We so understood plaintiff's argument. She argued in her brief that: "If in fact defendant was engaged as a common carrier, it owed the highest degree of care," citing Fuller v. Rapid Transit Co., 16 Haw. 1. She further argued that a charter on the particular occasion would make no difference, citing Kaili v. Inter-Island Steam Nav. Co., 25 Haw. 777. Defendant, in its reply brief, dismissed the matter summarily, submitting that it was a "belated contention" because the court below held otherwise and the plaintiff "failed to cross-appeal." However, plaintiff could not have cross-appealed by reason of an erroneous ruling that could not lead to a more favorable judgment.
Many of the cases cited by counsel for appellants relate to whether utility commissions can force the utility to go beyond its franchise area and have no bearing upon the case before us. The case of Fuller v. Rapid Transit Co., 16 Haw. 1, cited in appellants' supplementary memorandum, has nothing to do with the question now before the court but is merely an admission of corporate existence by the company when sued in tort. Section 4719, Revised Laws of Hawaii 1945, as amended, is a valid exercise of legislative power and the commission is charged with the duty of conducting a hearing upon applications for certificates and determining the facts of public convenience and necessity. ( Territory v. Fung, 34 Haw. 52.)
In an analagous situation, this court in Ter. v. Jellings, supra, considered the sufficiency of the evidence by expressly finding that "the verdict of the jury is amply supported and warranted by the evidence," thus properly applying the rule consistently with a long line of its prior adjudications. ( James Howland v. Samuel Jacobs, 2 Haw. 155, 157; Bishop v. Kala, 7 Haw. 590, 591; Hayselden v. Wahineaea, 9 Haw. 51, 56; Dowsett v. Maukeala, 9 Haw. 233; Kapuakela v. Iaea, 10 Haw. 99, 100; Smith v. Hamakua Mill Co., 14 Haw. 669, 670; Territory v. Kimura, 15 Haw. 510; Fuller v. Rapid Transit Co., 16 Haw. 1, 9; Kametani v. Okuhama, 28 Haw. 458-460. See Kanamu v. Wilson, 8 Haw. 385; Scott v. Nahale, 13 Haw. 255. ) In our opinion, however, the court in Ter. v. Jellings, supra, in stating that the exception is "too general for consideration by this court" did not go far enough in expressing its application of the rule in regard to the subject of the exception, or by way of clarification point out that such an exception, although specific as to error which it predicated, was too general for appellate consideration of other errors not predicated by it and hence not called to the attention of the trial judge at the time they were committed. ( Territory v. Puahi, 18 Haw. 649, 655; McCandless v. Honolulu Plantation Co., 19 Haw. 239, 242; see Fraga v. Portuguese Mut. Ben. Soc., 10 Haw. 128, 129; Ripley Davis v. Kapiolani Estate, supra; Kapela v. Gilliland, 22 Haw. 655, 659; De Freitas v. De Freitas, 25 Haw. 717, 718.
It is only when the evidence shows such lack of proper caution on the part of the person injured as to amount, as a matter of law, to contributory negligence, that the case is no longer for the jury: Fordyce v. Bus Line, 304 Pa. 106. V. K. Keesey, with him W. H. Kurtz and John A. Hoober, for appellee. — It is the duty of a traveler approaching a street railway crossing to look and listen and to continue to look until the track is reached: Massinger v. R. R., 300 Pa. 6; Smathers v. St. Ry., 226 Pa. 212; Sklaroff v. P. R. T. Co., 100 Pa. Super. 237; Kalter v. P. R. T. Co., 95 Pa. Super. 116 Thornton Fuller Automobile Co. v. P. R. T. Co., 95 Pa. Super. 286. The rule that a person losing his life must be presumed to have exercised due care, has no application where the circumstances of the accident show the contrary: Tull v. R. R., 292 Pa. 458; Miller v. R. R., 299 Pa. 63; Haskins v. R. R., 293 Pa. 537; Zotter v. R. R., 280 Pa. 14; Lessig v. Transit Light Co., 270 Pa. 299.
As he approached 77th Street and started to make the turn he saw defendant's car approaching from the west about 400 feet away. He slackened his speed to ten miles an hour but did not look again until his front wheels were across the first rail of defendant's east bound track, and then defendant's car was distant from 125 to 150 feet away. Thinking, he said, that he could clear the track he proceeded and was struck before the truck was clear of the track and overhang of the car. In doing this he violated the well-established rule which required him to look for the defendant's car just before entering on the track: Smathers v. Pittsburgh Butler St. Ry. Co., 226 Pa. 212, 215; Benamy v. Reading Transit Light Co., 269 Pa. 372, 373; Camac v. Phila. R.T. Co., 269 Pa. 543, 544; Kalter v. Phila. R.T. Co., 95 Pa. Super. 116, 121; Thornton Fuller Auto Co. v. Phila. R.T. Co., 95 Pa. Super. 286, 288. When he looked the second time he was already in a place of danger, with his front wheels over the first rail where it would have taken as long to stop and reverse and back off as to go ahead and clear the track.
The accident there was caused by the plaintiff's automobile stalling on the track and the trolley car slowly but negligently running into it, because the motorman was not looking ahead but was busy counting his money. We had no intention, in that case, of weakening the general rule that the driver of a motor vehicle intending to cross a trolley track must look for the trolley car just before entering the track, and must not proceed to cross, unless the trolley car is so far distant that considering the speed at which it is then moving, in the exercise of ordinary, prudent judgment, he is justified in concluding that he can safely make the crossing: Burke v. Union Traction Co., 198 Pa. 497; Bane v. Pittsburgh Rys. Co., 243 Pa. 427; George v. Phila. R.T. Co., 285 Pa. 362; Kalter v. Phila. R.T. Co., 95 Pa. Super. 116; Thornton Fuller Co. v. Phila. R.T. Co., 95 Pa. Super. 286. The first and third assignments of error are sustained.