
    The Steubenville & Wheeling Traction Co. v. Brandon, Admr.
    
      Omission by one about to drive horse and wagon — Across street railway track- — To look for approaching car — Not negligence, when — Care required of railway company — Rights of respective parties — Law of negligence.
    
    1. Omission by one about to drive a horse and wagon across a street railway track constructed and operated upon a public street in a much frequented part oí a city, to look for the approach of a car is not, in all cases and as matter of law, 'negligence which will defeat a recovery for injuries received by such driver in a collision between the wagon and a car of the railway company, his duty being to exercise ordinary vigilance to avoid a collision, and whether he has exercised such vigilance or not depends upon the circumstances of each particular case.
    2. A street railway company operating cars on a public street in a much frequented part of a city has not the right to operate its cars at street crossings at a dangerous rate of speed, without warning of approach, thus throwing all the burden of care and watchfulness to avoid accidents upon drivers of smaller vehicles seeking to cross, but its duty is to maintain proper control of the car in order to be able to stop or check the same if necessary to avoid accident. The driver of a horse and wagon at such street crossing has equal rights with the company in the street and to use the crossing, the driver in crossing making due allowance for the fact that the car runs upon a fixed track, and, by reason of its greater weight, being less easy to check or stop than the smaller vehicle.
    3. Where the motorman of a street car being operated on a public street in a much frequented part of a city, discovers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track at a street crossing, in front of such car, it is the motorman’s duty to use ordinary vigilance to stop or check the car in order to avoid a collision; and the fact that such driver'may have omitted to look for the approach of the car will not, as matter of law, defeat his right to recover for injury from a collision with such car if the motorman has not used such vigilance.
    (No. 12626
    Decided November 26, 1912.)
    Error to the Circuit Court of Jefferson county.
    The action below was by the administrator of William Brandon, deceased, against The Steuben-ville & Wheeling Traction Company, to recover for the alleged unlawful killing of the deceased occasioned by a collision between a car of the company and an express wagon in which Brandon was at the time riding, the accident occurring at a street crossing. By direction of the court, given at the conclusion of the plaintiff’s evidence, the jury returned a verdict for the defendant, and judgment followed. This judgment was reversed by the circuit court and the cause remanded for a new trial. Error is prosecuted to this court by the Company. Further facts are stated in the opinion.
    
      Messrs. Erskine & Smith, for plaintiff in error.
    We do not believe that this court held, or ever intended, that the opinion of the majority of the court in the case of Cincinnati St. Ry., Co. v. Snell, 54 Ohio St., 197, should be construed to mean that as a matter of law a person would not be guilty of contributory negligence in driving a horse on a trot attached to a covered wagon upon a street railway track without looking or listening, when by the exercise of either of these senses the injury could and would have been avoided. To hold otherwise would in effect be giving the driver or pedestrian a superior right to the crossing, and would impose on the railway company the entire burden of preventing injury and accident. Every crossing would be made at the peril of the railway company.
    In view of the consideration given to the Massachusetts decisions by this court in the Snell case, we have taken pains to examine the later cases in that state as they might apply to the question herein presented. Hall v. West End St. Ry. Co., 168 Mass., 461; Kelly v. Wakefield & S. St. Ry. Co., 175 Mass., 331; Hurley v. West End St. Ry. Co., 180 Mass., 370; Itzkowitz v. Boston El. Ry. Co., 186 Mass., 142; Dunn v. Old Colony St. Ry. Co., 186 Mass., 316; Quinn v. Boston El. Ry. Co., 188 Mass., 473; Blackwell v. Old Colony St. Ry. Co., 193 Mass., 222; Saltman v. Boston El. Ry. Co., 187 Mass., 243.
    To the same effect are the decisions in other states which do not hold it negligence per se to cross a street railway track without looking or listening. Stafford v. Chippewa Val. Elec. Rd. Co., 110 Wis., 33; Doherty v. Detroit Citz. St. 
      
      Ry. Co., 118 Mich., 209; Ries v. St. Louis Transit Co., 179 Mo., 1, 77 S. W. Rep., 734; Secs. 1444, 1445, White’s Supp. to Thompson on Negligence; Goldkranz v. Met. St. Ry. Co., 85 N. Y. Supp., 667; Riedel v. Wheeling Trac. Co., 63 W. Va., 523; Timler v. Phila. Rapid Transit Co., 214 Pa. St., 475; Clark’s Accident Law, Sec. 106.
    
