was held that the absence of a red light on the rear of the truck as required by statute was evidence of negligence on the part of the truck driver.51 If the automobile was stalled on the track by reason of the defective construction of the crossing by the defendant, the latter is liable for the damages resulting from a collision caused thereby. The defendant was charged with knowledge of the defective condition of the crossing, which was of its own construction.52 Where an automobile stalled on a street car track at a point where the motorman of an approaching car, 250 feet away, had a full view of it, and the chauffeur remained in the machine trying to start the engine, and the machine was struck by the car, the case was for the jury 53 Where both the plaintiff and his chauffeur saw and knew of the approach of a street car when it was 600 feet away from the place where their automobile was stalled on the track, the failure of the employees in charge of the car to sound a warning of its approach was not a proximate cause of plaintiff's injuries received by him. when the car collided with his automobile. "The purpose of sounding a gong or ringing a bell is to give notice of the approaching car. If the party has this notice, without the sounding of the gong or ringing of a bell, we have universally declared that the failure to sound gong or ring bell is not the proximate cause of that injury, and should not be made the predicate for a recovery. Under such circumstances the sounding of a gong or ringing of a bell could not impart more notice than the party already had. If one, at a crossing, sees a rapidly approaching train, no amount of whistling or bell ringing will give him more notice than that which his eyes have brought home to him. Indeed it would tend to confuse rather than help such a person. 1154 It was not necessarily negligent for one to remain a short time in an automobile which had stalled on a street car track after seeing an approaching car, while his companion alighted to crank the engine.55 While the general rule is that no one need have warning of an approaching danger which he sees, such rule does not necessarily apply where an occupant of an automobile, stalled on a street car track, within plain view of the motorman of an approaching car for a distance of 600 feet, took no heed of the car after seeing it at considerable distance until too late to avoid an injury therefrom, thinking that the motorman would no doubt avoid hitting the automobile in plain view on the track; it being held that it might have been negligence on the part of the motorman in failing to sound a warning of the approach of the car.56 A motorist was held guilty of contributory negligence in driving his sedan upon the trolley track at a time when he knew, or ought to 51 Lounsbury V. McCormick, Mass. 328, 129 N. E. 598 (1921). 237 52 Burr v. United Railroads, 173 Cal. 211, 159 Pac. 584 (1916). 58 Mead v. Central Pa. Tr. Co., 63 Pa. Super. Ct. 76 (1916), 66 Pa. Super. Ct. 343 (1917). 54 Peterson v. United Rys. Co., 270 Mo. 67, 192 S. W. 938 (1917), rev'g 183 Mo. App. 715, 168 S. W. 254 (1914). 55 Brien v. Detroit United R. Co., 247 Fed. 693 (1917). 56 Peterson v. United Rys. Co., 183 Mo. App. 715, 168 S. W. 254 (1914). have known, that a trolley car was rapidly approaching, and that if any mischance, such as stalling his car, as occurred, he could not escape a collision.57 In a case in which a street car passenger was suing to recover for injuries received when the street car collided with a truck that was stalled on the track at night, the court held that the fact that the headlight on the truck on the side next to the track was not lighted, did not show that the motorman was free from negligence, it being but a circumstance to be considered with all the other evidence relative to his conduct.58 § 670. Same-At bottom of grade at night. The automobile, in which were the plaintiff, his wife, and two men, stalled on the track of defendant's car line at the bottom of a perceptible grade, about 9:30 o'clock at night. By direction and assistance of a police officer the automobile was moved a few feet to the side. A street car of defendant then passed safely, at a signal from some of the auto party, but going very slowly. The engine of the automobile could not be started by cranking, and plaintiff stepped on the running board to release the emergency brake, which was set, in order to allow the car to be pushed nearer the curb. As he did so, and before his hand reached the brake lever, another car of the defendant, coasting down the grade, at a rate of speed stated by some of the witnesses to be 30 miles per hour, collided with the automobile, and, striking the plaintiff, inflicted the injuries complained of. The front part of the street car cleared, but the rear step struck the rear left-hand hub of the automobile. The automobile had not moved after the first street car passed. The night was clear, the view of the motorman was unobstructed, the street car was equipped with a tungsten headlight in perfect order, and the tail light of the automobile was burning brightly. None of those working around the automobile heard the approaching street car, or any bell ringing until just before the collision. In affirming judgment for plaintiff, the court in part said: "The evidence is not only sufficient to support the verdict of the jury, but warrants a conclusion that at the time of the accident the car of the defendant was being operated in a manner amounting to a negligent disregard of the rights of persons using the street." 