Camden Interstate Ry. Co. v. Broom

• Citation: 139 F. 595
• Decision Date: 21 July 1905
• Docket Number: 1,409
• Parties: CAMDEN INTERSTATE RY. CO. v. BROOM.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

139 F. 595

CAMDEN INTERSTATE RY. CO. v. BROOM.

No. 1,409

United States Court of Appeals, Sixth Circuit.

July 21, 1905

A. R Johnson, for plaintiff in error.

R. B Miller and W. D. James, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

On December 5, 1902, the plaintiff below, Edward Broom, a boy six years old, was run over by one of the defendant company's cars, and lost a leg. The accident occurred in the morning, at or near a street crossing in Ironton, Ohio while the boy, in company with other children, was on his way to school. He brought this suit by his next friend, claiming the company was liable, because the brakes on the car were out of order (one set being off and the other not working properly), so it could not be stopped quick enough to avoid striking him, and because, in view of the presence of the children at and near the crossing, the motorman did not use the necessary precautions in approaching it, running at too high a rate of speed, without keeping a proper lookout and giving warning by bell or gong of his approach. The company defended on the ground that the car was properly equipped with brakes, and that the accident was inevitable, not being attributable either to the condition of the car or the action of the motorman in operating it, but solely to the conduct of the boy in suddenly and unexpectedly running from the sidewalk in front of or against the car. A motion for peremptory instructions in favor of the defendant having been denied, there was a verdict and judgment for $10,000, which the court declined to disturb.

It is very earnestly argued that no case for recovery was shown in the testimony, and that, if there was, the court erred in its rulings during the trial. The accident took place on Elm street, at or near the east side of its intersection with Third street, at about half past 8 o'clock in the morning, when the children of the neighborhood were on their way to the public school, located on the east side of Third street, about half a block north of Elm. The street railway of the defendant company runs south on Second street to Elm then east on Elm to a point between Fourth and Fifth, where it crosses a bridge over Storms creek. The car which caused the injury was an interurban one, 38 feet long, and weighing 20 tons. It was in charge of Motorman Willis, who had been operating cars over the route for about four months, knew the location of the schoolhouse, that the school was in session, and was familiar with the habits of the children in going to and coming from school. On this day the car stopped after it had rounded the curve from Second into Elm, to take on a passenger, and then started out Elm towards the crossing on the east side of Third, about 300 feet distant, and in plain view. At this time a number of school children were collected at the intersection of Third and Elm on or near the southeast corner. There was a fire hydrant on this corner, and near it a pool of muddy water. The sidewalk was not paved, nor was the crossing over Elm. The situation at that corner was thus described by one of the defendant's witnesses:

'I was standing at the water plug that is right at the corner there, and the children were all gathered around there, getting ready to go to school. The first bell was ringing for school. The boys were splashing water on the girls-- the little girls-- as they came along, and I saw the car coming.'

The little Broom boy was at or near this corner as the car came east on Elm. He was on his way to school. To get there he had to cross Elm, which was about 30 feet wide; so it was only about 12 feet from the outer edge of the sidewalk (there was no curb there) to the nearest rail.

All of the above facts are practically undisputed. As to what occurred at the precise time of the accident there is a conflict in the testimony. The testimony of the defendant tended to show that the car was coming out Elm street at its usual rate of speed (the motorman said five or six miles an hour); that the brakes were in perfect condition; that the motorman was keeping a proper lookout; that no one was on or near the track as the car neared the crossing on the east side of Third street, when suddenly and unexpectedly the little Broom boy started from the sidewalk on the south side of Elm near the corner, and, running rapidly and in a diagonal direction across Elm street, with his face away from the approaching car, ran either directly in front or against the side of the car so quickly that it was impossible for the motorman to stop the car in time to prevent the accident. As soon as the motorman saw the boy, he applied the brakes and stopped the car, but meanwhile it had run over the boy, who was picked up under the rear platform. If this were all the testimony in the case, it might well be said that no ground of recovery was shown (Chilton v. Central Traction Co., 152 Pa. 425, 25 A. 606; Fleishman v. Neversink Mt. Ry. Co., 174 Pa. 510, 34 A. 119; Booth on Street Railways, Sec. 310); but the testimony of the plaintiff (and it was of a substantial character) tended to prove that although, from the number of children on or near the Third street crossing in plain view of the motorman as he started out Elm, he should have anticipated some one of them might attempt to cross the track in front of his car, and therefore was bound to take precautions to avoid injuring him, holding the...