Ferreira v. Honolulu Rapid Transit & Land Co.

• Decision Date: 07 April 1905
• Citation: 16 Haw. 615
• Court: Hawaii Supreme Court
• Parties: M. P. FERREIRA, DEFENDANT IN ERROR, v. HONOLULU RAPID TRANSIT & LAND COMPANY, PLAINTIFF IN ERROR.

16 Haw. 615

M. P. FERREIRA, DEFENDANT IN ERROR,

v.HONOLULU RAPID TRANSIT & LAND COMPANY, PLAINTIFF IN ERROR.

Supreme Court of the Territory of Hawai‘i.

Argued February 23, 1905.

Decided April 7, 1905.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT, FIRST CIRCUIT.

Syllabus by the Court

One may be liable for injuring another even though the latter has negligently placed himself in a position of danger, and even though it was possible for him, if he had chosen the right course, to extricate himself from such position in time to avoid injury, if it was apparent or ought to have been apparent to the former that the course actually pursued was not likely to be effectual, as, for example, when an electric car going at an ordinary or excessive speed ran into and killed a boy who was riding horseback ahead of the car in a narrow space between the track and one side of the street, and it was or ought to have been apparent to the motorman that there was danger of a collision owing to the fright and fractiousness of the horse and the probable failure of the boy to keep it away from the track on the narrow side,-which the boy was trying to do rather than cross over to the other and wider side of the street.

It is not error to refuse to give instructions that are inapplicable to the facts of the case even though they may be correct as abstract propositions or as applicable to other facts.

It is not error to refuse requested instructions the substance of which is sufficiently covered by other instructions that are given.

In an action by a father for the death of his son, evidence is admissible, on the question of damages, tending to show the capability of the son to earn certain wages in the class of work in which his father is engaged, the kind and value of the services actually performed by the son for his father before his death, and the size and character of the father's family.

An action may be maintained in this jurisdiction by a father for the death of his son caused by the negligence of another.

A verdict of $3000 in an action by a father for the death of his son is not so excessive as to require a new trial, when there was evidence that the son was 15 years old, healthy and strong, that he performed services worth $25 a month to his father and which might be worth $35 a month to others, that he might earn $2 a day in the occupation in which his father was engaged, that the father had a wife and ten children, and that the funeral expenses were $216.50.

E. M. Watson and Holmes & Stanley for plaintiff.

Castle & Withington for defendant.

FREAR, C.J., HARTWELL, J., AND CIRCUIT JUDGE DE BOLT IN PLACE OF WILDER, J.

OPINION OF THE COURT BY FREAR, C.J.

This is an action for damages for the death of the plaintiff's son, who was killed in a collision with one of the defendant's electric cars on November 12, 1901. A verdict was rendered against the defendant, the plaintiff in error, for $3000. There are forty-five assignments of error.

The accident occurred under the following circumstances: The plaintiff's son Manuel, with two others, Kapena and Holt, were riding on horseback down Liliha street between Wyllie and Judd streets in Honolulu on the northerly side of defendant's track. As the space between the track and the side of the street narrowed Kapena and Holt crossed over to the southerly side of the track and called to Manuel to do likewise, but the latter replied that he was all right and that there was plenty of room on his side, and continued on that side. His horse became uneasy as the car approached from behind and the nearer the car came the more frightened did the horse become, Manuel meanwhile endeavoring to keep the horse from the track, until finally, when the car overtook him the horse got in front of the car and was struck by it and the boy was thrown off and run over by the car. The car was on a down grade going at a rate variously estimated, but no attempt was made to slow down or stop the car until the collision occurred. When the car was stopped the boy was found dead under the front wheel on the northerly side.

