Underwood v. Old Colony St. Ry. Co.

• Decision Date: 15 July 1911
• Citation: 33 R.I. 319,80 A. 390
• Parties: UNDERWOOD et al. v. OLD COLONY ST. RY. CO.
• Court: Rhode Island Supreme Court

80 A. 390

33 R.I. 319

UNDERWOOD et al.

v. OLD COLONY ST. RY. CO.

Supreme Court of Rhode Island.

July 15, 1911.

Blodgett, J., dissenting.

Exceptions from Superior Court, Newport County; George T. Brown, Judge.

Action by Elizabeth E. Underwood and another, executrix, against the Old Colony Street Railway Company. Verdict for plaintiffs, and defendant brings exceptions. Exceptions overruled.

See, also, 31 R. I. 253, 76 Atl. 766.

Harvey A. Baker and Waterman, Curran & Hunt, for plaintiffs.

Gardner, Pirce & Thornley (William W. Moss and Charles R. Haslam, of counsel), for defendant.

SWEETLAND, J. This is an action of trespass on the case for negligence brought by the executrix of the will of William Bailey, late of the town of Middletown, deceased, against the Old Colony Street Railway Company, to recover damages for the death of the testator, which they allege to have been caused by the negligence of the defendant without negligence on his part contributing thereto. The case was tried in the superior court before Mr. Justice Brown and a jury, and resulted in a verdict for the plaintiff for $5,000. The case is before us upon exceptions to certain rulings of said justice upon the admission and exclusion of testimony, to certain portions of the charge of the justice, to the refusal of the justice to give certain instructions to the jury as requested by the defendant, and to the decision of the justice denying the defendant's motion for a new trial.

It is admitted that the buggy of Mr. Bailey, driven by him, was run into by one of the defendant's cars, as he was crossing its track, upon the highway, at the location of a driveway into the grounds of the residence of Mr. Bailey in said town of Middletown. At this point the highway runs about north and south. The residence of Mr. Bailey was to the east of the highway. The track of the defendant is on the extreme easterly side of the highway. Parallel and a few feet to the west of the defendant's track is that of another street railway company. The part of the highway usually traveled by wagons and horses lies to the west of both tracks. Four hundred and eighteen feet north of said driveway is the southerly end of a curve in the defendant's track. This curve is 355 feet long. Before Mr. Bailey turned to go into the driveway, he was proceeding south upon the part of the highway to the west of both street railway tracks. The car which struck the buggy was also going south. When Mr. Bailey first indicated that he was going to cross the defendant's track, by turning to cross diagonally the track of the other railway company, the distance of the car from the buggy was estimated by different witnesses to the accident at various figures, from 500 feet, as testified to by one of the plaintiff's witnesses, to about CO or 75 feet, as testified to by the conductor and motor-man of the car. It, however, appeared that at a former trial of the case, held about nine months after the accident, the motorman had testified positively that he saw the buggy at the driveway when the car was about 400 feet away. When the car came out of the curve, and before the motorman tried to check the speed of the car, it was going at the rate of 15 or 20 miles an hour. The air brake upon the car was out of order and could not be used, which fact was known to the motorman. It took longer to stop the car with the hand than with the air brake. The left hind wheel of the buggy was struck by the overhang of the car just as said wheel had gone over the east rail of the defendant's track. The buggy was carried by the car about 70 feet south of the driveway before the car was stopped. Mr. Bailey was thrown from the buggy and injured. From the effects of these injuries he died 15 days later. He was 85 years old at the time of his death. The top of said buggy was up and the sides were closed. It is apparent from the testimony that Mr. Bailey did not look in the direction of the approaching car before he drove upon the track; that he did not look up the track while he was crossing it; that he did not urge forward his horse while on the track; and that he apparently was ignorant of the approach of the car.

We find no merit in the exceptions of the defendant taken to the rulings of the justice admitting and excluding testimony.

The following instruction was given to the jury and excepted to by the defendant: "The deceased would have the right of way, if, proceeding at a rate of speed, which under the circumstances of the time and locality was reasonable, he reached the point of crossing in time to safely go upon the track in advance of the approaching car; the latter being sufficiently distant to be checked and, if need be, stopped before it should reach him."

There is no merit in this exception. The instruction is a correct statement of the rule in this state as to the right of way of a driver who desires to cross the track of a street railway. It is unconnected with the rule that, before a driver attempts to cross an electric car track, he shall look and listen for an approaching car.

Ordinary care for one's safety dictates that before entering upon a place of danger a person shall exercise his senses. But, if the circumstances are such that one may cross without negligence if he looks, crossing does not become a negligent act, constituting contributory negligence, because he fails to look before he starts.

The case of Beerman v. Union R. R. Co., 24 R. I. 275, 52 Atl. 1090, where the rule of the right of way, embodied in the instruction of Mr. Justice Brown to the jury, is enunciated, also states as the duty of a driver about to cross a street railway track that he shall look both ways immediately before crossing the track. In the facts of that case it clearly appeared that the plaintiff did not have the right of way and should not have attempted to cross, that if he had looked both ways he would have seen his danger, and that his negligence in failing to look was the proximate cause of his injury. We do not consider the effect of the Beerman Case to be that the right of way which a driver may have under the first rule is taken away because he has failed to look and see that he has it. The case of Price v. Rhode Island Co., 28 R. I. 220, 66 Atl. 200, 125 Am. St. Rep. 736, holds that: "The obligation to look and listen when approaching a track upon which cars are run is so well established as the duty of a prudent person that a neglect of it must be held to be negligence in law." By this statement it was not intended to declare that a lack of prudence shall be charged against a plaintiff if it does not at all contribute to the injury complained of. If one is held to have seen an obvious danger whether in fact he has seen it or not, in like manner one's action should be held to be without negligence when in the circumstances it is justified, although those circumstances were not investigated with the care that prudent men ordinarily employ. If one has the right of way, in the absence of some special circumstance which would indicate to a prudent man that he should not exercise it, he may do so without negligence.

In the case at bar there was testimony before the jury which would warrant them in finding that, in accordance with the rule stated in the Beerman Case and in the instructions of Mr. Justice Brown, the deceased might prudently go upon the track for the purpose of crossing to his driveway. The fact that he did not look before he started to cross would not take away the right. We do not intend by this that, if the driver has the right of way, he is not required to exercise reasonable care for his own safety while in the act of crossing, but that his right of way is not dependent upon the fact that the driver looked up and down the track immediately before going upon it.

The defendant contends that the rule contained in the instruction of the justice has no application to the situation in this case, as the deceased was crossing to a private driveway and not at an intersecting street or road. Such distinction cannot properly be drawn. The motorman was bound to know of the existence of this driveway from the part of the highway usually traveled across the defendant's track up to Mr. Bailey's premises. There was the same right in Mr. Bailey to cross as at an intersecting street or road, and the same rule as to precedence between Mr. Bailey and the car is applicable to this situation.

The defendant excepted...