Detroit United Ry. v. Nichols

• Decision Date: 20 November 1908
• Docket Number: 1,815.
• Citation: 165 F. 289
• Parties: DETROIT UNITED RY. v. NICHOLS.
• Court: U.S. Court of Appeals — Sixth Circuit

165 F. 289

DETROIT UNITED RY. v. NICHOLS.

No. 1,815.

United States Court of Appeals, Sixth Circuit.

November 20, 1908

T. T Leete, for plaintiff in error.

C. I Webster and W. N. Choate, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

This was an action in tort. There was judgment for the plaintiff. The defendant in error, plaintiff below, while crossing a street car track at a street crossing, was knocked down and run over by an electric street car operated by the plaintiff in error, sustaining serious injuries. The defendant in error, hereafter referred to as Miss Nichols, accompanied by a friend, Mr. Cleveland, alighted from an east-bound street car at the corner of Kercheval and Field avenues, in Detroit Mich. Kercheval avenue is an east and west street, 60 feet from curb to curb, and straight. Field avenue crosses it at right angles. The railway company has two parallel tracks on Kercheval; the northerly one being used by cars going west, and the southerly one by cars going east. The two passengers alighted from the south side of the car by a side door about midway from the ends of the car. The petition alleges that they stood upon the street and made no attempt to cross to the north side until after the car from which she had alighted had moved past them. The destination of Miss Nichols was the home of her mother on the northeast corner of Kercheval and Field avenues. The rear end of the car had stopped a few feet east of the east side of Field avenue. The entrance to her mother's home was on Field avenue. Hence a direct line from where she stood, until her car had gone on, to the entrance of her home, was a diagonal one. The distance was approximately 32 feet to the north rail of the west-bound track she must pass. Just as she was about to step over this northerly rail, she says she was struck by a west-bound car moving at great speed. She had, therefore, upon her own evidence and that of her witnesses, walked in a slow and usual way 32 feet before being struck.

First, as to the question of the negligence of the railway company. This was averred to consist in excessive speed in violation of a city ordinance, negligence of the motorman in failing to keep an outlook, and failure to ring the gong or give any warning of approach. There were two city ordinances in evidence regulating the speed of street cars. By these the street railway companies were prohibited from running over the lines of any street railway company in the city of Detroit at 'a greater rate of speed than an average of ten miles per hour for the whole length of any route' within the 'three mile circle,' nor at a greater rate of speed than 'an average of fifteen miles per hour for the whole length of any route lying without such circle. ' This accident occurred within the three-mile circle referred to. Another provision of the ordinance made it the duty of 'motormen operating street cars' to cause such cars to slacken their speed to a rate not exceeding three miles per hour when approaching any other car going either in the same or an opposite direction when such car has stopped, or is about to stop, to permit passengers to get on or off. ' We italicize this because the application of the ordinance to the facts of this case is to be considered later.

In respect to a violation of the ordinances, the court charged the jury as follows:

'By the ordinance of the city of Detroit referred to, all street railway companies in the city who shall have charge, supervision, or control of the running or the operating of cars on any street railway in the city of Detroit shall be and are hereby required, in operating said cars to slacken their speed to a rate not exceeding three miles an hour when approaching any other car going in an opposite direction when such car has stopped or is about to stop to permit passengers to get on or off.

By another ordinance, an earlier one, it is provided that cars shall not be run within the three-mile circle in the city of Detroit at a greater rate of speed than an average rate of ten miles an hour. Therefore, the question of speed enters into this case as one of the alleged acts of negligence of the company, namely, that the car was running at a too high rate of speed, and that, in part at least, was the cause of this injury, and in connection with other acts of negligence charged in the declaration to which I have already referred. It is for the jury to determine whether that ordinance was violated, and whether its violation was the cause in whole or in part of this accident to the plaintiff.'

