
    Cincinnati Street Ry. Co. v. Snell.
    
      Injury to person — Introduction of new forms of vehicles and new motive power on street railways — Effect upon law of negligence —Right of foot passenger — Duty of driver of vehicles — Question of contributory negligence.
    
    1. The introduction of new forms of vehicles, and of new motive power on street railways, has not impaired the right of the foot passengers to safe passage at street crossings. It is the duty of drivers of vehicles, whether wagons, wheels, or cars, to so regulate the speed thereof, and give such warning of approach, at whatever cost of pains and trouble on their part, as that the footman, using ordinary care himself, may, in the absence of unavoidable accident, cross in safety.
    2 When a street railway company operating a double track road discharges a passenger at a street crossing, having reason to know that such passenger, in order to reach his destination, must cross its tracks, it is the duty of such company to reg-ard the rights of the passenger while on the crossing, and to so control the speed of cars on its tracks, and give such warning of their approach, as will reasonably protect the passenger from injury. Omission of such duty is negligence, and a person injured by reason thereof may maintain an action against the company for damages unless prevented by his own negligence contributing to the injury.
    3. A person about to cross the track of a street railway at a street crossing is bound to exercise care proportioned to the danger to be avoided and the consequences which might result from want 'of it, conforming in amount and degree to the particular circumstances surrounding him; but it is only ordinary care which is required, that which might reasonably be expected of persons of ordinary prudence. Ordinary care does not require him to anticipate negligence on the part of those operating the railway. And while he should use his faculties for his own protection, it is not negligence per se for him to omit to look in both directions for the approach of a car. Whether it is or not negligence depends upon the circumstances.
    4. Where the evidence of the plaintiff shows actionable negligence on the part of the company, and the question of contributory negligence of the plaintiff depends upon a variety of circumstances from which different minds may reasonably arrive at different conclusions as to whether there was contributory negligence or not, the question should be submitted to the jury under proper instructions; and it is error in such case for the court to direct a verdict for the defendant.
    5. And where in such case the question as to whether or not the plaintiff exercised his faculties of seeing and hearing before attempting to cross is in issue, and the oral evidence tends to show that he did, while circumstantial evidence tends to disprove that claim, a condition is presented involving such variety of circumstances as makes it proper to submit the question to the jury.
    (Decided February 25, 1896.)
    Error to the Circuit Court of Hamilton county.
    Action below was by Snell against The Cincinnati Street Railway Co. to recover for personal injuries received by being struck by a moving car of the company. In the common pleas, at the conclusion of the plaintiff’s testimony, a motion by the company to direct a verdict in its favor was sustained, and a judgment on the verdict so rendered was entered. This judgment was reversed by the circuit court. The company asks a reversal of that judgment.
    Paxton, Warrington da Boutet and Kittrecbge da Wilby, for plaintiff in error.
    No claim was made by the plaintiff in error, in the court below, and it is not contended here that the court could assume that there was no evidence tending to show negligence on the part of the defendant company. It is, however, insisted and we now urge that it is disclosed by the testimony presented that Charles B. Snell crossed the track immediately behind one ear and walked into another, omitting every precaution ^yhich persons of ordinary prudence would exercise, and without the existence of any circumstance to excuse his conduct.
    