      Mr. A. C. Lewis and Mr. J. O. Naylor, for defendant in error.
    The allegation of the petition that the car was being “negligently, carelessly and recklessly run,” is tantamount to an allegation that it was run in “wanton disregard of all consequences.” Gustafson v. Chicago, R. I. & P. Ry. Co., 128 Fed. Rep., 85; Harrington v. Los Angeles Ry. Co., 140 Cal., 514.
    What proof is there that William Brandon was guilty of contributory negligence? Flis horse was in a jog or slow trot. He had a right to assume that if a car should then chance to be approaching the crossing in question it would not be running at a high and dangerous speed, and not at the unusual speed at which it was in fact running on this occasion. Pie was not required to assume the risk of the motorman’s negligence in this respect. Cincinnati St. Ry. Co. v. Snell, 54 Ohio St., 197; Cincinnati Trac. Co. v. Jennings, 7 N. P., N. S., 463, 79 Ohio St., 435; P. C. C. & St. L. Ry. Co. v. Kelly, 5 C. D., 662, 53 Ohio St., 667; L. S. & M. S. Rd. Co. v. Schade, Admr., 8 C. D., 318, 57 Ohio St., 650.
   Spear, J.

The petition charged that at the time of the collision the car, a large passenger car, was being operated on the street negligently, carelessly and recklessly and at a high and dangerous rate of speed; that the motorman was not on the lookout for persons and vehicles approaching the street crossing; that he did not have the car under proper control; that he negligently failed to sound the gong or give other timely or any warning of the approach of the car toward the street crossing, and had the motorman approached the crossing with his car under proper control as he might have had it, he could and would have seen the wagon in ample time to have stopped or so checked the car as to have prevented a collision; and that, when finally seeing as he did the approach of the horse and wagon and that they were about to be driven across the track, and upon seeing as he did the perilous position Brandon was in because of the high rate of speed of the car, the motorman could have stopped or checked the car by the exercise of ordinary care and thus averted the injury, but said motorman nevertheless carelessly, negligently and recklessly failed to exercise such care.

The answer was a general denial and the plea of contributory negligence, which was denied by the reply.

The question presented, therefore, was whether or not the plaintiff’s evidence sufficiently supported his case to give him a right to go to the jury. The court of common pleas was of opinion that it did not; the circuit court held that it did. We are of opinion that, in this difference of opinion, the circuit court was right. The accident occurred about the middle of the forenoon of November 28, 1907, at the corner of Washington and Third streets in a much-frequented part of the city of Steubenville. Each street is sixty feet in width. The car track was in the middle of Third street. The car was approaching the crossing from the south at a rapid rate of speed, one witness fixing it at fifteen miles an hour, and the wagon was approaching on Washington street from the west. It was a bright, clear day. The deceased, with a companion (one Maxwell), a young man, was driving a covered one-horse express wagon, loaded with divers articles of merchandise. Ele was driving at a very slow jog trot, scarcely above a walk. At that point, and approaching the crossing, there is a slight down grade in the direction the wagon was going'. From any point on Third street in the neighborhood of the crossing a car could have been seen several hundred feet distant. Third street for some distance both ways from the crossing, was built up with business places and residences. The horse’s head could have been seen by the motorman, had he been looking in that direction, as soon as it appeared at the junction of the two streets. The horse had gotten over the car track before the impact and thus escaped serious harm. The car struck the wagon about the front wheels. The wagon was thus loosened from the horse and- was shoved sideways and in front of the car. The car was stopped in about three lengths of itself and the wagon in about half that distance. Brandon was thrown under the car and horribly mangled and instantly killed. The companion was thrown up so that the car passed under him and he was landed some distance away unconscious though not fatally, and perhaps not seriously, injured.

