ry. Co. v. Garthright, supra, it was held that it was gross negligence in a street railway company to so overcrowd and load down its cars with passengers beyond any reasonable or proper limit...
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