Rhymes v. Jackson Electric Ry., Light & Power Co.

• Decision Date: 16 January 1905
• Citation: 37 So. 708,85 Miss. 140
• Court: Mississippi Supreme Court
• Parties: GEORGE W. RHYMES v. JACKSON ELECTRIC RAILWAY, LIGHT AND POWER COMPANY

37 So. 708

85 Miss. 140

GEORGE W. RHYMES v. JACKSON ELECTRIC RAILWAY, LIGHT AND POWER COMPANY

Supreme Court of Mississippi

January 16, 1905

FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge.

Rhymes the appellant, was plaintiff, and the Street Railway Company the appellee, was defendant in the court below. From a verdict, predicated of a peremptory instruction, in defendant's favor and a judgment thereon, the plaintiff appealed to the supreme court.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Harris Powell & Harris, for appellant.

It would seem that a bare statement of the facts would be a sufficient argument to show that the learned court below erred and that at best the case was one for the jury. The defendant had no more right to the street than the plaintiff. Joyce on Electric Law, sec. 570; Croswell on Law of Electricity, sec. 740 et seq.

In using the street under the facts and circumstances shown in this case, vigilance was not only a moral, but a legal, duty of the defendant.

It might be that in sparsely settled portions of the city, or where the streets were clear of vehicles and pedestrians, it would not be negligence to run at a speed of eight miles an hour without sounding a gong or keeping a lookout or keeping hold of the brake, even though it were defective; but surely, to do these things when the street was filled with people, with a wrecked wagon within three feet of the track, with the attention of the people directed to the wreck and their hearing dulled by the roar of many voices talking all at once, was gross and reckless negligence amounting to willful wrong. Surely the motorman ought to have seen that the attention of the crowd was diverted by the wreck and their hearing impeded by the assembled voices; surely he ought to have known as a matter of common knowledge that excited crowds sway back and forth; certainly he ought to have seen the appellant between the track and the wreck in less than three feet of the track, with his back turned to the track, busily engaged in loading the vehicle, with the crowd gathered around him, and that it would be a close shave to pass him; or, if he did not see appellant thus engaged, he must have known that some one was so engaged and could not be on the lookout for danger. Under such circumstances the highest care is due. Montgomery v. Lansing Elec. Ry. Co., Mich., 1894 (5 Am. Elec. Cas., 471); Joyce on Electric Law, sec. 575; Croswell on Law of Electricity, sec. 741, note 1, et seq.

The motorman, presumably, as he approached the crowd, was cool and collected, and could take in the whole situation; while appellant, with his hands and eyes upon his work and the roar of the crowd in his ears, had no such advantage. We submit that under these circumstances to take one step backward as he finished his job before looking up was not negligence, but the same thing would have been done by the average prudent citizen similarly situated; or, if this was negligence, still the company's servants were guilty of such gross negligence as that mere negligence would be no defense. Railroad Co. v. Brown, 77 Miss. 338; Stevens v. Railway Co., 81 Miss. 195.

The use of the defective brake under the circumstances surrounding this case was in itself, and of itself, gross negligence. Joyce on Electric Law, sec. 465; Uggly v. Street Ry. Co., 160 Mass. 351 (4 Am. Elec. Cas., 389); Thompson v. Rapid Transit Co., 40 L. R. A., 172.

Williamson & Wells, for appellee.

We are fully aware of the fact that the rule as to the care required of a foot passenger crossing a steam railroad track, that he must "stop, look, and listen, " cannot be applied in all of its strictness, or applies only in part, to pedestrians crossing street railroad tracks at intersecting streets, especially in crowded cities, it being the duty of railway companies to have the cars under control as they approach such crossings, and the pedestrian having the right to assume that those operating the cars will slow down on approaching a crossing. But, even under such circumstances, there is always the duty to look for an approaching car, and, if the street be obstructed, to listen and, in some instances, to stop, and a plaintiff must be held to have seen that which is obvious; so where it appears that the plaintiff, in crossing a street, is struck by a street car just as she stepped upon the track, the view of which was unobstructed, the court properly instructed the jury that she was guilty of contributory negligence. McCauley v. Phil. Traction Co., 13 Pa. Sup. Ct., 354.

In many jurisdictions it is held that one attempting to cross a street railway track on foot is bound to look in both directions for an approaching car, and to listen, if there is any obstruction, and that his neglect to do so is negligence per se. 150 Pa. St., 180; 44 La. Ann., 509; 49 La. Ann., 1302; 201 Pa. St., 247.

Even in those jurisdictions where it is held that it is not the absolute duty of the pedestrian to look and listen in every instance where he undertakes to cross the tracks of a street railroad, it may still be determined that as a matter of fact, in some situations, the exercise of ordinary care and prudence would require the traveler to look and to listen before crossing the tracks of a street railroad. 95 Me. 115; 60 N. J. L., 312; 110 F. 496; 74 N.Y.S. 599; 177 Mass. 416.

This duty, when required either as a matter of law or as a matter of fact, should be exercised when and where it will be reasonably certain to effect its purpose; neither will the misconduct of the railway company excuse the non-performance of this duty. 108 Wis. 593; 110 Wis. 331; 53 A. 433; 59 Mo. App., 668; 60 Minn. 119.

One is, as a matter of law, guilty of such contributory negligence as will preclude recovery for injuries sustained by being struck by a street car where he neglected when two or three feet from the track to look in the direction of an approaching car in plain view, although he did look when about twelve feet from the track, but could not see the car because his view was obstructed by a horse and covered wagon standing backed up to the curb of the street. Doherty v. Detroit Ry., 118 Mich. 234; Henderson v. Greenfield, 172 Mass. 542.

One walking at a place between street crossings, behind a wagon driven on one of two street railway tracks, which prevented him from seeing a car approaching on the other track, is guilty of such contributory negligence as will prevent recovery, in stepping upon the other track without looking to see whether a car is approaching on the same. Bethel v. Street R. Co., 15 Ohio C. C., 381.

One who attempts, in the middle of a block, to cross a street railway track immediately behind a car, without looking for a car coming from the other direction on the further track, is guilty of such negligence as will preclude recovery for injuries sustained by collision with such car. Burgess v. Salt Lake R. Co., 53 P. 1013.

One who attempted to run diagonally across an electric railway track immediately in front of an approaching car, which he could have seen if he had looked, has been held guilty of such contributory negligence as will prevent a recovery for his death. Doller v. Union R. Co., N. Y. Supp., 770.

A person exercising due care in looking for approaching vehicles has a right to cross a city street at any point without being chargeable with contributory negligence, yet he is chargeable with negligence if he sees an approaching car, or could have seen one by the exercise of reasonable care, and does not take proper steps to avoid it. McClain v. Brooklyn City R. Co., 116 N.Y. 459; Adolph v. Central Park R. Co., 76 N.Y. 530; Davenport v. Brooklyn City R. Co., 100 N.Y. 632.

One who attempts to cross a street car track in front of a car running seven miles an hour, when it is only a few feet distant, is guilty of...