      The plaintiff himself was wholly responsible for the obstruction to his view of the car approaching on the opposite track. By walking behind the car from which he alighted, he temporarily created an obstruction to his view. He alone is responsible for that obstruction, for the defendant had an absolute right to proceed with its east bound car.
    Let us turn to what the courts have said respecting the duty of a person about to cross tracks where the view is obstructed. Horn v. Railway Co., 54 Fed. Rep., 301; Railway Co. v. Peters, 1 C. C. Rep., 34; The Pennsylvania Co. v. Morel, 40 Ohio St., 338.
    The iron tracks in the street over which he was stepping and toward which he was walking were notice and warning to him of danger. Elliott v. Railway Company, 150 U. S., 245.
    The obvious weight of rapid transit electric street cars and the consequent difficulty of stopping them quickly, necessarily render their operation so dangerous as to require the application of the same rule to persons about to cross or occupy the tracks, as the one which is applied to persons approaching steam railroad crossings over public highways. Hickman v. The Union Depot Railway Co., 47 Mo. App., 65; Smith v. The Citizens' Railway Co., 52 Mo. App., 36; Fritz v. Detroit Citizens’ Street Railway Co., 62 N. W. Rep. 1007; Boerth v. West Side Railroad Co., 87 Wis., 288; Ward v. Rochester Electric Ry. Co., 17 N. Y., Sup., 427; Corson v. Federal Street & Pleasant Valley Ry. Co., 147 Pa. St., 219; State ex rel. v. City of Toledo, 48 Ohio St., 112.
    
      John W Wolfe and Thomas L. Michie, for defendant in error.
    
      As to the right of the court to assume the province of a jury in determining the question of contributory negligence as a matter of law, see Railroad Co. v. Picksley, 24 Ohio St., 654; Railway Co. v. Crawford, 24 Ohio St., 631; Ellis & Morton v. Ohio Life Insurance & Trust Co., 4 Ohio St., 647.
    As to what is contributory negligence under the circumstances of this case, we submit the following’ authorities: Railroad Co. v. Robinson (Ill.), 4 L. R. A., 126; Omaha St. R. Co. v. Lochneisen (Neb.), 58 N. W. I., 535.
    Defendant in error had been accustomed to getting off 'at the same place since the plaintiff in error first commenced to operate its electric ears, and he had a right to assume that plaintiff in error would operate its car with due care while passing the car from which he had alighted. Meek v. Penn. R. Co., 38 Ohio St., 652.
    In this ease the court substantially recognizes the doctrine that one of the circumstances by which contributory negligence is to be determined is, what the injured party had the right to expect in the way of due care íd the operation of the car by which he was injured.
    There is a vital difference between the duties which a street car company, occupying a portion of the public hig’hway, owe to the public, especially at crossings in the city, and the duties of a railway company upon its own' right of way. New Jersey Court of Appeals, 22 L. R. A., 378; Driscoll v. Railroad Co., 32 Pac. Rep., 591.
    . We submit that in this case the testimony of the defendant in error as to how he was struck, was strengthened by the long and skillful cross-examination, and by the testimony of other witnesses, making it plain the defendant in error acted as any other reasonably prudent man would have acted und'er the circumstances, and as people in alighting from cars had been accustomed to act. Where electric cars are run in opposite directions on closely parallel tracks, there is no deadlier parallel than the tracks of the trolley railway, and it is such gross and reprehensible negligence that one car should run at rapid speed and without signal by another car which has stopped or slowed up, to let off passengers at a regular crossing, that no reasonable mind would anticipate such negligence. Weizer v. Railway Co., 10 O. C. C. Rep., 14.
    Under the settled law of this state imposing on the defendant the burden of establishing the contributory negligence of the plaintiff, just as the burden of establishing the negligence of the defendant rests on the plaintiff, we claim that a jury alone, under proper instructions of the court, could assume the province of determining the question of contributory negligence of the defendant in error.
   Spear J.

The ground upon which the common pleas directed a verdict was that the plaintiff’s evidence disclosed contributory negligence of such a character as to preclude a recovery. In other words, the holding was that, as matter of law, the plaintiff was guilty of contributory negligence. If the plaintiff’s conduct, as shown by the undisputed facts, left no rational inference but that of negligence, then the ruling was 'right, but if the question of contributory negligence depended upon a variety of circumstances from which different minds might arrive at different conclusions as to whether there was negligence or not, then the ruling was wrong. This follows from the rule given in Ellis & Morton v. Ins. & Trust Co., 4 Ohio St., 627. Applying the doctrine of that case, the motion involved an admission of all the facts which the evidence in any degree tended to prove, and presented only a question of law, whether each fact indispensable to the right of action, and put in issue by the pleadings, had been supported by some evidence. If it had been, no matter how slight the evidence, the motion should have been denied, because it was the right of the plaintiff to have the weight and sufficiency of his evidence passfed upon by the jury. But if he had failed to give evidence tending to establish any fact without which the law would not permit a recovery, he had nothing to submit to the jury, and a question of law only remained. We are aware that this rule is much criticised, and plausible arguments against its reasonableness have been adduced, but it has been followed uniformly, and should be applied until definitely overruled, or changed by legislation.

