Opinion
March 5, 1909.
Henry M. Dater [ George F. Elliott with him on the brief], for the appellant.
D.A. Marsh [ George D. Yeomans with him on the brief], for the respondent.
The learned court at the trial directed a verdict for the defendant, and under the well-established rule the plaintiff is entitled to the most favorable view of the evidence on this appeal. There is evidence in this case which, in our judgment, should have been submitted to the jury. The plaintiff was a passenger upon one of defendant's cars on the 7th day of August, 1905. The car was running along South Fourth street upon the defendant's double-track line. Coming in the opposite direction, in plain view for a distance of 200 feet, was a heavy brewery truck. The street was narrow and the truck was in the opposite track. It was followed by another car of the defendant, and the motorman of that car was ringing his gong for the right of way. With these conditions in front of him, the motorman appears to have paid no attention, except to keep his eyes upon the track upon which he was running, and the driver of the truck, apparently in response to the demand of the car behind him, turned in upon the track upon which the car on which the plaintiff was a passenger was running, and the pole of his wagon collided with the front of the car, throwing the plaintiff out of the car and producing pains in her abdomen, headaches and a nervous shock, confining her to her bed for some little time. While the testimony of the plaintiff's witnesses is perhaps inexact, we believe it is capable of the construction that the truck was from one to two hundred feet away when it turned upon the track where the accident occurred, and the defendant's own witnesses place the distance at from ten to thirty feet, and if the distance was thirty feet or more, under the circumstances, it was for the jury to say whether the defendant's motorman was exercising that degree of care which the defendant owed to a passenger. The respondent lays stress upon the fact that the accident occurred in the middle of a block, where the car had the paramount right, but the doctrine of paramount right has very little relation to a situation of this kind. It is important as between parties using the highway; it would be important in determining the question of negligence between the truck driver and the motorman, but it can have only the most incidental bearing upon the question of the defendant's duty toward its passengers. The car is in the exclusive control of the defendant, and it owes the duty of exercising due care to avoid injury to its passengers, and if this requires the surrender of its rights as against another vehicle in the highway, then it is its duty to surrender that right. The plaintiff showed a situation where the motorman was under obligations, in the discharge of his duty to the passengers, to exercise a high degree of care in the operation of the car, and it was for the jury under proper instructions to say whether that care had been exercised. These questions were properly raised by the plaintiff, and having waived none of her rights, the judgment appealed from should be reversed.
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
JENKS, GAYNOR, RICH and MILLER, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.