RAILROAD AND CORPORATION

REPORTS.

SHEA V. ST. PAUL CITY RY. Co.

(Supreme Court of Minnesota, July 7, 1892.)

1. ELECTRIC STREET RAILWAY. COLLISION WITH HACK. NEGLIGENCE OF COMPANY. Plaintiff, while crossing the track of defendant, a street railway company of St. Paul, was run into by a car and injured. The evidence tended to show that the car was going at an unusual rate of speed-fifteen to twenty miles an hour-that the speed was unchecked until after the collision occurred; that it was running on a down grade, in a populous part of the city; that no signal was given until the car was within forty to sixty feet of the crossing, and that the corner buildings obscured the track until one was within a short distance of it. Held, sufficient to show negligence on the part of the defendant. 2. CONTRIBUTORY NEGLIGENCE. DUTY TO LOOK UP AND DOWN TRACK BEFORE CROSSING STREET RAILROAD. The degree of care required at the crossing of a highway and an ordinary steam railroad is not the test of care required in crossing the track of a street railroad on a public street. Hence the rule in the former case that one approaching the crossing must look up and down the track before attempting to cross is not necessarily applicable to the latter. The failure to do so is not, as a matter of law, negligence.

Henry J. Horn, for appellant. D. F. Peebles and Erwin & Wellington, for respondent.

MITCHELL, J. Action to recover damages for injuries caused by the alleged negligence of the defendant. The plaintiff was driving a hack along Eighth street, in the city of St. Paul, going VOL. VII-1

east. As he approached the intersection of Eighth and Jackson streets, (which cross at right angles,), an electric street car of defendant was approaching the same point from the north, running down Jackson street. As plaintiff was crossing the railway track on the intersection of the two streets, the car collided with the hack, causing the injuries complained of. The plaintiff claimed that the defendant was negligent in running the car at an unusual and dangerous rate of speed, and in not giving timely signals of its approach to the street crossing. The defendant denied these allegations of negligence on its part, and alleged that the injuries were caused by plaintiff's own negligence, especially in driving upon the track without looking for approaching cars. Most of defendant's assignments of error, as well as of his argument, is to the point that the verdict was not justified by the evidence. An examination of the record, however, satisfies us that upon the questions both of defendant's negligence and of plaintiff's contributory negligence the evidence made a case for the jury. There was evidence reasonably tending to prove that the car was being run at an unusually rapid rate of speed, (from fifteen to twenty miles an hour according to several witnesses;) that the speed was unchecked until after the collision occurred; that it was running on quite a heavy down grade, where it is more difficult to check the speed; that no signal of its approach was given until it was within 40 to 60 feet of the crossing; that this was in a populous part of the city, and the streets in question, which are rather narrow, much used thoroughfares of travel; and that buildings on the corners necessarily obstruct the view from one street up and down the other, until a person is within a comparatively short distance of the crossing. It is hardly necessary to say that upon such a state of facts, if found to be true, the jury would be justified in finding that the defendant was negligent. Defendant's main contention, however, is that the evidence conclusively shows that plaintiff was guilty of contributory negligence. There was evidence tending to show that he was driving down Eighth street at a slow trot, say five miles an hour; that he heard no signals of the approach of cars; that on reaching the crossing he looked south, down Jackson street, and saw no cars; that he then turned his head to look the other way, (by this time his horses' heads. were just about over the nearest rail of the car track,) and saw a

car some 60 feet distant, coming down; that he immediately attempted to stop his horses, but finding that he was unable to do So, owing to their restiveness, he struck them with the whip, and attempted to urge them rapidly across the track, but before he succeeded. the car struck the hind part of the vehicle, causing serious injuries to it as well as to himself. The evidence shows that if, after he got beyond the obstruction of the building on the corner, he had looked northward as well as southward, he could have seen the approaching car in time to have stopped his team before getting in dangerous proximity to the car track, and his failure to do so is claimed to be negligence per se, under the rule, so often applied by this and other courts, that it is the duty of a traveler on approaching a railroad crossing to look both ways for approaching trains before attempting to cross the railroad track. The fallacy in this, which runs all through counsel's argument, is in assuming that in the degree of care required at the crossing of a highway and an ordinary steam railroad is the test of the care required in crossing the track of a street railroad on a public street. The two cases are not alike. In the first place, street cars do not, or at least ought not to, run at the same rate of speed, are not attended with the same danger, and are not so difficult to stop quickly, as those of an ordinary railroad. In the next place, the cars of a street railway have not the same right to the use of the track over which they travel. The ordinary railroad is itself a highway, and has a proprietary interest in and to its right of way, even where the public have an easement for highway purposes over the same ground. Public necessity requires that the rights of a traveler on a highway across an ordinary railroad should be, to a certain extent, subordinate to those of the railroad company. But a street railway is not a highway. A street railway company has a mere right to use the street in common with the public generally. It is merely in aid of the identical use for which the street was created, and not a new and independent one, and it is on that very ground that a street railway company is not required to pay compensation to the owners of abutting property. Street cars are in the main governed by the same rules as other vehicles on the street, and their owners have only an equal right with the traveling public to use the street-they have no proprietary right to any