The plaintiff was himself bound to use ordinary care, such degree of care as a man of ordinary prudence commonly uses under like circumstances; care proportioned to the danger to be avoided, and the consequences which might result from want of it, conforming in amount and degree to the particular circumstances under which it was to be exercised. If all people exercised the greatest possible caution in approaching and crossing railroad tracks, accidents would be much less frequent than they are; but the law does not require extreme care. Such care, and such only, as ordinarily prudent persons could reasonably be expected to exercise under the circumstances is the full measure. In order, therefore,to judge whether or not a fair question was presented regar ding plaintiff’s contributory negligence we must inquire into the circumstances as disclosed by the evidence.he introduced.

The evidence showed that the company’s road is operated on Eastern avenue, Cincinnati, a thoroughfare running east and west. It is a double-track electric road, the space between the tracks being about three feet. The cars are wider than the track, extending about one foot outside the rail. Defendant in error, Snell, resided on the north side of the avenue, between Washington and Weeks streets, the block between these streets being about 800 feet in length. Near his residence, in front-of a drug store, there was a flag stone street cross walk at which the cars were accustomed to stop to receive and discharge passengers. Snell-had been a daily passenger on the road for a number of years, and was known, as also his residence and place of getting on and off, to the railroad conductors. On the day of the accident Snell was a passenger on an east bound car on the south track. As the car approached the crossing the speed was slackened to allow Snell to get off, but did not quite stop. He stepped off outside of the south track at the crossing, and turned north to go to the north side of the street, which required him to cross both tracks. As he neared the south rail of the north track he was struck by a west-bound car and injured.

The evidence tended to show further that Snell xhad not observed the coming car before alighting, nor does it appear that he looked, while in the car, in the direction from which the other car was approaching. At some time, while crossing, he looked both east and west along the track, but the precise point from which he looked east is not clear. The conductor of the car on which he had ridden gave him no warning of the approaching car, nor was any gong or other alarm sounded, or warning given, by the motorman in charge of the coming car. He was inexperienced, having been the driver of a milk wagon until two or three days before. On the same car there was an experienced motorman, who was on for the purpose of giving the new hand instructions. At the moment Snell was struck the car was running about twenty miles an hour, on a down grade, and ran about one hundred feet before it could be stopped. The car from which Snellalighted was moving slowly east, and, had the other car been running at an ordinary rate of speed, Snell would probably have had, after he saw it, opportunity to avoid it; but the car moved so rapidly that, after seeing it, he had but time to throwup his hands and try to step back when the car struck him.