59 § 671. Neither driver nor motorman attempting to stop. Where the men in charge of an auto struck, when 7 or 8 yards from a street car track, saw a car about 30 yards distant approaching at full speed, kept on, contenting themselves with signalling the car to stop until too late to avoid a collision; the driver of the truck and the motorman depending upon the other to stop, it was held that the owner of the truck could not recover for damage to the truck resulting from the collision; neither party having the right of way, and it being as much the duty of the driver of the truck to avoid a collision as it was the duty of the motorman.60 § 672. Taxicab running against street car-Failure to sound gong. Where a taxicab ran against the side of a street car immediately after the latter had stopped on a crossing in front of it, and it appeared that the plaintiff, a passenger in the taxicab, saw the street car when it was about three car lengths from the place of the accident and when the taxicab was an equal distance therefrom, no recovery could be had from the street car company, its failure to ring a gong on approaching the crossing not constituting negligence in the circumstances.61 § 673. Salvage corps automobile-Injury to employee. An automobile belonging to the defendant salvage corps and in charge of one of its officers was on its way to a fire, moving at the rate of 30 or 35 miles an hour. As it approached a street crossing a street car was approaching the same crossing on the intersecting street. Seeing the danger of a collision, a policeman signaled the car to stop, but it was unable to do so until the front end of the car was near the center of the crossing. Those in charge of the automobile seeing the street car and assuming that it was going to continue, undertook to pass it; but as the car stopped, the automobile, when it was turned for the purpose of passing, skidded against the car. It was practically destroyed in the collision. The plaintiff, a subordinate employee of the salvage corps, who was in the automobile in the line of his duty, was thrown out and injured. The place of the collision was a much frequented point. The defendant was a private corporation controlled by insurance companies; its purpose being the saving of life and property. It was held that the proximate cause of the accident was the rate of speed at which the automobile was driven, which was reckless and negligent in the circumstances; that the plaintiff, riding in the automobile being driven by a chauffeur under the direct control of an officer of the defendant who sat beside him, did not assume the risk of such an accident. Judgment for the plaintiff was affirmed.62 It was held in a different proceeding that the salvage corps could not recover from the street railway company for damage to the automobile mentioned; that the salvage corps does not perform a public service entitling it to use the streets in preference to other persons.63 § 674. Fire apparatus. An ordinance giving fire apparatus the right of way in the public streets places on other users of the streets the duty to yield the same for the passage of such apparatus, and a violation of that duty by a street car motorman constituted negligence 60 James Everard's Breweries v. New York Rys. Co., 151 N. Y. Supp. 905 (1915). 61 Camozzi v. Puget Sound Tr., L. & P. Co., 94 Wash. 545, 162 Pac. 987 (1917). 62 Louisville Salvage Corps v. Wehner, 153 Ky. 190, 154 S. W. 1087 (1913). 63 Louisville R. Co. v. Louisville F. & L. Pro. Assn., 151 Ky. 644, 152 S. W. 799 (1913). per se on the part of the railway company. City firemen have the right to rely upon the observance of such ordinance by others.64 A fireman responding to a fire call, though off duty, was entitled to the protection of such an ordinance, it appearing that he was subject to call at all times, and on this occasion was obeying the orders of a superior officer,65 In an action by a fireman to recover for injuries incurred in a collision between a truck on which he was riding and a street car of defendant, evidence that street cars customarily stop on the approach of fire apparatus, was held competent as bearing on the question of contributory negligence, although such custom was not pleaded.66 Where a fireman, having the right of way, saw a car on an