Crenshaw v. Asheville & B. Street Ry. & Transp. Co.

• Decision Date: 09 April 1907
• Citation: 56 S.E. 945,144 N.C. 314
• Parties: CRENSHAW et ux. v. ASHEVILLE & B. ST. RY. & TRANSP. CO.
• Court: North Carolina Supreme Court

56 S.E. 945

144 N.C. 314

CRENSHAW et ux. v. ASHEVILLE & B. ST. RY. & TRANSP. CO.

Supreme Court of North Carolina

April 9, 1907

Appeal from Superior Court, Buncombe County; W. R. Allen, Judge.

Action by one Crenshaw and wife against the Asheville & Biltmore Street Railway & Transportation Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed, with directions to dismiss.

See 52 S.E. 731, 140 N.C. 192.

In an action against a street railroad for injuries, it appeared that plaintiff was purchasing fruit at the wagon of a vendor when the mule by which the wagon was drawn became frightened at the approach of a car and backed the wagon against plaintiff, who retreated down the street; that plaintiff as she retreated signaled the motorman, but thereafter paid no attention to the car; that on seeing the fright of the mule the motorman applied the brakes and brought the car under control, but released the brakes when the mule was brought under control; and that when the car passed plaintiff she was not on the track and was proceeding down the street, but that she walked into the side of the car. Held, that as a matter of law defendant was not negligent, but plaintiff was guilty of contributory negligence.

The plaintiff Susan Crenshaw brought this action to recover damages for injuries she received, and which were caused, as she alleges, by the negligence of the defendant. At the time of the occurrence she lived on the east side of Bailey street in the city of Asheville. The track of the defendant's railway is laid on that street, which at and for some distance on either side of the place of the accident runs north and south. The feme plaintiff on August 7, 1901, and late in the afternoon of that day, had gone from her home across the track of the defendant, and to the opposite, or west side of Bailey street, to buy apples from one Bryson who was selling them from a wagon drawn by a mule, which was headed towards the north. While Mrs. Crenshaw was standing at the rear end of the wagon making her purchase, one of the defendant's cars, proceeding south, came in sight. The mule was frightened and became unruly. He backed the wagon against the plaintiff, who retreated down the street. She then turned and signaled the motorman by throwing up her hand, but did not pay any attention to the car after that time. The evidence tended to show that the car was running at a moderate rate of speed. The conductor had slackened the speed by applying the brakes, and when Bryson had taken hold of the reins and started up the street with the mule, and just before the car passed the plaintiff, he released the brakes. The plaintiff was then about 12 feet from the track directly out, and the car was from 14 to 18 feet north of a point on the track immediately opposite where the plaintiff was at the time. The mule was then under the control of its driver. If the brakes had not been released, the car could have been stopped within 6 or 8 feet. The car was running slowly all the time at that place, about as fast as a man can walk. The plaintiff's witness, Bryson, testified in substance that the feme plaintiff was on the west side of the street at the rear end of his wagon. The car came down the street, and the mule began to back as if it would run the wagon into the car, and the lady ran down the street; that she had gone from 16 to 20 feet, when he got the mule straightened back and started up the street; that the mule had backed the wagon from the west side towards the east side of the street, and close to the car as it was passing something like 2 feet or 18 inches from the car as it passed the wagon; that at this time, when the car was closest to the wagon, he was between the wagon and the car, and the plaintiff was from 16 to 20 feet from the wagon and down the street near the west sidewalk, on the west side of the passing car; and that she was in that position the last time he saw her. The plaintiff's witness Kosky testified that when the mule began to back the wagon the plaintiff ran down the street on the west side, and then across the street towards the east, and struck the car near the front right-hand corner. The evidence further tended to show that the collision with the car caused the feme plaintiff to fall, and the wheels on one side passed over her feet. The injury was received on the west rail of the track, 36 to 40 feet from the point where the plaintiff was at the wagon when the mule began to move.