Thequestion presentedfor thecourtwas, simply, Did the evidence establish, as matter of law, that Snell was guilty of negligence contributing to his injury? The place of the accident was a street crossing, used as such by the public, and recognized as such by the company. It was the duty of the company to keep in mind the right of pedestrians on that crossing, and especially its duty to observe the rights of its own patrons who were under a necessity of using that crossing in going from its cars to their houses. Ancient rights have not changed because new vehicles of travel have been introduced upon the streets, nor because a portion of the people who ride, being in haste to reach their destination, demand rapid transit. The streets remain for all the people, and he who goes afoot has the right, especially at a crossing, to walk to his destination; he should not be compelled to run, or to dodge and scramble, to avoid collision with vehicles. As ageneral proposition, drivers of vehicles have the same right to travel along the carriageway of a street that foot passengers have to walk there. There is no priority of right, so that the right of neither is exclusive. But. it is to be borne in mind that the injury by collision is wholly upon the side of the footman; and the right of personal protection which every person possesses, together with that moral and legal obligation to refrain from doing an injury to his person which is imposed upon all others, gives the foot passenger such a right at street crossings as to make it the duty of drivers of vehicles, whether wagons, wheels or cars, to so regulate their speed and give such warning of approach, at whatever cost of pains and trouble on their part, as that the footman, using ordinary care himself and barring inevitable accident, may cross in safety. Life and limb are of more consequence than quick transit. The vehicle man must not run down the pedestrian. The opposite doctrine appears to have found lodgment in many minds, and there seems a disposition to assume that a foot passenger has nq right upon a public street as against a street car. Indeed, common observation seems to show that this belief controls the conduct of drivers of many conveyances, public and private. Too often there is a reckless disregard of human life and limb, and pedestrians are compelled, at their peril, to keep out of the way. As matter of law, it is as much the duty of the vehicle to keep out of the way of the footman, and especially so at crossings, as it is for the latter to escape being run over, giving due consideration to the greater difficulty of guiding and arresting the progress of the vehicle. The use of streets for railways is allowed only because it is considered not to be a substantial interference with their free and unobstructed use as highways for passage. So long, therefore, as there is no unreasonable interference with the public right of passage, railways in streets are lawful structures; but if operated upon the theory of exclusive right to their track, they become wrongdoers. Street Ry. v. Cumminsville, 14 Ohio St., 523; Coach Co. v. Railroad Co., 33 New Jersey (Eq.), 267; Baxter v. Railroad Co., 3 Rob.,516; Barker v. Savage, 1Sweeny, 288; Ry. Co. v. Block, 55 New Jersey (Law), 605; Attorney General v. Railroad Co., 125 Mass., 515.

Undoubtedly the footman must reasonably use his senses for his own protection, and if he knows of the approach of a vehicle, and, using his faculties, perceives that he cannot continue on without danger of collision, he may not rush forward regardless of consequences. He is not bound, however, to anticipate negligence on the partof drivers of vehicles, but has the right to assume that they will not be negligent.

In this case, if the, evidence was to be believed, there was a total disregard of plaintiff’s rights, a clear case of gross, culpable negligence. The company owed to the passenger who had just alighted the duty of permitting him to cross from its car to the opposite side of the street without peril of life or limb from the acts of the company; instead of which it sent its car down the grade at break-neck speed without giving any Warning, or taking any pains to avoid running him down. Snell, it is true, was bound to anticipate that a car might come on the north track, but he was not required to anticipate that it would come at such a dangerous rate of speed, for that would be presuming that the company would be negligent; and if, acting on the presumption that the company would not be negligent, he used such caution as men of ordinary prudence would have used, his own conduct did not preclude a recovery. Whether he did use such degree of care, we think, was a question for the jury. The evidence presented a case where different minds might reasonably reach different conclusions. We are not required • to determine the question whether or not Snell was negligent.

