Davis v. Durham Traction Co.

• Decision Date: 17 April 1906
• Parties: DAVIS v. DURHAM TRACTION CO.
• Court: North Carolina Supreme Court

53 S.E. 617

141 N.C. 134

DAVIS v. DURHAM TRACTION CO.

Supreme Court of North Carolina

April 17, 1906

Appeal from Superior Court, Durham County; Shaw, Judge.

Action by J. N. Davis against the Durham Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

In an action for injuries from being run into by a street car evidence considered, and held that the question of plaintiff's contributory negligence was for the jury.

Where in an action against a street railroad company for injuries to a traveler in a collision with a car, the evidence showed that the car was run at an excessive rate of speed, a requested instruction declaring that the company, on the traveler suddenly driving his wagon across the track, was only required to use ordinary care to avoid injuring him, was properly modified by adding, "and the car was not running at an excessive rate of speed."--Id.

Plaintiff sues to recover damages for injuries sustained by reason of alleged negligence on part of defendant's agents in managing its electric railway cars on the public streets of the city of Durham. Defendant denies that its agents were negligent, and for further defense alleges that plaintiff, by his own negligence, contributed to his injury, etc. Usual and appropriate issues were submitted to the jury. Plaintiff testified that, on the day of the accident, he was driving along one of the streets of Durham in a wagon; that he met two ladies driving a horse and buggy; that he turned to the right to cross the track; not sufficient room on right side for both, or, at least, the ladies did not turn out--he pulled his reins, turned across the road and looked back towards town, saw no car in sight close to him, and started to cross the track. That he could see only about 75 yards neither saw nor heard any car. He was sitting in front of the wagon. When he first saw the car it was 6 or 8 feet away, and by the time he turned his head it struck the rear end of the wagon. He thought the speed of the car was "not under" 40 miles an hour. Before crossing the track he looked back 70 or 75 yards and could not see any car. There was evidence on behalf of defendant tending to show that the car was not running faster than 14 miles miles an hour, the ordinance rate of speed. There was also evidence tending to corroborate the plaintiff's statement that the car was running at an excessive rate of speed. James Parrish, for plaintiff, testified that he saw accident. Saw two ladies in a buggy; two or three vehicles in the street; saw plaintiff had time to cross the track; car was about 20 or 25 yards from him. When he turned to cross the track the car was running from 20 to 25 miles an hour; it did not slacken its speed. Mr. Seeman, for defendant, testified that when plaintiff was about 25 or 30 feet ahead of car, he deliberately turned across the track. Saw him as he drew his lines. He did not observe the car coming. Near center of track plaintiff looked and saw the car, and about that time it struck him. Witness was on car. Motorman cut off the power and put on brakes. Does not know whether signal was given. It was not a street crossing. The motorman testified that he saw plaintiff driving along the car track. When first saw him he was 30 or 40 steps off. When within 10 or 12 steps from him plaintiff turned horse's head across the track. Plaintiff was so near the car that did not have time to stop it--was drifting downgrade. Put on brakes and sounded gong 20 steps from him. Had not started across the track then. Brakes were in good condition. Can hear the gong 75 steps. Running between 10 and 15 miles an hour. The conductor testified that he was at front of car when it struck the wagon. Plaintiff was traveling beside the track--plenty of room for car to pass without touching his wagon. Car ran 3 lengths before it stopped--was running about 10 miles an hour--plaintiff going from 4 to 6 miles an hour. There was other testimony tending to sustain both plaintiff and defendant's witnesses.

Defendant requested his honor to charge the jury that if they believed the entire evidence they should answer the second issue "Yes," and to his honor's refusal, duly excepted. Defendant submitted a series of instructions which his honor declined, and, in lieu thereof, after fully stating the contentions of the parties, instructed the jury: (1) The traveling public has the right to the reasonable use of the streets of the city of Durham, and the street cars operated on said streets not to be run at a rate of speed that will endanger those making such use of the streets. (2) The citizen has the same privilege to use the street for traveling that the street railway company has for running its cars on the streets. The franchise to operate its cars on the public streets of the city of Durham does not give the defendant the right to the exclusive use of the street or any part thereof, and does not excuse it from the obligation to exercise due and proper care to avoid injuring persons who have a right to use the streets. (3) It would not, as a matter of law, be negligence on the part of the plaintiff to attempt to drive across the track of the defendant if he looked back immediately before driving across the track and saw no car within 75 yards. (4) It is not negligence per se for a citizen to be anywhere upon such tracks (railway or streets). So long as the right of a common user of the tracks exists in the public, it is the duty of passenger railway companies to exercise such watchful care as will prevent accidents or injuries to persons who, without negligence on their own part, may not at the moment be able to get out of the way of a passing car. Defendant duly excepted. His honor further charged the jury that if they found that the car was running at a higher rate of speed than that prescribed by the ordinance of the city they should consider such fact as evidence upon the first issue. That if the defendant was operating its car at the time of the accident at a rate of speed not in excess of that prescribed, and if the motorman upon discovering plaintiff crossing the track, applied brakes to his car which were in good condition, and was unable to stop it, they should answer the first issue "No." That if the plaintiff undertook to cross the track when the car was so close to him that it could not be stopped in time to avoid the accident, if not running more than the rate prescribed, the jury will answer the first issue "No." That if they found that the motorman sounded the gong or that the car made sufficient noise to be heard by the plaintiff before attempting to cross the track, and notwithstanding either the sound of the gong or the noise of the car, plaintiff undertook to cross the track when so close that a collision could not be avoided by the exercise of reasonable care on the part of the defendant, they will answer the second issue "Yes." That while a person in a vehicle has the same right to the reasonable use of the street that the car has, still the car is compelled to move on its track, and for this reason it is the duty of the plaintiff to get out of the way of the car and to keep a reasonable lookout when going upon the track,...