The main question is whether the evidence as a whole shows that the plaintiff made out a case upon which a verdict for him can be supported on the evidence. This question is raised by exceptions taken to the refusal to order a nonsuit at the close of the plaintiff's case and a refusal to direct a verdict at the close of the defendant's case. The defendant contends that no negligence was shown on the part of its employees in charge of the car, and that if there was such negligence there was also contributory negligence on the part of the boy. The question is whether there was any substantial evidence upon which the verdict could properly be based. It is not a question of the strength or weight of the evidence or the credibility of the witnesses, or whether the jury might properly have found for the defendant but whether it might properly have found, as it did find, for the plaintiff. Many of the principles of law involved in cases of this kind are set forth in Dong Chong v. Rapid Transit Co., ante, p. 272, and the ground there covered need not be traversed again in the present case.

Much testimony was introduced upon the question of the speed with which the car was moving at the time. The only person who saw the accident besdies Manuel's two companions, already mentioned, were the conductor and motorman of the car, who left the Territory before the trial and whose testimony was not obtained, a boy named Fuller, who was the only passenger, and a woman named Kaili, who was on the veranda of her house about 450 feet away. Kapena testified that the car was going fast-about twenty miles an hour he thought by comparison with the speed of a horse with which he was familiar, he never having ridden on an electric car. Kaili testified that it was running fearfully. Fuller testified that it was going very fast and that when it was suddenly stopped at the time of the collision, he, then standing up and holding on to the arm of a seat, was nearly thrown from the car. The defendant endeavored to show that the car was going at a very moderate rate-by calculations from the supposed distance between the car and the boys when the car first came in sight of Kaili, the supposed distance from where the boys were at that time to where the accident occurred, and the rate of speed at which the boys were riding, which, as all agree, was slow; also by testimony as to how near to the car, when it stopped, hoof marks were found on the ground on the northerly side of the track soon after the accident, and as to the distance within which the car in question was stopped when going at different rates of speed at the place in question some time afterwards, etc., etc. Whether the evidence upon this point taken as a whole was sufficient to justify the jury in finding, if it did so find, that the car was moving at a dangerous rate of speed or at a speed in excess of that, namely, 12 miles an hour, allowed by law at that place, it is unnecessary to say, although it may be stated that some of the assumptions relied upon by the defendant in making these calculations are not of a very satisfactory character and that the result arrived at from these calculations is such a low rate of speed as to suggest possible error in such result, considering all the circumstances. What the jury found in regard to the rate of speed does not appear, as the verdict was general, but even if it found that the rate was no greater than the evidence of the defendant alone would justify it in finding, still there were other circumstances which taken in connection with such rate of speed would support a verdict for the plaintiff.

We cannot say as a matter of law that it was negligent for the boy to ride on horseback on the northerly side of the track, although the space between the track and the side of the street at that point was perhaps not over nine feet in width. His horse was gentle and tame and had been ridden by him for several years, and up and down the street in question many times. Even if the boy was negligent in riding upon that side of the street, it would not necessarily follow that such negligence was a proximate cause of the accident so as to avoid liability on the part of the defendant. The servants of a street car company may not with impunity recklessly injure others even though the latter have been placed in positions of danger through their own negligence. It is well settled that even though one negligently places himself in a position of danger, another who causes him injury may be liable notwithstanding, if he does not take reasonable precautions to avoid doing injury when he has notice or such knowledge as ought to give him notice of the danger. But it is contended that this rule has no application when the negligence of the complaining party continues up to the time of the accident and is contemporaneous with the negligence of the party sought to be charged. That is true under some circumstances. But it is not always true that there is continuing negligence within the meaning of this qualification of the general rule merely because the complaining party remains in a position of danger in which he has negligently placed himself. If one after placing himself in a position that he knows or subsequently discovers to be dangerous cannot extricate himself from such position in time to avoid injury, or even if, though it may be possible to avoid the injury, it is clear to the other party that an ineffective method of avoiding it is being pursued or that the method pursued is not likely to meet with success, it would be the duty of such other party to avoid the injury, if he reasonably could, and he would be liable if he did not.

In the present case nothing was attempted to be done by those in charge of the car to avoid the collision until it was impossible to do anything. The question then arises whether the motorman or conductor knew or ought to...