It is insisted that, in the best view of the ease for the plaintiff, the evidence shows that he did not look to the east; for while it maybe that the verbal evidence tended to show that he did look in that direction, yet he could not have done so, for if he had he surely would have seen the coming car, and that, as matter of law, it is neglig’enee for one about to cross a railway not to look each way. Authorities are to be found giving apparent support to this proposition. The practice in some courts is for the court to direct a verdict whenever, in the opinion of the judge, the evidence would not warrant a judgment. And some of these decisions imply that the court has held persons about to cross a street car track to the same degree of care as would be demanded were he crossing a steam railroad. We think there is no just analogy between the right of a street railway running cars along a highway and the right of a steam railroad running' its trains across a highway- at grade, and that the rule of care incumbent upon one about to cross a steam railroad is hardly a fair one to be applied in all its strictness to street railways in cities where a car that can be speedily stopped passes a crossing at frequent intervals, and where people necessarily cross the streets frequently and hurriedly. As remarked by Gray, C. J., in Lynam v. Ry. Co., 114 Mass., 83: “The cases relating to injuries suffered by being struck by a locomotive engine at a railroad crossing afford no test of the degree of care required of the plaintiff in this case. The cars of- a horse railway have not the same right to the use of the track over which they travel, do not run at the same speed, are not attended with the same danger, and are not so difficult to check quickly and suddenly, as those of an ordinary railroad corporation. A person lawfully traveling'upon the highway is not therefore bound to exercise the same degree of watchfulness and attention to avoid the one as to keep himself out of the way of the other. ’ ’ Other cases in Massachusetts are to the effect that the fact that plaintiff’s evidence does not show that he looked up and down the street before crossing is not, as matter of law, conclusive evidence that he was notin the exercise of duecare, and that the mere fact of not looking when one attempts to cross a railroad is not conclusive evidence of want of care. Williams v. Grealy, 112 Mass., 82; Bowser v. Wellington, 126 Mass., 391; Shapleigh v. Wyman, 134 Mass., 118. Whether such omission is or is not negligence depends upon the circumstances. Ry. Co. v. Block, supra; City Railroad Co. v. Robinson, 4 L. R. A., 126; Street. Ry. Co. v. Loehneisen, 58 N. W., 535; Shea v. Railroad Co., 44 Cal., 414; Swain v. Railroad Co., 93 Cal., 179; Driscoll v. Cable Ry. Co., 32 Pac. Rep., 591; Thomp. on Neg., 396, note. We suppose the rule for street ears is the same as for other vehicles, and if the footman is required, in a crowded thoroughfare, to look up and down and wait until all possibility of collision is past, it would be like sitting on the bank until the stream should run by, and there would be but few hours in the busy part of the day when it would be practicable to cross.

Whether looking eastward would have disclosed the coming car depends upon whether the receding car .would have obstructed the view, and this depends upon its location at the time Snell looked, if he did look. The evidence is consi stent with the conclusion that he looked up the track, but that the receding car prevented him from seeing the approaching one, and that, as the former made some noise, his attention was not called to the rúmbling of the latter. And it is not inconsistent with the conclusion that ordinary range of vision would probably have enabled him without turning his head or eyes up the track, to see a car in time to, avoid it had the car been running at a safe rate of speed, and we think one so crossing could not be asked to extend his observation beyond that distance within which a car proceedingat a customary and reasonably safe speed would threaten his safety.

Taking the effect of the evidence as a whole, one thing which is tolerably clear is that if the car had been running at a reasonable rate of speed, and proper warning had been given, Snell would not have been injured; all else is in more or less doubt. The evidence pro and con, therefore, was to be weighed, and the tribunal for that purpose was the jury, not the court upon the motion.

The judgment of reversal was, we think, right, and the same is affirmed.

Shauck, J.,

dissenting.

The case upon which the trial judge gave a conclusive direction to the jury, taking the view most favorable to the plaintiff that the evidence would permit, was that his senses of sight and hearing were normal, that he knew he was upon a double track electric railway, that he quit a car and immediately passed to its rear toward the the other track without looking in the direction from which the colliding car came, and was struck and injured by a car approaching at a rate of speed which, under the circumstances, was dangerous, and that he had no knowledge of its approach. The negligence of the defendant is conceded, and the material inquiry relates to the conduct of the plaintiff:. The degree or character of the defendant’s negligence cannot be material, if, by due care on the part of the plaintiff, the injury would have been avoided.

Upon this subject it is said in the principal opinion; “Undoubtedly the footman must reasonably use his senses for his own protection, and if he knows of the approach of a vehicle, and, using his faculties, perceives that he cannot continue on without, danger of collision, he may not rush forward regardless of consequences. ” If this means that under such circumstances the footman is required to use his senses of sight and hearing to ascertain whether a car is approaching upon the track which he is about to cross, it is a correct statement of the law and a full justification of the direction given to the jury. If, however, it means that nothing is required of him except to act rationally in view of dangers that ma}^ be threatened from a car of whose approach he may happen to know, it defines a rule which, in view of the difficulty in proving his knowledge, is incapable of practical application, and which is in conflict with the adjudicated cases and the established principles of the law of negligence.

