Beerman v. Union R. Co.

• Decision Date: 02 July 1902
• Citation: 52 A. 1090,24 R.I. 275
• Parties: BEERMAN v. UNION R. CO.
• Court: Rhode Island Supreme Court

52 A. 1090

24 R.I. 275

BEERMAN

v. UNION R. CO.

Supreme Court of Rhode Island.

July 2, 1902.

Action by Joseph Beerman against the Union Railroad Company. Heard on petition of the plaintiff for new trial after a verdict for defendant. Petition denied.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

James A. Williams, for complainants.

David S. Baker, for defendant.

ROGERS, J. This is the plaintiff's petition for a new trial after a nonsuit in an action on the case for negligence growing out of a collision between the plaintiff's carriage and the defendant's electric car at the corner of Camp and Lippitt streets, in the city of Providence. The evidence showed that on July 28, 1899, the plaintiff lived on Lippitt street, a little west of Camp street, ami but a short distance from the place of the accident, with which location and the running of the defendant's cars he was thoroughly acquainted, having been in the habit of driving over the same at frequent intervals; that on said lastmentioned date, between 6 and 7 o'clock in the evening, he was on his way home from Pawtucket in an open two-seated carriage, containing his wife and a child on the rear seat, and a gentleman friend, a child, and himself on the front seat; that he was driving down Lippitt street, and approaching Camp street from the eastward, said streets running practically at right angles with one another; that his horse was a big, heavy one, very gentle, and quite old, as he was "pretty old" when plaintiff bought him six years before the accident; that he was driving—in his own words—"not very fast, just simply jogging along, trotting slowly; that is the only way that horse can go;" that he was holding the reins very tight going down hill, as it is a descending, but not a steep, grade there; that he occupied the right side of the front seat, and the carriage was on the right side of Lippitt street, as he approached from the east towards Camp street; that on the right or northeast corner of Lippitt and Camp streets was a high, close board fence on the street line, which would obscure his view of a car, if one should be coming along the Camp street track from the northward, until he got near enough to Camp street to look by the fence; that a house stood on the street line on the left-hand side or southeast corner; that the east sidewalk on Camp street was 12 feet wide, and that it was 12 feet from the curbstone to the east rail of the track. The plaintiff in his direct examination described the occurrence of the accident substantially in this wise: "I was driving along on Lippitt street on the east side of Camp street, and as I reached the corner of Lippitt and Camp streets I turned my head to my right just to look out for the car up Camp street. At that time my horse was very close to the track. In the meantime I looked to the left, and there was no bell ringing; I never heard it. At that time the horse got struck by an electric car, which ran very fast, and dragged the horse along, throwing us out. That is as far as I remember about the accident." It also appeared that when the plaintiff first saw the car it must have been about 30 feet off and that the horse was probably two feet from the track; that after he saw the car he jerked the reins up, in order to draw the horse back and avoid an accident; that the car was running at such a speed he did not have enough time to cross the track, and so he pulled his horse back, but it was too late. In cross-examination the plaintiff swore as follows: "Q. When you got to Lippitt street, you were coming down there, you say, on a jog trot? A. Yes, sir. Q. You trotted all the way down Lippitt street until the horse was hit? A. Yes, sir. Q. When you got down to Lippitt street you kept going right along, and you looked up over the fence when you went along, and saw that no car was coming down on the right-hand side? A. I didn't look over the fence; I was on the side of the fence. Q. I don't understand you. You had got down so you looked past the fence? A. No; not past the fence, I looked down the street. Q. You didn't look over the fence? A. No. Q. You waited until you got by the fence, and turned your head? A. Yes, sir. Q. And immediately you turned and looked up to the left you were hit,—when you looked to the left, the car was upon you. I understand you to say the accident was inevitable then, and neither of you could get away; that is right? A. I guess you heard my statement before. Q. That is the statement you made before, is it not? A. Yes, sir. Q. Let me repeat that. When you got by the corner of the fence, you were quite a way by the corner of the fence when you looked up? A. I was between the fence and the track. Q. When you looked up? A. Yes, sir. Q. Your horse was going all the time when you looked to the right, and didn't see the car coming down? A. No, sir. Q. You looked to the left then, and your