intersecting street slowing down when it was 100 feet from the street, he could assume that it was going to stop.67 ACT OR OMISSION OF MOTORIST § 675. Duty of motorist to look to the rear for street cars. It is not negligence per se for the operator of an automobile, driving along a street car track, to fail to look back or to anticipate the approach of a street car from that direction. Although he is charged with a greater degree of care, in such circumstances, than ordinarily, he is not required to keep a lookout to the rear to the exclusion of his duty to look ahead; the latter duty being paramount.68 It is held 64 Indianapolis Tr. & Ter. Co. v. Howard, 190 Ind. 97, 128 N. E. 35 (1920); Malone v. Kansas City Rys. Co., Mo. App. - 232 S. W. 782 (1921); Gilchrist v. Kansas City Rys. Co., Mo. 254 S. W. 161 (1923). Instruction under humanitarian rule approved. "The court instructs the jury that, if the jury find and believe from the evidence that on or about December 16, 1917, plaintiff was riding on the fire truck mentioned in evidence eastwardly along Linwood boulevard as a city fireman, and in response to a fire alarm, and that as said fire truck was nearing and approaching Prospect and was so close to Prospect that said fire truck could not pass thereover if the street car was started and moved across Linwood (if so), the north-bound car mentioned in evidence was standing on the south side of Linwood boulevard, and that plaintiff was then in a position of imminent danger and peril from the starting and moving forward of said car and was unable to cause said fire truck to stop before reaching the point of collision, if you so find, and that plaintiff in approaching Prospect and in getting into such peril, if any, was relying upon the right of way ordinance referred to in evidence (if so), and that the motorman of said car knew, or by the exercise of ordinary care could have known, of all the above facts, if any, 65 Gilchrist v. Kansas City Rys. Co., 66 Gilchrist v. Kansas City Rys. Co., 67 Malone v. Kansas City Rys. Co., Mo. App., 232 S. W. 782 (1921). 68 Simmons v. Pacific El. R. Co., Cal. App., 212 Pac. 637 (1923); that he may assume that the motorman of a car will not collide with his machine without giving him warning and an opportunity to turn. off of the track; that to divide the attention of the autoist by requiring him to keep a lookout to the rear as well as in front would be fraught with dangerous consequences.69 So, a motorist who drove on a car track in order to avoid a coal wagon, and who was struck by a street car approaching from the rear, was held not to be guilty of negligence as matter of law in failing to look to the rear at any time, but depending on the sound of the gong of any approaching car.7 70 It has been held not to be negligence, as matter of law, for one, while operating an automobile on a street car track in a city street, at 15 miles an hour, to fail to look back for an oncoming car.71 A motorist driving on a street car track on a dark, foggy night, with a red light on the rear of his machine, when there was danger of striking people on crossings, and a cross street was torn up and could be crossed only on the tracks, was not, as matter of law, guilty of negligence contributing to his injury in failing to look back for a car, which approached from the rear at a dangerous rate of speed and without warning and struck his machine. In such a case the street car has not the right of way as matter of law, and the question of the motorman's negligence is for the jury.72 There is a difference, however, in driving on the track and in driving close to it, but the court made no such distinction, and seemed to think that the driver should have looked back if he had been driving on the track. But in a Pennsylvania case it was held that where a motorist drives with rear and side curtains down, at 10 or 15 miles an hour, in the daytime, and too close to a street car track for a passing car to clear the machine, and the machine is struck by a car approaching from the rear, and the driver could easily have avoided the car if he had looked back, he is guilty of contributory negligence as matter of law.73 To turn onto a track while driving parallel to it without looking to the rear for a street car may amount to contributory negligence.74 § 676. Ignorant of tracks-Car in view. Where one drove a truck onto interurban tracks, of which he was ignorant, and was struck by a car moving 25 miles an hour, and which was in plain view for a long distance before reaching the crossing, and he could have seen the poles and wires, he was contributorily negligent as mat 70 Capital Tr. Co. v. Crump, 35 App. D. C. 169 (1910). 71 Hirsch v. Cincinnati Tr. Co., 32 Ohio Cir. Ct. R. 685 (1910). 72 Baldie v. Tacoma R. & P. Co., 52 Wash. 75, 100 Pac. 162 (1909). 73 Speakman v. Philadelphia & W. C. Tr. Co., 42 Pa. Super. Ct. 558 (1910). 74 Bendick v. Wells, Mo. App. -, 253 S. W. 394 (1923). |