Some of those principles are accurately though generally stated in the foregoing syllabus and opinion. But the law, keeping pace with the progress of society, has, from those general principles, deduced definite rules of conduct, applicable to situations which, arise frequently. Such a rule was defined by this court in Railroad Co. v. Sipes, adm’r, 24 Ohio St., 631, by which it is made the imperative duty of “a person in the full enjoyment of the faculties of seeing and hearing, before attempting to pass over a known railroad crossing, to use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence which will defeat an action by such person for an iujury to which such negligence contributed.” That rule has been affirmed in very many cases, among which are Railway Co. v. Elliott, 28 Ohio St., 340; Railway Co. v. Rathgeb, 32 Ohio St., 66; Railroad Co. v. Whitacre, 35 Ohio St., 627. In Railway Company v. Rathgeb the general rules were correctly given to the jury, but the judgment of the trial court was reversed by this court because there was not given the definite and particular rule which the trial judge applied in this case.

Neither the authorities nor the reasons involved will permit a distinction between steam cars on the one hand and electric and cable cars on the other as to the application of this rule. Bailey v. The Cable Ry. Co. (Sup. Ct. California), 42 Pac. R. 914; Buzby v. Traction Company, 126 Pa. St., 559; Ward v. Rochester Electric Ry. Co. 17 N. Y. Sup. 427; Fritz v. Detroit St. Ry. Co., 62 N. W. R. 1007; Boerth v. West Side Ry. Co., 87 Wis. 288. The distinction is not encouraged by the decisions of the Supreme Court of Massachusetts, cited in the majority opinion. They relate to horse cars, which are likened to ordinary vehicles because of their low speed, and the ease with with they may be stopped.

It is true that the introduction of a new motive power for the purpose of rapid transit, has not changed the relative rights and duties of carriers and footman. It is equally true that it imposes upon carriers and footman alike the duty of exercising greater absolute care. This is true because the rules of relative care have not changed. The carrier is required to use greater care because of the increased speed of its cars and their greater weight, and the footman must use greater care because of his knowledge that he is exposed to greater danger.

There are considerations of grave importance which cannot be eliminated from cases of this character. The car cannot be stopped instantly, nor can it be turned from its track. The footman can instantly stop or change his course. Considerations of health and economy require that the populations of large cities occupy extended territories, whence arises the necessity for rapid transit. Transit cannot be rapid as to those aboard the ears and slow as to those crossing the street. The same considerations require that there shall be low fares. Prom the fact that these carriers have no mysterious sources of revenue, it results that compensation awarded to the careless, though in the form of a judgment against the carrier, must be ultimately paid by its careful patrons. The whole duty of the public in this regard is performed when they compensate those who, while in the exercise of due care, are injured by the carelessness of the agencies which public necessities have called into existence. In view of these and like considerations, I am not willing to seem to believe that it is practicable either to protect those who go upon the crowded streets of cities with slumbering senses, or to compensate them for injuries to which a failure to use their senses contributes.

The course of the trial judge in this case is worthy of commendation. Having devoted enough time to the orderly examination of the case to disclose a conclusive reason why the plaintiff could not recover a verdict according to law, he directed the verdict which the law required. The plaintiff had no constitutional or legal right to recover a verdict upon which he could not recover a judg’ment. Had the case been submitted to the jury upon general instructions, the Court would not have been sitting to administer justice, but to experiment with a verdict. Such a course was required by no right of the plaintiff. It was forbidden by justice to the defendant and by a due regard for the rights of the public in a speedy administration of justice.

Burket, J., concurs in the dissenting opinion.  