Ferrage v. Honolulu Rapid Transit & Land Co.

• Decision Date: 28 November 1917
• Docket Number: No. 1043.,1043.
• Citation: 24 Haw. 87
• Parties: JOHN FERRAGE v. HONOLULU RAPID TRANSIT AND LAND COMPANY, A CORPORATION.
• Court: Hawaii Supreme Court

24 Haw. 87

JOHN FERRAGE

v.HONOLULU RAPID TRANSIT AND LAND COMPANY, A CORPORATION.

No. 1043.

Supreme Court of the Territory of Hawai‘i.

Argued November 13, 1917.

Decided November 28, 1917.

ERROR TO CIRCUIT COURT, FIRST CIRCUIT. HON. C. W. ASHFORD, JUDGE.

Syllabus by the Court

Where the facts are undisputed and but one reasonable inference can be drawn therefrom it is the duty of the court to pass on questions of negligence, contributory negligence and proximate cause as questions of law.

The duty to observe ordinary care requires that the driver of an automobile must anticipate the possibility of meeting pedestrians or other vehicles at street crossings and have his machine under such control as may be necessary to avoid collision. The mere sounding of a horn is not a sufficient precaution when the circumstances demand that speed be slackened or the machine be stopped.

Where the evidence shows negligence on the part of both plaintiff and defendant, in order that the rule of “the last clear chance” may be applied, the plaintiff either must have been in actual peril and unable to extricate himself, or in immediate danger of getting into peril to the knowledge of the defendant, and there must have been a reasonable opportunity thereafter for the defendant to have averted injury, otherwise, the negligence of plaintiff and defendant being concurrent at the time of the injury, the plaintiff's negligence is to be regarded as a proximate cause of the injury, and the plaintiff cannot recover.

The rule that contributory negligence of the plaintiff does not preclude the recovery of damages where the injury was caused by the wilful act of the defendant has no application in a case where the gravamen of the plaintiff's complaint was negligence-not wilfulness-and the case was tried on the theory of negligence on the part of the defendant.

W. B. Lymer for plaintiff in error.

A. L. Castle ( Castle & Withington and J. W. Cathcart on the brief) for defendant in error.

ROBERTSON, C.J., QUARLES AND COKE, JJ.

OPINION OF THE COURT BY ROBERTSON, C.J.

This case is before the court upon a writ of error to review a judgment entered in favor of the defendant in the circuit court.

The action was one for damages for an injury alleged to have been caused by the negligent operation of a street car belonging to the defendant corporation which caused a collision between the car and an automobile belonging to and driven by the plaintiff. Paragraph VII of the plaintiff's complaint alleged,

“That the said defendant, through its agents and employees, so negligently operated said street car No. 9, by propelling the same at an unlawful rate of speed, to wit at approximately eighteen to twenty miles an hour, without sounding any bell or gong as aforesaid, and without sounding any alarm or giving any warning that the plaintiff could or did hear, and without yielding to plaintiff the right-of-way over said Merchant Street, as required by law, that said street car No. 9 was wrongfully, negligently and in utter disregard of the safety and rights of the plaintiff, and being beyond the proper control of said motorman, and without fault upon the part of the plaintiff, driven forcibly against and collided forcibly with plaintiff's said automobile and, through the force of the impact of the collision of said street car with said automobile, the plaintiff's said automobile was entirely wrecked and destroyed beyond the possibility of any repair whatsoever, and the plaintiff was thereby violently thrown and hurled against the driving-wheel of said automobile, and was thereby badly bruised, wounded and injured, all of which was in contravention of plaintiff's private rights under the law.”

And paragraph VIII of the complaint alleged, “That at the time of the said collision and injuries the plaintiff acting under the authority and by the directions and instructions of said police authorities, as aforesaid, was operating his said automobile in a careful and prudent manner and said collision and resultant injuries were not caused by any negligence whatsoever upon the part of the plaintiff, and the same could have been avoided by the use of ordinary diligence and prudence upon the part of the defendant and its agents and employees then and there running and operating said street car, and would have been avoided, had said employees of said defendant been operating said street car at the lawful rate of eight miles per hour.”

The case went to trial in the court below before a jury, and at the close of the case for the plaintiff the defendant moved for a nonsuit upon the grounds that there was no evidence of negligence on the part of the defendant, that evidence which was undisputed and susceptible of but one reasonable inference showed that contributory negligence of the plaintiff was the proximate cause of the injury, and that there was a fatal variance between the allegations of the complaint and the evidence adduced in several particulars. The trial court granted the motion upon the second ground.

The evidence showed, without conflict except as to unimportant circumstances, that at about half-past ten o'clock on the night of March 6, 1917, a car of the defendant company bound down Fort street, in Honolulu, proceeded to cross Merchant street at a rate of speed between 18 and 20 miles per hour; that the motorman operating the car knew or might with reasonable diligence have known that an ambulance or automobile of some kind was also approaching the corner; that no gong was sounded; nor was any attempt made to stop or slow down at the intersection; that the plaintiff, who is a public chauffeur, and had three passengers in his machine at the time, was requested by the deputy sheriff of Honolulu to take an injured man from the vicinity of Victoria street on King street to the emergency hospital; that he proceeded along King and Merchant streets on his way to the hospital, his automobile going at the rate of about 30 miles an hour, and making no effort to slow down at street intersections; that he was steering the car with his left hand while keeping his right hand on the button which sounded a continuous blast on an extra loud horn; that the horn, on a quiet night, could be heard distinctly at least half a mile away; that upon nearing the corner of Fort street the plaintiff saw the street car come into view as it passed the building (Castle & Cooke's) on the easterly corner of the intersection; that he immediately applied the brakes, but his machine skidded along and crashed into the side of the car; that the car was damaged, the automobile demolished, and the plaintiff injured about the head and legs. There was some conflict in the testimony as to the distance the automobile was from the point of collision when the brakes were put on, one witness testifying that the plaintiff applied the brakes when about 50 or 60 feet from the car track, while the plaintiff himself said the distance was about 18 feet. We think that was unimportant. The plaintiff testified that considering the speed at which he was traveling and the condition of the street, which was smooth and dry, he could have brought the machine to a standstill in about 40 feet. Asked to describe the event, the plaintiff said, “Well, I was coming down Merchant street, with my horn on all the time, just got about Castle & Cooke, just a little further below the - past the corner, I saw the flash of the street car light, and it came so quick on me that I didn't have a chance. I applied my brakes but I didn't have a chance, and crashed at the same moment.” He explained that by “the corner” he meant the rear corner of the Castle & Cooke building. Referring to the use of the brakes the plaintiff said, “That is the only chance I had, because if I had turned...