Bremer v. St. Paul City Ry. Co.
| Decision Date | 12 March 1909 |
| Citation | 120 N.W. 382,107 Minn. 326 |
| Parties | BREMER v. ST. PAUL CITY RY. CO. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Ramsey County; Olin B. Lewis, Judge.
Action by Maria Bremer against the St. Paul City Railway Company. Verdict for plaintiff, and from an order denying defendant's motion for judgment notwithstanding the verdict or for a new trial, it appeals. Affirmed.
Syllabus by the Court
A street car company does not acquire by its conferred franchise a servitude or right to priority of way upon the highway, as does an ordinary freight or passenger railway company, by gift, voluntary transfer for consideration, or condemnation with compensation, as to land over which it runs its tracks. A street car and a footman or vehicle have equal rights of the same kind to the concurrent use of the city streets.
The rights and duties of both are reciprocal and mutual. Each is bound to exercise commensurate care in self-protection and in avoiding harm. Such care on the part of the street car company is differentiated from that of an ordinary user of the street, because its tracks make the side movements of its cars impossible, and because it is authorized to operate heavy cars, with powerful motive force, by reason of which the momentum and inertia of its cars differ from that of ordinary vehicles.
At a street crossing, or at a place used as a street crossing, the motorman in charge of a car approaching one discharging passengers is bound to keep a sharp lookout for passengers or other persons who may attempt to cross the tracks behind the other car, to have his car under such control that he can stop it upon the appearance of danger, and to give such signals as are usually given to protect travelers who are in the exercise of ordinary prudence.
The traveler on the street under such circumstances has the right to rely on the exercise of such care by the motorman, but is required to exercise due care in protecting himself and in avoiding harm. Such care does not amount to the caution required to be exercised where the highway crosses the track of an ordinary railway. The traveler is not under a hard and fast obligation to stop, or to look and listen.
Where the evidence of the plaintiff shows actual negligence on the part of the company, and the question of contributory negligence of plaintiff depends on a variety of circumstances, from which different minds may reasonably arrive at different conclusions as to whether contributory negligence should be found or not, the question should be submitted to the jury under proper instructions, and it is error in such a case for the court to direct verdict for the defendant.
In this case plaintiff, a passenger on defendant street car company's west-bound car, arrived in daytime at a place not the intersection of streets, but which had been recognized and in this case was recognized by defendant as a place for discharging passengers. She followed another passenger, who had alighted before her, who crossed the track ahead of her in safety. Another car of defendant, which was loaded with crushed rock, passed the car from which plaintiff had alighted, and struck and carried her 100 feet from the point of collision. There was contradiction in the testimony as to the speed at which it was going and as to whether it gave the usual signals. In an action to recover for consequent personal injuries it is held that the questions of defendant's negligence and plaintiff's contributory negligence were for the jury.
W. D. Dwyer and W. R. Duxbury, for appellant.
McElwee & Hollihan, for respondent.
Plaintiff and respondent, a woman 65 years of age, was a passenger on a street car of defendant and appellant's railway company. The car stopped at her signal, at a point about half way between two cross streets, where plaintiff had often gone out of the cars to attend to business. Another passenger had left the car in front of her, and passed behind it. She followed him directly and ‘wanted to follow him farther on.’ The car from which she alighted was going west. As she was going diagonally across the street, she was struck by an east-bound work car. She testified: ‘I heard nothing, no bell and nothing, and it hit me on the legs, and I fell down, and thereafter I didn't know anything more.’ The jury might have inferred that plaintiff collided with the east-bound car at a point four feet back of the tender; but her testimony and the circumstances in connection with the place of fracture and laceration of her right leg and the distance from its tender to the top of the rail were sufficient to have justified a finding that she was struck by the tender in front of the approaching car. It must be here assumed that it so found. The distance between the inside rails of the double tracks was such as to leave a clearance not to exceed 18 to 24 inches between the cars when opposite to each other. One of the defendant's witnesses testified that the work car, loaded with crushed rock, was going only 3 or 4 miles an hour; but there was also testimony that the usual rate of speed at that point was 10 or 12 miles an hour, and that the work car ran 100 feet after it struck plaintiff. The witness who alighted ahead of plaintiff heard and saw the construction car. Thereupon he ‘kinder obliqued to the left and crossed the track, and at the same time motioned to the party following him and also to the employé with his hand like this (indicating), and just about that time the front end of the car came between him and the party who followed, the lady, and he heard a scream and at the same time the application of the emergency brakes, or something of that kind.’ Other testimony on the point was more favorable to the plaintiff. The jury returned a verdict for plaintiff in the sum of $2,000. This appeal was taken from the order of the trial court denying defendant's motion in the alternative.
