Dale v. Denver City Tramway Co.

• Decision Date: 01 November 1909
• Docket Number: 3,083.
• Citation: 173 F. 787
• Parties: DALE v. DENVER CITY TRAMWAY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

173 F. 787

DALE v. DENVER CITY TRAMWAY CO.

No. 3,083.

United States Court of Appeals, Eighth Circuit.

November 1, 1909

Robert I. Gregg (R. H. Gilmore, on the brief), for plaintiff in error.

Howard S. Robertson (Gerald Hughes, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and WM. H. MUNGER District Judge.

WM. H MUNGER, District Judge.

This is an action brought by plaintiff to recover damages for the death of his wife, caused by the alleged negligence of the defendant. The facts disclose that Mrs. Dale, a resident of Chicago, Ill., was visiting friends in Denver; that on September 20, 1907, she, with a number of other ladies, was the guest of a friend at a tea party, after which the hostess hired an automobile and took her guests about the city sight-seeing. At about 6 o'clock in the evening they were going west on Eighth avenue in an automobile at a speed of from 15 to 18 miles per hour, until they reached Newport street, which crossed Eighth avenue, when, just as it made the turn to cross defendant's tracks on Newport street the automobile slackened its speed to 7 or 8 miles per hour. Eighth avenue, at the point in question, was in a sparsely settled portion of the city, and the street but little traveled. The street car track was laid in the center of the avenue, and there was no travel on the avenue on the south of the track; the only travel being upon the north side, in a pathway about 8 feet distant from the outer rail of the street railway track. One of defendant's street cars going west on Eighth avenue traveled some two lengths in the rear of the automobile for about a block before reaching Newport street, at the crossing of which a collision occurred between the automobile and the street car, from which Mrs Dale sustained injuries resulting in her death. The automobile was one having a top; the rear curtain being down and the side curtains being up. There were seven occupants of the automobile; Mrs. Dale being one of three persons sitting in the rear seat.

That the chauffeur was guilty of gross negligence in turning the automobile to cross the track, not having taken reasonable precautions to ascertain whether or not the street car was close behind him, does not admit of doubt; but Mrs. Dale, the deceased, was an occupant of the automobile as a guest, and did not have charge of, or control, its movements. The negligence of the chauffeur, therefore, is not imputable to her. Little v. Hackett, 116 U.S. 366, 6 Sup.Ct. 391, 29 L.Ed. 652.

There is some evidence to the effect that the street car was making a speed of from 18 to 20 miles per hour. On the trial plaintiff offered in evidence a municipal ordinance which granted the right to operate street cars upon certain streets, at a speed not exceeding 15 miles per hour, to the introduction of which defendant objected, for the reason that the ordinance had not been pleaded, and also for the reason that it was incompetent, irrelevant, and immaterial, which objection was sustained. The complaint was based upon the common-law doctrine of negligence. The negligence on the part of the company was charged as running the street car at an excessive rate of speed, and not giving warning of its approach by the sounding of a gong or the ringing of a bell.

The weight of authority and settled doctrine, of the federal courts at least, is that a municipal ordinance, to be admissible in evidence, must in...