The defendant's testimony was to the effect that, as the car approached, the mule showed signs of restiveness and turned somewhat towards the west sidewalk. The motorman then had his car under control, and the plaintiff was 12 or 15 feet from the car track and near the rear end of the wagon. About the time the car was passing the mule and wagon, the plaintiff started down the street on the west side near the curbing, and after having gone some distance she stopped a moment, and then turned and ran diagonally across the street towards the car track, where she collided with the side of the car just back of the front steps, was knocked down, and injured. The motorman testified that he did not see the plaintiff, after he passed the wagon, until after she ran into the side of the car and was falling. When he passed her, she was standing 12 feet from the car, and, seeing that everything was all right, he looked ahead and did not see the plaintiff again until a lady screamed and attracted his attention. He then looked around and saw her falling. He also stated that it was 4 or 5 feet from where he was standing on the front platform to the point where she struck the car. The evidence further tended to show that the street, at the place where the accident occurred, was 26 feet wide between the curbs; the railway track, which was laid on the east side of the street, about 1 1/2 feet from the east curbing, was about 5 feet wide; and the car projected over the track about 1 foot at the widest point. The evidence also tended to show that the plaintiff was in no actual danger after she moved away from the wagon and started to run, either diagonally across or straight down on the west side, and then diagonally across the street towards the car, where she was injured. Mrs. Fisher testified: "I saw the car coming down the street, about Mr. Heston's house. As it got a very little closer the mule began to shy at something, or to throw up his head and shy a little. The man stepped around the side of the wagon and took hold of the bridle. By that time the car was very close to them. He had slowed up some, was not running fast, and Mrs. Crenshaw started to leave the wagon. She turned from the wagon and went down the street almost opposite to my father's gate. I thought she was coming into my lot, and when I saw she turned towards the car I screamed; but before I could attract her attention she had reached the car, and the handle on the body of the car, back of the platform, struck her left shoulder and threw her back from the car, and she struck on her right side." She further stated, in substance, that the plaintiff was running with her head down, and just as she reached the car she looked up, and threw up her hands, and said, "Oh, God!" and at that moment the car struck her and she fell on the ground. When she turned near the gate, she went rather diagonally towards the car, or southeast. At the time she turned suddenly, she was the width of the street from the car (about 15 feet), and the car was then about opposite to her. The witness screamed when the plaintiff turned and started towards the car, but she reached the car before the witness could attract her attention. The evidence tended to show that the plaintiff was very much frightened as she left the wagon and went down the street.

The defendant in apt time moved, under the statute, to dismiss the action. The motion was overruled, and the defendant excepted. The jury returned a verdict for the plaintiff, and, judgment having been entered thereon, the defendant appealed.

Julius C. Martin and Chas. A. Webb, for appellant.

Frank Carter and Moore & Rollins, for appellees.

WALKER, J. (after stating the case).

The counsel for the defendant abandoned all assignments of error except those which raised the question whether, upon the evidence, construed most favorably for her, the plaintiff is entitled to recover. The testimony is voluminous, and we have held the case over from the last term in order that we might give it a most careful examination. There are few conflicts in it, and they are slight and not very material. When every disputed question of fact is resolved in favor of the plaintiff, it does not seem to us that she has made out a case. Indeed, it is clear to us that she has not, whether we consider the facts with reference to any omission of duty on the part of the defendant, or with regard to her own negligence as the efficient and proximate cause of the injuries received. No fault is imputed to the motorman in the management of his car up to the time that the plaintiff left the wagon and was apparently out of any danger from any apprehended conduct of the mule. Indeed, all of the evidence shows, and the case was argued upon that theory here, that the motorman had slowed down by shutting off the power and applying the brakes, so that he had the car completely under his control, and the speed had been so reduced that it was moving very slowly as the point of danger, from the backing of the mule, was being passed. He acted promptly, and showed every disposition to avoid an accident. Nor do we find any evidence in the case which tends to show that he relaxed his efforts in this respect at any time before the plaintiff was injured. We are not permitted to decide upon mere...