Defendant's negligence must be assumed. Its brief does not contend that actionable negligence was not shown. Moreover, as will appear from the consideration of plaintiff's negligence, which immediately follows, the question was for the jury. The only controversy here is whether plaintiff as a matter of law was guilty of contributory negligence. The primary fallacy, which in fact, although not in phrase, underlies defendant's contention that plaintiff was so guilty, and which is frankly avowed by some authorities cited to sustain it, is that a street railway company has some superior or paramount right on a public street to that of a passenger or driver of vehicles. This view, it is true, is supported by a more or less clearly defined group of cases which secure to a street car system power to use public streets almost equal to that of a railroad company to use its tracks. For example, see Chicago Ry. v. Meinheit, 114 Ill. App. 497;Denver T. Co. v. Norton, 141 Fed. 599, 73 C. C. A. 1;Gray v. Traction Co., 198 Pa. 184, 47 Atl. 945 (see post); Minnich v. Wright, 214 Pa. 201, 63 Atl. 428, and subsequent discussion of rule as to ‘stop, look, and listen.’ Three considerations are currently relied upon to confer upon street railways the priority of way, viz., that their tracks necessitate a fixed course, which makes it impossible to turn cars to the side; that such companies are generally authorized to propel heavy cars by powerful motor force, in consequence of which the momentum and inertia of street cars differ from that of ordinary vehicles; and that general convenience demands rapid and undeterred transit by such public service companies. Upon the most casual reflections, however, it will clearly appear that the conclusion does not follow from these premises. Due allowance may be made for all these considerations. The lawful use of streets by street cars on the one part, and by footmen and vehicles on the other, may be differentiated by due reference to these circumstances; and none the less the common-law rights of ordinary users of the highway, though somewhat modified by them, may still be preserved in substance. In other words, the common-law rules as to the use of public highways may be merely adapted to new conditions imposed by the weight, power, and tracks of a street car, its inability to move sidewise, and its momentum.
There is a natural and necessary difference between the fundamental right of an ordinary freight and passenger railroad to its right of way and the right of the street car company to use the streets of a city. The railroad company, by gift, voluntary transfer for consideration, or condemnation with compensation, secures a fee or an incorporeal hereditament, and operates its roads by virtue of ownership; the street car company obtains a privilege to build its tracks and operate its cars without gift, purchase, or condemnation of land. That privilege creates no new servitude upon the highway, but makes possible an additional use of such highway, consistent with and in furtherance of the purposes of its original dedication. The railroad company may have an estate; the street car company always has a franchise. The lands over which a railroad company builds its road are withdrawn from general or private use; the surface of a street is open to common travel. The way of a railroad company is used by it exclusively, subject to limited rights at public or private crossings; a street is used concurrently by the street car company and by the public. Kinsey v. Traction Co. (Ind. Sup.) 81 N. E. 922;I. T. & T. R. R. Co. v. Kidd, 167 Ind. 402, 79 N. E. 347,7 L. R. A. (N. S.) 143 (); Atty. Gen. v. Met. Ry. Co., 125 Mass. 515, 28 Am. Rep. 264;Robbins v. Springfield, 165 Mass. 30, 42 N. E. 334;Benjamin v. Railway, 160 Mass. 3, 35 N. E. 95,39 Am. St. Rep. 446;Hall v. Railway Co., 13 Utah, 258, 44 Pac. 1046,57 Am. St. Rep. 726;Newark Ry. Co. v. Block, 55 N. J. Law, 605, 27 Atl. 1067,22 L. R. A. 374;Citizens' Coach Co. v. Camden, 33 N. J. Eq. 267, 36 Am. Rep....
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