horse was going all the time? A. No; when I looked to the right the horse was going, but when I looked to the left I jerked him up. Q. When you looked to the right your horse was going, and when you looked to the left the car was upon you? A. Yes, sir. Q. How near to you? A. Very close. Q. So close an accident was inevitable? A. Yes, sir. * * * Q. In other words, you were in a position where you had got to be hit, wasn't it, no doubt about that? A. In a position I had to be hit. In that position I was. Q. You were; a turn in either direction would have hit you, you couldn't turn to the right or to the left? A. No, sir. Q. Nothing for you to do but to be hit under those circumstances? A. Yes, sir. * * * Q. When you first discovered the car, where was your horse's head? A. Close to the track. Q. How close? A. About two feet Q. He was trotting? A. He was going slow then. Q. Going right straight along, you say, until you saw the car? A. Yes, sir. Q. Then you held him in? A. Yes, sir. Q. He was going the same rate right straight along until you saw the car and held him in? A. Yes, sir. Q. Where was your horse hit,—where? A. Right on the hip." Mrs. Beerman testified that the car was about half a yard away from the wagon when she first saw it. When the plaintiff rested his case the court nonsuited him on the defendant's motion, and the question is, was the nonsuit well granted? As the ordinances of the city of Providence provide that every person having the control of the speed of a street railway car shall keep a vigilant watch for all teams, carriages, and persons,—especially children,—either on the track, or moving in the direction of the track, and shall strike a bell several times in quick succession on approaching any such team, carriage, or person, or any cross or intersecting street (Ord. of Prov. 1899, c. 43, § 1, par. iv, p. 125); and, as the evidence tended to show that no bell was struck, we shall assume that the defendant was guilty of negligence. So the question arises, was the plaintiff guilty of contributory negligence? Inasmuch as this case involves the relative rights and duties of those entitled to the use and enjoyment of the public streets, it is a matter of importance which user is entitled to precedence of use at a given time, where two desire to use the same place at the same time. In the case at bar, a one-horse carriage, going at a slow pace, so slow that it could be stopped within a distance of a very few feet, and a heavy electric street car, authorized to go over the street in question at a speed not faster than nine miles an hour, collide when approaching one another through intersecting streets. Both car and carriage are entitled to use the streets, but the different purposes for which they are designed place them under very unequal conditions. The car is designed to serve a quasi public use as a carrier of passengers in large numbers per car, and for that reason it is necessarily large and cumbrous. It is also allowed, in serving the public requirements, to go at a high speed, and hence it is permitted to travel in grooves or on tracks to aid its speed by lessening friction, and affording a smooth, easy path. Its speed is allowed to greatly exceed that of an ordinary carriage, as by law it may traverse Camp street at a rate not faster than nine miles an hour (Ord. of Prov. 1899, c. 43, § 1, par. 1, p. 125), whereas an ordinary carriage is not allowed by law to be driven faster than a common traveling pace (Pub. Laws, Nov. 26, 1901, c. 925, § 1). Its running in grooves or on a track imposes certain limitations upon it that an ordinary carriage does not labor under, viz., its being confined to the line of the track, and not being able to depart therefrom.

1. A railroad track, whether steam or electric, is a place of danger, and a person crossing it, whether on foot or in a vehicle, must exercise ordinary care for his own safety to exonerate him from the charge of contributory negligence, and what is ordinary care under one set of circumstances might amount to negligence under a different set of circumstances. Ordinary care is such care as a person of ordinary prudence exercises under the circumstances of the danger to be apprehended. The greater the danger the higher the degree of care required to constitute ordinary care, the absence of which is negligence. It is a question of degree only. The kind is precisely the same. Young v. Railroad Co., 148 Ind. 54, 58, 47 N. E. 142; Prue v. Railroad Co., 18 R. I. 360, 369, 27 Atl. 450. In McGee v. Railway Co., 102 Mich. 107, 115, 60 N. W. 295, 26 L. R. A. 300, 47 Am. St. Rep. 507, the court said: "We see no more reason for applying the rule that one must look and listen before crossing the tracks of a steam railway than that one must look and listen before crossing a street car track upon which the motive power is electricity or the cable. In this state it is well settled that persons passing over railroad crossings must exercise care. They must look and listen, and, under certain circumstances, must stop, before...