On April 23, 1892, the plaintiff, Lucius E. Watson, was driving east on Eleventh Avenue across the defendant's railway tracks on Washington Avenue, South. He had four horses and a heavy load of lumber, about 4,000 feet, which he was delivering for a lumber company. An electric interurban street car coming from the south struck his load before he could get it across and clear of the track, and he was thrown off and injured. He brought this action to recover damages, claiming the collision was due to the negligence of the motorman. That he ran the car at the rate of over twelve miles an hour, and allowed his attention to be diverted by something on the east side of the street, so that he failed to look ahead and see plaintiff and his load. The answer was a general denial. The evidence was conflicting as to the rate of speed of the car, and whether or not the motoneer saw plaintiff, or struck his gong, or applied the brake, or turned off the current.
In the charge to the jury the Judge said: "The question for you to determine is, who is to blame? If both parties are to blame, or if neither party is to blame, or if plaintiff only is to blame, he cannot recover. The law does not require that he shall look and listen in all cases before crossing a street-car track. You must decide from all the circumstances in the case how much vigilance and care a man of ordinary prudence should use, in crossing or in looking and listening before he crosses, and in continuing to look and listen as he crosses, these street-car tracks under the circumstances.
A man with a heavy load and four heavy horses should use more care and vigilance than a man driving a shorter team and a lighter vehicle. If you find plaintiff was not to blame, that he used a reasonable and ordinary amount of care and vigilance in looking for cars, such as he should have used under the circumstances, then you must determine whether or not the defendant was to blame, through its driver. It is the duty of the defendant also to use reasonable care, to see that it does not injure persons, passing over its tracks; it is the defendant's duty to use reasonable care to give warning of its approaching cars when it sees persons about to cross or approaching the crossings of its street-car track, or where they are likely to cross. It is the defendant's duty to keep its cars under reasonable control at such times; and it is its duty to run at a reasonable rate of speed through the crowded streets where there is a great deal of public travel. You must decide whether the driver of this car did give reasonable warning, when he saw this man about to approach this crossing, or about to cross these tracks; whether he used reasonable care in keeping his car under his control at that time; whether he was running at an improper or dangerous rate of speed. A great many accidents and injuries occur in this world where nobody is to blame, and the fact that the street car struck this man is no reason why he should recover from the company, unless it was the fault of the defendant company, and not his fault."
The jury retired and were out all night. The next morning they came into court and reported that they could not agree. The judge sent them out again, saying: "It is your duty, gentlemen, to use all reasonable efforts to come to an agreement in this case. We have taken three days to try it. The fact that it is a difficult case is no reason why you should not use every honest effort to come to an agreement, because the next jury will have to do the same thing; and if you don't agree, the next one will have to try it. It makes expense to the county and to the parties. It is your duty to use every honest and reasonable consideration in attempting to come to an honest and fair agreement."
The jury retired, and soon after returned into court, and rendered a verdict for plaintiff, and assessed his damages as $6,000. The defendant made, settled and filed a case, containing all the evidence
and the charge to the jury, and its requests to charge, and its various exceptions to the rulings, and moved the court to set aside the verdict and grant a new trial. This application was denied, and it appeals.
Some of the assignments of error mentioned in the opinion were as follows:
"Third. The District Court erred in denying the motion of appellant to direct a verdict for the defendant.
"Fourth. The District Court erred in holding that the evidence given on the trial sustained the negligence alleged in the complaint.
"Fifth. The District Court erred in holding that the evidence given on the trial did not show contributory negligence on the part of the plaintiff.
"Eighteenth. The District Court erred in denying the defendant's motion for a new trial.
"Nineteenth. The District Court erred in holding that the verdict of the jury was not contrary to law.
"Twentieth. The District Court erred in holding that the verdict of the jury was justified by the evidence.
"Twenty-first. The District Court erred in holding that the verdict of the jury was justified by the evidence, and the weight thereof.
"Twenty-second. The District Court erred in holding that the evidence did not show contributory negligence on the part of the plaintiff.
"Twenty-sixth. The verdict of the jury is not justified by the evidence.
"Twenty-seventh. The verdict of the jury is against the evidence and the weight thereof."
Koon, Whelan & Bennett, for appellant.
Merrick & Merrick and H. H. Merrick, for respondent.
GILFILLAN, C. J.
The witness Walden showed himself competent to state within what distance an electric railway car going at the rate of fourteen miles per hour (at which rate some of the evidence indicated the car which injured plaintiff was going) can be stopped. He had been conductor on such a car two months, must have seen such cars stopped many hundreds of times, when going at as high a rate of speed as they ordinarily attain, and was at the time conductor on the car which did the injury. It must be presumed that he was an ordinarily observant man, and, if so, he must have been able to express a pretty accurate opinion on the point.
The evidence made a fair case for the jury, both as to the negligence of the defendant and the contributory negligence of the plaintiff; so that the 3d, 4th, and 5th assignments of error are not well taken. And it is the same with the 18th to the 22d, both inclusive, and the 26th and 27th.
Whether, when a jury comes into court, and reports that it cannot agree, it shall thereupon be discharged, or shall be again sent out to deliberate further upon the case, is in the discretion of the trial court; and, before this court could order a new trial because of the jury having been sent out again,...
