McDonald v. Toledo Consol. St. Ry. Co.

• Decision Date: 14 April 1896
• Docket Number: 339.
• Citation: 74 F. 104
• Parties: McDONALD v. TOLEDO CONSOL. ST. RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

74 F. 104

McDONALD v. TOLEDO CONSOL. ST. RY. CO.

No. 339.

United States Court of Appeals, Sixth Circuit.

April 14, 1896

It is not, in itself, negligence to start an electric street car in the ordinary manner, and in the ordinary course of the operation of such car, while a team of horses, which manifest no symptoms of fright, are being driven past it.

This is an action for personal injuries sustained by plaintiff's buggy being suddenly overturned while driving on one of the streets of Toledo, whereby he was thrown out with such force and violence as to inflict great injury upon his person. The defendant is a corporation owning and operating a line of electric street cars under franchises granted by the state of Ohio and the city of Toledo. The petition alleges that on the 13th of February, 1894, much snow fell, which formed a snow drift of about four feet deep at or near the intersection of Collingwood avenue and Cherry street, the latter being a street occupied by the tracks of the defendant company; that the company caused said snow to be removed from its tracks and piled in an irregular and conical mass, to a depth of from four to six feet, on either side of its tracks and between said tracks and the curbstones of the streets; and wrongfully, carelessly, and negligently permitted said snow to remain piled in the manner aforesaid, so that the same became packed and frozen into a hard mass, rendering said street dangerous to persons who might have occasion to drive thereon. It is then averred that at noon on the 20th of February, 1894, plaintiff, 'who was driving with a buggy drawn by two gentle horses, belonging to him,' along Collingwood avenue, in a northerly direction, turned upon Cherry street at its intersection with Collingwood avenue, so as to drive into the city by way of Cherry street; that one of the electric cars of the defendant company was standing on its track on said Cherry street, near the intersection of Collingwood, and 'that it became necessary for plaintiff to, and he attempted to, drive around said car to pass the same; that there was ample space for plaintiff to pass around said car without impediment, said mass of snow being piled some little distance in advance of said car. ' He then avers that in coming up to the car from behind he 'was not able to see and know of said mass of snow, and did not discover the same until about the time said car was started and plaintiff's horses became frightened as hereafter set forth. ' 'When plaintiff, in so driving around said car, had reached a point about opposite said car defendant's servants in charge of the car * * * wrongfully, negligently, and carelessly started said car, and the noise caused by the same and the appliances thereto frightened plaintiff's said team, so that they jumped forward and toward the side of said pavement, where the mass of snow was piled as aforesaid, and drew said buggy over upon said hardened mass of snow, * * * in such manner as to overturn said buggy, and throw plaintiff out with great force and violence,' etc., etc. He alleges that the defendant's servants in charge of said car 'knew, or by the exercise of reasonable care might have known, that the starting of said car while his horses were near the same was liable to frighten his horses, and cause them to drag plaintiff's buggy over said mass of snow and ice so placed and allowed to remain in said street, to the imminent peril of plaintiff's life and limb. ' The petition avers that he was exercising due care in driving along said street, 'and, but for the existence of said mass of snow piled in said street as aforesaid, could have controlled and stopped his team, and his buggy would not have been overturned, or any injury sustained by him. ' It is then charged that the contract ordinance under which defendant occupied the streets with its tracks required it to perform and abide by all of the general ordinances of the city of Toledo, and that one of the ordinances of said city required the said company, 'in case it became necessary to remove snow, sleet, or ice from its tracks, to distribute the same evenly over the surface of the street, so as in no manner to interfere with the free use and occupation of the same by the public, and that such removal of snow and ice from the tracks shall be carefully and diligently done. ' The defendant filed a general demurrer to this petition, which was sustained, and the petition dismissed, as stating no cause of action. In addition to the facts heretofore stated, the petition avers that Cherry street, at the point obstructed by the mass of snow and ice described, was 44 feet wide from curb to curb, and that the two tracks of the defendant company were in the center of the street, and occupied a space of 14 feet. The accumulated snow was massed in piles on both sides of these tracks, and near the curbstone. It is clearly averred that between the snow mass and the standing car there was a clear space sufficient for a driveway around the car. From this judgment, plaintiff has appealed.

Hurd, Brumback & Thatcher, for appellant.

Smith & Baker, for appellee.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, J.

LURTON Circuit Judge (after stating the facts as above).

The facts stated in the petition make a case where two acts of alleged negligence combined to bring about a catastrophe by which plaintiff sustained severe personal injuries. We will consider these acts separately. First, as to the manner in which plaintiff's horses were frightened. The averment is that the car was standing when plaintiff undertook to pass it, and that when he was alongside of the car the servants of defendant company wrongfully, carelessly, and negligently started the car, and that 'the noise caused by the same and the appliances thereto' frightened his horses, etc. No circumstance is stated indicating any unusual stoppage, or that there was anything said or done to induce plaintiff to believe that the stop was anything more than an ordinary stop to let off or take on passengers, or that the car would stand until it could pass it. The rights of both parties to the use of the street for their respective purposes were equal. Plaintiff was no more obliged to wait and follow the car than it was obliged to wait and follow him. The court may take notice of the mode in which the business of such companies is conducted, and assume that plaintiff was aware of the usual and ordinary operation of an electric street-car line. No facts are stated in support of the epithets concerning the starting of the car. Why was the start then made 'wrongful,' careless, and negligent '? No facts are stated which will enable the court or jury to answer. The noise consequent upon the starting is averred to have frightened his horses. But, if the noise was the usual and necessary noise incident to the operation of such a car, then it was not, under ordinary circumstances, either wrongful or negligent. That the plaintiff was driving alongside the car when it was started does not in itself imply that it was negligence to start the car. Undoubtedly, if plaintiff's horses had shown indications of fright before the car...