There seems no substantial question but that the plaintiff’s evidence, if believed, showed a case of actionable negligence unless we are to assume that the Company had a right to operate its car at a dangerous rate of speed, without warning of approach at crossings, and thus throw all the burden of care on the traveler seeking to cross a street on which the track is laid and the car operated. This we are not ready to concede. Each party had an equal right to use the street at the crossing, making due allowance for. the fact that the car runs upon a fixed track, and by reason of its greater weight being less easy to stop than the smaller vehicle. A duty to be on the lookout to avoid danger is just as fully imposed on the motorman operating a car as upon the driver of another vehicle, and a street car company must operate its cars with reference to the rights of others traveling on the street. The only different right which the railway company has arises from the necessity of the car confining its travel to the tracks, and the consequent inability to .turn out to avoid collision. Furthermore the duty is imposed on the company to so operate its cars as to keep them under control at street crossings in order thereby, so far as may be, to avoid injury to those first reaching the crossing and exercising their right to cross. So that unless the evidence disclosed a case of contributory negligence as matter of law the case should have been given to the jury under proper instructions.

The duty by one intending to cross a street-car track to look for the approach of a car before attempting to cross has not yet been held by this court to be an absolute duty, and its omission negligence as matter of law. The rule in this state as to vigilance on the part of one about to cross a known steam railroad track was established by this court in C. C. & C. R. Co. v. Crawford, 24 Ohio St., 631. It is to the effect that ordinary prudence requires one about to cross a track of a steam railroad to use his faculties of hearing and seeing to avoid injury, and the omission to do so, without reasonable excuse therefor, is negligence which will defeat a recovery for an injury to which such negligence contributed; but such omission will not defeat the action if by due diligence in their use the consequence of defendant’s negligence would not have been avoided; nor will a failure be regarded as negligence if, under all the-circumstances, a person of ordinary prudence would be justified in omitting to use them, the question of negligence and contributory negligence being a mixed question of law and fact to be decided by the jury unless the circumstances of the case admit of no rational inference but that of negligence. The effect of the entire holding is that the omission to look is not negligence in all cases and as matter of law, and it remains the law of Ohio to-day, though there are a number of decisions of courts of other states, notably Massachusetts, which appear to hold a more rigid rule. It is the Ohio rule respecting the crossing of a steam road, and, for a much stronger reason, the rule as to crossing a street railway track. Whether Brandon looked or not is not clearly shown either way by the testimony. Even though omission to look be regarded as negligence, yet we are not to presume negligence on the driver’s part in the absence of proof which establishes it, for negligence is not presumed against either party. It is possible he did look and, mistaking the speed of the car, thought he could safely cross, thus attempting to exercise an undoubted right in a public street. If he did it would be a question for the jury whether a man of ordinary prudence, situated as he was then situated, would have done as he did. But if this is not so, still Brandon had the right to assume that a car would not be running at a high and dangerous rate of speed, and without signal or alarm, and beyond control, and to act on that assumption on approaching the crossing. The driver of such a vehicle is not, in the use of the street, a trespasser, nor a licensee, but one pursuing an undoubted right, and the question always is, did he, in the pursuing of that right, exercise ordinary care? Nor is he bound to refrain from going upon the crossing merely because a street-car is in sight. If he reaches the crossing first he is entitled to cross unless it should appear that the car is in such close proximity, and traveling at such speed, as to make it impracticable to check the same in order to permit him to cross in safety. It was possible for the motorman, had he been in the exercise of ordinary care, to see the horse before Brandon, sitting back in the wagon, could see the car. As before stated, Brandon was not bound, as matter of law, to anticipate negligence on the part of the motorman even though he knew, as apparently he did, that there was a track on Third street and that cars were at intervals operated both ways thereon. It is not negligence in the driver of a vehicle to attempt to cross a street-car track ahead of an approaching car so far away that by the exercise of reasonable vigilance on the part of the motorman it might be stopped or checked before reaching the crossing.

But, assuming that Brandon was guilty of some negligence in driving on the track, yet if the motorman, in the exercise of even ordinary care, after he saw the horse and appreciated Brandon’s peril, had time and opportunity to avoid the possible consequences by checking the car, and neglected to so exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.

. Such a situation presents a case where different minds might reach opposite conclusions, and thus was a proper case for a jury under proper instructions.

Judgment affirmed.

Johnson, Donahue and O’Hara, JJ., concur.  