Taxi Service Co. v. Phillips

• Decision Date: 19 May 1911
• Docket Number: 926.
• Citation: 187 F. 734
• Parties: TAXI SERVICE CO. v. PHILLIPS.
• Court: U.S. Court of Appeals — First Circuit

187 F. 734

TAXI SERVICE CO. v. PHILLIPS.

No. 926.

United States Court of Appeals, First Circuit.

May 19, 1911

George L. Mayberry (Warner, Warner & Stackpole, on the brief), for plaintiff in error.

Charles C. Barton, Jr. (Barton & Barton, on the brief), for defendant in error.

Before COLT, Circuit Judge, and ALDRICH and BROWN, District Judges.

ALDRICH District Judge.

A party injured by a taxicab, at a street crossing a little westerly of the junction of Commonwealth avenue and Beacon street sought to recover damages for injuries sustained. There was a trial by jury; and the questions for consideration here are first, whether the Circuit Court should have directed a verdict for the defendant; and, second, whether the question of plaintiff's due care was properly submitted to the jury.

We think it quite clear that the court was right in refusing to direct a verdict for the defendant upon all the evidence, and we see no occasion to discuss that proposition.

The assignments of error which relate to the other question present more difficulty. The position of the plaintiff in error is that the presiding judge practically disposed of the question of the plaintiff's due care by saying, with respect to the plaintiff's conduct just before and at the time of the injury, that 'if the plaintiff here, when on the sidewalk, looked up and down the street and saw nothing approaching of a dangerous character, and then walked in the usual quiet manner across the street, looking as he went across the street for what he could see, incidentally looking, not stopping to look, but looking incidentally and turning his head as he went along, as a man naturally does who goes along in an ordinary walk, then he was not at fault'; and that the question of fact, therefore, as to the plaintiff's care was not submitted to the jury. The argument in support of this contention has considerable weight; but, on the whole, we view this remark as having reference to the look and listen rule as inapplicable, and as explanatory of what was in effect a ruling that, if the plaintiff did these things, he was not at fault as a matter of law. Still, if the case were one which upon its merits was at all doubtful, or if it could be seen that there was any possible chance that the result would have been different upon more specific instructions on the line of such care as men of ordinary prudence would exercise in a similar situation, it is not at all certain what our conclusion would be; and, while we in no sense intimate that a fundamental element of a plaintiff's case like that of due care is one to be controlled by the doctrine of harmless error, we are, under the circumstances, disposed not to deal with this particular phase of the instructions upon strict and technical considerations.

It must be observed that the particular instruction, against which complaint is made as not submitting the question of fact to the jury was given in connection with the question whether the plaintiff was bound to look again as a matter of law.

As shown by the record, the plaintiff left the steps of the Buckminster Hotel, and, as he approached the sidewalk, saw an in-bound electric car standing on the southerly track, with its rear end just east of the street crossing, and, after looking and discovering nothing more except an out-bound car on the northerly track, approaching from the east and a safe distance away, undertook to cross in the rear of the standing car; and, as he passed the car and stepped toward the northerly track, he was struck by a rapidly moving west-bound taxicab, which had for the moment appropriated the northerly street car track instead of keeping to that part of the street between the car track and the sidewalk.

The point of the defendant below was that the law required the traveler across the street to look to the east after passing behind the standing car which had obstructed his view, and that in not doing it negligence resulted as a matter of law. The learned judge, while dealing with this phase of the situation, and while explaining to the jury that there was no absolute rule of law, like that which applies to railroad crossings, a place of universally recognized danger, where common prudence requires that travelers on the highway should use the precaution of looking, which applies itself as between automobile highway travelers and pedestrians at highways or street crossings, and therefore that the question of fact was at large, to be determined upon the usual rules governing questions of fact, made the remark of which complaint is made, which, read in connection with what preceded it, must be accepted as meaning, and we think on the whole that the jury must have so understood it, that if after looking at the sidewalk the plaintiff below walked in the ordinary way, turning his head as...