Bearing upon the meaning, purpose, and applicability of the ordinance prohibiting a greater speed than three miles per hour 'when approaching any other car going either in the same or the opposite direction, when such car has stopped, or is about to stop, to permit passengers to get on or off,' the plaintiff in error preferred a request for a special charge in these words:

'If you believe the evidence of the plaintiff and witness Cleveland that the east-bound car had started and proceeded easterly from its stop near Field avenue when the west-bound car passed it, then I charge you that the city ordinance fixing the rate of speed for cars passing cars stopped or about to stop has no application in this case.'

This was refused, and an exception reserved, and the refusal is now assigned as error. The plaintiff had herself in her declaration averred that she had gotten off on the south side about the center of the car, and that she had stood some few feet away from the car until it had passed on east, and that only then did she start to cross the two tracks between her and the opposite side of the street. How far the car had passed she does not, in her testimony, say, because, she says, she did not look to see how far it had gotten away after she started to cross, or before going upon the west-bound track. Her companion, the witness Cleveland, referred to, testified that before reaching the west-bound track the car from which they had gotten off had about reached Sheridan avenue, some 300 feet east of Field avenue. Now, if this was the case, it is manifest that the car approaching from the east on the west-bound tracks, the car which collided with the plaintiff, had not 'approached,' in the plain sense and meaning of the ordinance, the car from which she had gotten off, so as to require it to slacken its speed to three miles per hour. The obvious purpose of the ordinance is to guard against injury to passengers getting on or off a car, and a car cannot be said to be approaching a car 'stopped' or which is 'about to stop to permit passengers to get on or off' when such cars pass each other at a distance such as that indicated by the evidence referred to. The special request should have been given, and the nonapplication of that provision explained to the jury, if they believed the testimony.

The question of the contributory negligence of the plaintiff was sharply presented by the evidence of the plaintiff herself. Kercheval street was 60 feet wide from curb to curb, and was perfectly straight. After the car from which she had alighted had passed on, there was no obstruction to seeing the approach of the car on the west- bound track.

The hour was midnight, the approaching car was well lighted, and there was no traffic to prevent hearing. Yet the plaintiff says she looked east before starting to cross, and looked again when in the space between the two tracks, and neither saw nor heard this car coming from the east, and that she never did know of its presence until it struck her just as she was about to take the last step which would have placed her beyond the track upon which it was coming. The witness Cleveland says he, when about to go upon the westbound track, looked east as far as the next cross-street and saw no car. The plaintiff, when interrogated, said:

'We stepped back two or three steps after we got off the car, and stood there south, toward the south curb. We stood there until the car passed, facing toward the north. I looked around toward the east, and then we started to cross. I looked toward the east, naturally, to see if there was a car coming. I did not see any car coming. Q. How far do you think you looked toward the east? A. Well, I don't know how far. I should think as far as Sheridan avenue, which is the next street east of Field crossing Kercheval. It was just an ordinary night, neither light nor dark. Q. Did you look to the east before or after the car that you had gotten off from started up again? A. Just as it passed I looked toward the east. Q. Now, you say as you stood here you were facing north. That would bring you facing this car? A. Yes, sir. Q. And this car was going to the east? A. Yes, sir. Q. When did you look toward the east? A. As I said, just as the car started to pass. Q. Could you see up the track on both tracks when you looked? A. Yes, sir. Q. Did you see any car coming? A. No, sir. Q. What did you do after that? A. I said we started crossing in a diagonal direction. Q. Diagonally, which way? A. That would be toward the northwest. Q. Where you stood was above the corner, was it? A. Yes, about 20 feet east. Q. And you started diagonally northwest to the corner, did you? A. Yes, sir. Q. While we are waiting for the blackboard, what did you do next after you looked east to see if a car was coming; after this car had started on east, what did you do? Mr. Leete: Started to pass, she said. Q. Had the car gone by when you started across the track? A. Yes, sir; as it passed we started across, for we stood there until the car did pass. Q. Then you say you started in a diagonal direction across the track? A. Yes, sir. Q. Then go on and tell what

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