
    The Youngstown Municipal Ry. Co. v. Chismar.
    (Decided May 17, 1935.)
    
      Messrs. Harrington, Huxley & Smith, for plaintiff in error.
    
      Mr. John Willo and Mr. G. F. Sccmlon, for defendant in error.
   Nichols, J.

Michael Chismar, defendant in error, filed his petition in the Common Pleas Court of Ma-honing county against Rosalie Haisman and The Youngstown Municipal Railway Company, plaintiff in error, for damages for injuries received by him while a passenger on one of the street cars of The Youngstown Municipal Railway Company, resulting from a collision between the street car and an automobile driven by Rosalie Haisman. Trial of the case in the Court of Common Pleas resulted in a verdict of $5,000 in favor of plaintiff, against both defendants.

This cause comes into this court upon a petition in error filed by The Youngstown Municipal Railway Company, one of the defendants, a separate error proceeding having- heretofore been instituted and heard in this court on behalf of Rosalie Haisman- wherein the judgment of the trial court against Rosalie Haisman was affirmed.

Defendant in error, Michael Chismar, was a passenger on a street car operated by The Youngstown Municipal Railway Company, south bound on Grlenwood avenue, on November 25, 1930, about 4:45 o’clock in the afternoon, when an automobile, north bound, operated by Rosalie Haisman, collided with the street car. The collision occurred at the northerly end of a curve in the street. Rosalie Haisman, as she approached the curve from the south, stooped to pick up her pocketbook which had fallen to the floor of her automobile. As she stooped she permitted her ear to continue approximately in a straight line and diagonally across the street, crossing the easterly one of the two street car tracks thereon, and to collide with the street car on the westerly track.

The petition of plaintiff charged that “Rosalie Haisman wrongfully, carelessly and negligently operated her said automobile northerly on Grlenwood avenue at a high, dangerous and unlawful rate of speed, to wit: At more than twenty-five miles per hour, without giving notice of its approach by horn or signal of any kind, without keeping any look-out or observation for other vehicles or street cars upon said avenue, and without having it under any control, and beyond the center or upon the left side of said avenue, and caused said automobile to collide head-on with the said street car, with great force and violence.”

The petition of plaintiff below charged that “the defendant, The Youngstown Municipal Railway Company, then and there, in disregard of its duty, did by its certain servant and agent, wrongfully, carelessly and negligently operate said street car at a high, dangerous and unlawful rate of speed, to wit: At about twenty miles per hour, without giving notice of its approach by gong or signal of any kind, without keeping any lookout or observation for other vehicles upon the street car track on said avenue, and without having it under any control, and without stopping said street car in due season in order to avoid running into and colliding with said approaching automobile, after the said defendant company saw, or in the exercise of ordinary care should have seen, the said automobile approaching on said street car track and in a position of peril, and thus caused, permitted and suffered said street car to come into violent collision with said automobile, as aforesaid, so that by the joint and concurrent negligence and default of the defendant, Rosalie Haisman, and the defendant, The Youngstown Municipal Railway Company, * * * the plaintiff was * * * injured.”

In his petition, the plaintiff below set forth that Glen-wood avenue, whereon the collision took place, as well as Willis avenue, intersecting Glenwood avenue from the east, were duly dedicated public highways in the city of Youngstown; that there was a bend or curve in Glenwood avenue at the intersection, and that there was in full force and effect, an ordinance in the city of Youngstown regulating the • operation of street cars, found in Chapter 38, which provided, in part, as follows :

“Section 587. * * * All cars shall be provided with a signal bell or gong * * *. On all cars such bell or gong shall be sounded at least one hundred (100) feet distant from all street intersections, and shall be continuously sounded while passing such street intersection.”

“Section 588. * * * any car approaching any curve, shall do so with the greatest care, and shall be under the complete control of the person running the same. ’ ’

“Section 591. The * * * motorman or person in charge of each car, shall keep a vigilant watch for all * * * vehicles * * * either on the track * * * .or moving towards the same, and on the first appearance of danger to such * * * vehicle, * * ’* said car shall he stopped in the shortest time,' and within the shortest distance possible.”

We have thoroughly examined the testimony contained in the record as to the facts and circumstances surrounding the collision between this automobile and street car. It appears from the evidence that Glen-wood avenue runs in approximately a north and south direction. It is 38 to 40 feet wide; is paved with brick and has two street car tracks, one for the north bound cars and the other for the south bound cars; that at the time of the collision the street was clear of traffic, except for the street car, the automobile of Miss Haisman and an automobile driven by one of plaintiff’s witnesses, Carl Lund.

