Fuller v. Honolulu Rapid Transit & Land Co.
| Decision Date | 11 July 1904 |
| Citation | 16 Haw. 1 |
| Parties | ROBERT M. FULLER v. HONOLULU RAPID TRANSIT AND LAND COMPANY. |
| Court | Hawaii Supreme Court |
Submitted June 21, 1904.
EXCRETIONS FROM CIRCUIT COURT, FIRST CIRCUIT.
Syllabus by the Court
The court takes judicial notice of Chapter 69 of the Act of 1898 authorizing a street railway in Honolulu, but if this were not so the defendant's admission that it was a corporation organized under the Act would dispense with proof of the Act.
The right of way mentioned in Section 11 of the Act does not require that persons lawfully using the highway shall not pass in front of the defendant's cars under any circumstances, nor authorize defendant's cars to cross intersecting streets at times and under circumstances endangering the lives or property of persons attempting to cross in front of the cars. The defendant corporation's duty requires it to exercise due and proper care to avoid injury to other persons.
It is not contributory negligence on the part of the plaintiff to step upon the outer platform of defendant's car while stopping for passengers and to walk forward on the standing board to find room to sit in the car, it appearing that the car was full.
The evidence in the case is not such as to permit of but one reasonable inference concerning the defendant's negligence; consequently a decision by the court, jury waived, in favor of the plaintiff cannot be set aside on the ground that there was no evidence on which defendant's negligence might reasonably be inferred.
Whether in a case like the present a defendant is entitled to obtain physical examination of the plaintiff is not required to be determined in this case, since if such right exists in any case the examination ought to be applied for before entering upon the trial.
D. H Case, Avon H. Crook and C. F. Clemons for plaintiff.
Castle & Withington for defendant.
OPINION
The plaintiff averred in his declaration that while a passenger on the defendant's electric street railway car on February 22, 1902, a collision, owing to the defendant's negligence, occurred at the crossing of Nuuanu and Hotel streets in Honolulu, between the said car and a car and team of the Hawaiian Tramways Company, by reason of which collision the plaintiff, without fault or negligence on his part, was caught and crushed between the defendant's car and the tramway's car and team and received serious and dangerous injuries and was greatly bruised, hurt and wounded and so remained for a long time, and has ever since suffered great pain and injury and mental anxiety, and been unable to transact business.
Jury was waived by the parties and the cause was tried by Robinson, J., of the First Circuit Court, who decided in favor of the plaintiff, awarding him $2250 damages. At the close of the plaintiff's case the defendant moved for a non-suit on the ground that the driver of the tramcar was shown by the evidence to have seen defendant's car, " at the crossing and about to cross the street ahead of himself and in spite of that fact started up and attempted to cross irrespective of the law that gives to the Rapid Transit Co. the right of way, " (referring to Section 11, Chap. 69, Acts of 1898), and claiming that the evidence showed " that the position of the two cars was such that the tramcar was bound to wait until the Rapid Transit car had passed" . The court while inclining to the opinion that there having been no proof of the Act it was not bound to take judicial notice of it, ruled that " whether this was so or not the Act simply gave the Rapid Transit Co. a right of way in the event that two cars should endeavor to cross at the same time, so that if both started at the same time from points equally distant it would have been the duty of the driver of the tramcar to stop so as to permit the passage of the Rapid Transit car" . The court, however, held that the testimony showed " that the driver of the tramcar had actually started to cross the street before the two-bell signal had been given for starting the Rapid Transit car and for that reason, as well as because there was testimony that the motorman was not looking toward the direction from which the tramcar was coming" , denied the motion, the defendant excepting to the denial. The defendant's admission at the opening of the case that it was " a corporation authorized to carry out the provisions of the franchise conveyed by the Act 69 of the Laws of 1898" dispensed with proof of the Act. But apart from this admission judicial notice may be taken of the Act. As a common carrier of passengers the defendant corporation is of a quasi public nature; the Act under which it was incorporated " applies to and affects all persons, i. e., the public and not merely certain persons or classes of persons or interests." Section 502, Endlich, Interp. Sts. We are unable, however, to accept the defendant's view of the construction of Sec. 11 of this Act, which reads as follows:
" The cars lawfully occupying and using said railway shall be entitled to and have the right of way upon the tracks by this Act authorized to occupy streets, roads and places, as herein mentioned, except that in case of fire such right shall yield to the fire engines during the continuance of such fire in Honolulu, and to the Honolulu police authorities in case of emergency."
The right of way referred to in the above section does not require that other persons lawfully using the highway shall not pass in front of a Rapid Transit car under any circumstances; nor does the Act authorize the cars of the defendant corporation to cross intersecting streets at times and under circumstances endangering the lives or property of persons crossing or attempting to cross in front of the cars. It is the duty of the defendant corporation to exercise due and proper care to avoid causing injury to other persons. Whether a person in attempting to cross in front of an electric car used proper care, or took upon himself unnecessary risks amounting to contributory negligence, is a question not arising in passing upon this exception.
The transcript of the record shows that there was evidence on which the jury, or court sitting in place of a jury, could properly have found that the driver of the tramcar had started to cross the street before the Rapid Transit car had started, and also that the motorman was not looking in the direction from which the tramcar was coming. Mrs. Sharratt testified for the plaintiff (pp. 38, 39, transcript of evidence) that she was a passenger on the tramcar coming down Nuuanu street at the time of the accident; that the tramcar stopped toward Hotel street before it got to the crossing, when some passengers got off, that at about that time she saw an electric car of the Rapid Transit Co. " standing on the Waikiki side of Hotel street; the car was standing there before we stopped. The motorman of the Rapid Transit car was not looking; after the tramcar had already started they started and he had not seen it and by the time he saw it coming it was too close and the tramcar driver had just time to turn the mules, and the whiffletree or pole thumped against it, " (the Rapid Transit car). This witness also testified (page 44) " that three passengers on the tramcar got off from the car near Hotel street" . The driver of the tramcar, Costa, a witness for the plaintiff, identified on cross-examination a written report made by him to his company, which report was produced and filed by defendant and which reads as follows: The same witness says (page 50) that he stopped the tramcar at the mauka corner of Nuuanu street and that the defendant's car was then at a standstill on the left hand side of Nuuanu street on Hotel street, that the witness started up first, that the motorman " was looking over towards the left hand side, when I started I heard the conductor give the signal two bells, and as he gave the signal of two bells the motorman was looking over the other side" (page 51). The witness says that he then saw the motorman's hand go around on the lever and the car going ahead. He adds, (page 52), " I saw that I did not have time enough to go over and I tried to stop the car and pulled up my mules to one side and this whiffletree on the tramcar stayed sticking out that way and as the electric car came along I saw somebody get tangled with the whiffletree all along and down he went." In answer to the question, " How close to the electric car did the tramcar come?" the witness after mentioning the singletrees " they have on each tramcar" answered, " half of one length, that length was beneath the car when the horses or mules switched around" (page 52). " The mules turned right nearly around the car on the right hand side of the car, the chains were along and they switched right to one side" (page 53).
The exception to the refusal to grant the motion for a non-suit cannot be sustained.
The defendant relies mainly upon the following three points based upon its exception to the " verdict, decision and judgment as being contrary to law, against the evidence and weight of the evidence" and upon...
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