part of the street. Of course, there are some modifications of this general rule growing out of the necessities of the situation. For example, as street cars run on a track, they cannot turn out to one side of it. Hence what is called "the law of the road" does not apply to them. It would be inexpedient to attempt any complete enumeration of the modifications of or exceptions to the general rule of equality of rights between street cars and other vehicles used on a street. But it is certain that there is no modification or exception that relieves a street railway company from exercising, at least, as much care to avoid collisions with other vehicles as the owners of the latter are required to exercise in order to avoid collisions with the cars. Defendant's requests to charge, the refusal to give which is assigned as error, are framed upon the theory that the street railway, has such a proprietary and superior right to the part of the street where its track is laid that the duty of taking care to avoid collisions rests exclusively upon other "wayfarers." For example, the second request was that "it is the duty of wayfarers using the street where railway tracks are laid to keep out of the way of trains of cars which are being operated thereon;" and the third was that "the conductor or trainmen in charge of such train or car upon the street has a right to assume that wayfarers will keep out of the way of approaching cars which are being operated upon the track of the railway." These requests are framed upon an erroneous theory as to the respective rights and duties of street railway companies and others in the use of the street, and were properly refused. And, for the reasons already suggested, the rule that one approaching a railroad crossing upon a highway must. look up and down the track before he attempts to cross is not applicable, as a hard and fast rule, to one who attempts to cross a street car track upon a public street. The failure to do so is not, as a matter of law, and without regard to circumstances, negligence. Notwithstanding plaintiff's failure to do so as soon as he might have done, the question of contributory negligence was, under the circumstances, one for the jury. Beach, Contrib. Neg. 290; Shear. & R. Neg. § 462; Lynam v. Railway Co., 114 Mass. 83; Railway Co. v. Robinson, 127 Ill. 1, 18 N. E. Rep. 772; Shea v. Railway Co., 44 Cal. 414; Adolph v. Railway Co., 76 N. Y. 530. Counsel argues in his brief some matters that are not

assigned as error, and which, for that reason, we cannot consider. What we have already said covers all the points in the case, worthy of special notice, which are raised by sufficient assignments of error. Order affirmed.*

STREET RAILROADS-INJURY TO PERSONS UPON OR CROSSING TRACK-RECENT DECISIONS.

1. Collision with carriage crossing track-negligence of company-evidence.-While plaintiff was attempting to drive across a street-car track, her carriage was struck by defendant's car, which was then going down grade. Witnesses testified that the car-driver had time to stop the car after plaintiff drove on the track had he not looked down a cross-street, but it appeared that when he crossed this street no one was on the track, or offering to cross in front of him, and it was not shown that his attention was unnecessarily, or for an unreasonable time, withdrawn from the track, and the accident occurred despite his efforts to stop, though he applied the brakes at once. Held, that there was not sufficient evidence of negligence on part of defendant to warrant submission of that question to the jury. Citizens' Passenger R. Co. v. Thomas, 132 Penn. St. 507; 19 Atl. Rep. 286.

2. Same-contributory negligence.-Plaintiff knew that a car was coming, and was near, having heard bells, but could not see it until she turned her horse on the track; and she testified that she then thought there was time to cross. The car was moving at the usual rate on a down grade, and plaintiff's horse was moving at a slow walk. Held, that plaintiff was guilty of contributory negligence barring recovery. Ibid.

3. Collision with ladder truck-contributory negligence.-Plaintiff, a fireman, while riding rapidly to a fire on a ladder truck, plac.d one leg between the rounds of a stack of ladders for the purpose of holding on while adjusting a necessary part of his equipment, which he had not time to do before starting. A collision occurred with a horse-car of defendant, by which the ladders were forced suddenly back, injuring the leg. Held, a request to charge the jury that plaintiff was not in the exercise of due care, and cannot recover, was properly refused. Magee v. West-End Street R. Co., 151 Mass. 240; 23 N. E. Rep. 1102.

4. Collision with dray stopped on side of street-miscalculation as to room to pass.-In an action by the driver of a dray against a street railroad company for personal injuries, it appeared that plaintiff stopped his dray at what he thought was a safe distance from the car track, and was putting a blanket on his horse, when he was struck by defendant's car. The driver of the car, who was driving a "fair gait," thought that he had room enough to pass plaintiff and his dray. Held, that the accident being caused merely by miscalculation as to distance on the part of both plaintiff and the car driver, a nonsuit was properly entered. Patton v. Philadelphia Traction Co., 132 Penn. St. 76; 20 Atl. Rep. 682.

5. Cable road-collision with vehicle on track-evidence of negligence.—Where plaintiff's evidence tends to show that the gripman saw

* Reported in 52 N. W. Rep. 902.