Carl Lund testified that he was driving north on Glenwood avenue about two hundred feet behind the Haisman automobile; that the Haisman automobile was also traveling north on Glenwood avenue at a speed of about 20 to 30 miles per hour (Miss Haisman testified that she was traveling 25 to 30 miles per hour); that the Haisman automobile was traveling in the space between the east curb of Glenwood avenue and the easterly • rail of the north bound car track; that the Haisman automobile continued along in the space between the east curb of Glenwood avenue and the first rail of the north bound tracks until it got up to Willis avenue, and that it made part of the bend at Willis avenue and then swerved over to the south bound tracks, and collided with the street car at a point about 50 feet north of Willis avenue; that the street car, when Mr. Lund noticed it first, was traveling about 18 to 20 miles per hour and was then about 75 feet north of Willis avenue and the Haisman automobile was yet south of Willis avenue; therefore, taking plaintiff’s own witness to be correct, the street car -traveled only 25 feet to the point of the accident, while the Haisman automobile traveled 50 feet, plus the width of Willis avenue, to the point of the accident. No witness testified positively that the bell or gong on the street car was not being sounded previous to the collision,' each of the witnesses testifying that he did not know, or that he did not hear. So far as we can observe from the testimony no witness was asked whether the bell or gong on the street car was sounded at least 100 feet distant from the intersection of G-lenwood avenue and Willis avenue. The street car did not come to the intersection of these streets before the collision, and therefore that part of Section 587 of the ordinance of the city of Youngstown, which requires the bell or gong to be sounded continuously while passing street intersections', could not possibly apply to the situation here presented.

Section 588 of the municipal ordinance, providing that any car approaching any curve shall do so 'with the greatest care and shall be under the complete control of the person running the same, can not be reasonably construed so as to require the operator of the street car to have the same in such control that the car can be stopped instantly, as such stopping would not comport with the high degree of care required of the street car company in the transportation of its passengers, as such instant stopping would tend toward, rather than prevent, injuries to such passengers by throwing them from their seats. The first duty of the motorman is for the safety of his passengers.

The witness, Lund, testified that the street car was “traveling at the regular rate”; that “the course of the Haisman automobile was a straight course where the curve is, right straight across the street, headed ip towards the street car”; that the automobile first went over the north bound track, on over the “devil” strip, so called, a strip of paving between the two tracks, and over the south bound car track before the collision; that the right front part of the automobile struck the right front part of the street car, meaning, “the right side, the way she traveled, and the right side of the street car, the way it traveled.” The witness, Lund, was indefinite as to whether the street car had stopped before the impact, but said that “the street car stopped very quickly.” Photographs of the scene of the-collision are in evidence and we gather from the “evidence and these photographs that the collision occurred at a point approximately where the north end of the curve in the street begins, being 50 feet north of the intersection of the two streets. Prom the evidence and the exhibits in this case, we can see no application of the ordinances of the city of Youngstown, as pleaded in the petition of plaintiff, to the collision in question, nor can we find any evidence in the record from which the jury would be warranted in finding any negligence upon the part of the street railway company.which was a proximate cause of plaintiff’s injuries. The defendant, The Youngstown Municipal Railway Company, moved the court, at the close of plaintiff’s testimony and at the close of all the evidence, for a directed verdict in its favor. We think these motions' should have been granted. There is no law' or ordinance of the city of Youngstown which prescribes the speed of street cars and we find that the provisions of Section 588 of the ordinance of the city of Youngstown, set forth in plaintiff’s petition, wherein it is provided that on the first appearance of danger to vehicles moving toward the same on the street or tracks, street cars shall be stopped within the shortest time and within the shortest distance possible, are too vague and indefinite to constitute a rule of conduct in the operation pf street cars in the city, and that the section has not been violated in this particular case, as it is clearly shown by the evidence that the street car traveled but 25 feet, while the automobile of Miss Haisman was traveling 100 feet.

The ordinance of the city of Youngstown does not require the gong or bell of a street car to be sounded continuously from a point 100 feet distant from a street intersection until the street car passes the intersection. It only requires that the bell or gong shall be sounded at least 100 feet distant from all street intersections, and continuously while passing such street intersections. If the bell or gong was sounded 1,000 feet distant from street intersections this would comply with the first portion of this -s'ection, since 1,000 feet meets the requirement of “at least 100 feet.” Since the street car was stopped within 25 feet after the Haisman automobile reached Willis avenue, it is apparent that the street car was being operated at the time with the greatest care and under such complete control of the person operating the same as is consistent with the operation of street cars.

It can not be said that the operator of the street car was required to anticipate that the driver of an automobile upon this public street would stoop to pick up her pocketbook from the floor of her automobile and permit the automobile to suddenly cross both street car tracks and collide with the street car.

Miss Haisman’s testimony was very frank wherein she states that she struck the street car with the right part of her automobile striking the right front of the street car. She testified that just before the collision she “reached for my purse that had fallen on the floor” of her car; that she did not definitely know where she was with reference to Willis avenue when she stooped over to pick up this purse, but when she looked up again and looked out ahead of her “she was already going across the street car tracks diagonally and was facing the oncoming street car”; that she “was pretty near the street ear and I thought whatever I did I would hit it and so to save myself I turned the car to the left so it presented the right side away from me.” It is quite apparent that she was not giving any attention to the operation of her car at the time, and that her own negligence was the sole proximate cause of the collision and consequent injuries to plaintiff.

We hold that the record discloses no negligence upon the part of The Youngstown Municipal Railway Company which was a proximate cause of the injuries to plaintiff and that the trial court committed prejudicial error in overruling the motions of The Youngstown Municipal Railway Company for a directed verdict at the close of plaintiff’s case and at the close of all the evidence.

This' court coming now to enter the judgment which the trial court should have entered at the close of all the evidence, renders final judgment in favor of The Youngstown Municipal Railway Company. >

Judgment reversed and final judgment for plcdntiff in error.

Carter and Roberts, JJ., concur.  