Cincinnati St. Ry. Co. v. Whitcomb

66 F. 915, 9 Ohio F. Dec. 5, 1895 U.S. App. LEXIS 2707

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 4, 1895
• Docket: No. 251
• Status: Published

Opinion

TAFT. Circuit Judge

(after stating the facts). The general verdict of the jury was evidently based on the finding that the injury to the plain tiff's person was caused by the negligent backing of the car after the first collision, and not by a second collision. It is argued that this is such a variance from the charge of negligence in the petition that judgment should have been entered for the defendant, The petition charged that the backing was negligent, and that the moving forward to the second collision was negligent, but ascribed the injury to the second collision. The evidence of the plaintiff tended to show that the injury was due to the second collision. The evidence of the defendant, however, tended to show that the injury was due to the backing alone.

Section 5204 of the Revised Statutes of Ohio provides that:

“No variance between tlie allegation in a pleading, and the proof, shall be deemed material, unless it has actually misled the adverse party 1o his prejudice, in maintaining his action or defense upon the merits, and when it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled: and thereupon the court ma.y order the pleading to be amended upon such terms as are just.”

Hection 5295 provides:

“When the variance is not material, the court may direct the fact to be found according to the evidence, and may order an immediate amendment, without costs.” '

Section 5296 provides:

“When the allegation of the claim or defense, to which the proof is directed, is unproved not in some particular or particulars only, hut in its general scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof.”

In Hoffman v. Gordon, 15 Ohio St. 211, the petition charged defendant with flooding the plaintiff’s cellar by obstructing the street, and the answer denied the charge. On the trial, evidence admitted without objection showed that the flooding was occasioned by defendant’s wrongful opening of the sidewalk, making a channel through which the water was forced into the cellar by obstructions placed in the street by others. It was held not to be error for the court, although no amendment of the petition was asked or made, to find upon this evidence for the plaintiff, and to render judgment accordingly. Such proceeding was held by the court to be in conformity with the sections of the Ohio Code above quoted. Said the court, Judge Welch pronouncing the opinion:

“The evident object of the Code is to vest in the court a discretion, where it can be done without surprise or injury, to try the case upon the evidence, outside of the pleadings; and, if objection be made, to allow the pleadings to be conformed to the evidence, at once and without terms. When a trial is so had, without objection, we are only carrying out the spirit of the Oode, by refusing to reverse the proceedings on account of the variance. Had this evidence been objected to when offered, it is quite apparent that the plaintiff would have ashed and obtained unconditional leave to amend. To allow* the defendant, after he has suffered the evidence to go to the jury without objection, to reverse the judgment on that account, • would be manifestly unjust to the other party.”

Iu the present case the plaintiff asked the court to be allowed to make an amendment to the petition to conform to the theory of the case by which the injury was caused by the negligent backing. This was objected to by the defendant, and the motion was denied, on the ground that it was unnecessary. We think the ruling of the trial court that the Variance was immaterial was correct. Certainly, the defendant could not be surprised by the evidence that the injury to the plaintiff was occasioned by the backing of the car, because that evidence was introduced on its behalf, and the application of the plaintiff was only to amend his pleadings to accord with the evidence brought out by defendant. The case was tried on the theory that either in the first collision, in the backing, or in a second collision, there was negligence, causing the injury complained of; and a verdict on either ground might have been properly sustained, without surprise or prejudice to defendant.

Secondly, it is said that the judgment for the plaintiff cannot be supported because the findings and disagreements of the jury are inconsistent with the general verdict. The jury found that the injury was caused by the backing of the car. They disagreed as to whether the reversal of the motor, which caused the backing, occurred before or after the first collision; but they necessarily agreed that, whether the reversal of the motor occurred before or after the collision, the backing of the car was the result of the motorman’s negligence. There was evidence tending to show that, oven if the re versal took place before the collision, the backing1 could have been avoided by due care of the inotoruum after the collision. The motorman was asked by counsel for the plaintiff:

“Q. Now, when the car started back, the motor having1 been reversed, what effort, if any, did yon make to stop that ear? A. In going1 back? Q. Xes. A. Well, 1 saw I was releasing1 the man, and was not doing him any harm, and 1 let (he car go back then. (). About how far? A. Well, between four and six feet.”

This tended to show that, whether the reversal of the motor occurred before or after the first collision, the subsequent backing of the car was voluntary on the paid of the motorman, and might have been stopped by him. As the jury found that the reversing was the cause of the injury to Whitcomb, and that it was negligent, a finding by the jury as to when it took place with reference to the first collision was immaterial, and a disagreement as to such a fact could not affect the validity of the verdict. This covers all the assignments of error except those which are based on the charge of the court.

The exceptions to the charge of the court are very voluminous, very long, and many of them are quite frivolous. Generally, the exceptions to the charge may be comprehended under three heads: First, the court was asked to charge the jury that it was the absolute duty of Whitcomb not only to look and listen for the coming of the ear, but also to stop, look, and listen. It certainly is not the law that persons crossing street-railway tracks in a city in a vehicle are obliged to stop before crossing, unless there is some circumstance which would make that ordinarily prudent. We have already held in the cases of Railroad Co. v. Farra, 66 Fed. 496, and McGhee v. White, Id. 502, that it is not the absolute duty, as matter of law, for one crossing a steam-ra.ilwav track to stop, look, and listen, hut that the necessity for stopi>ing is to be determined by the circumstances, and is usually a question to be left to the jury, and so the court below in this case treated it. The rule cannot be stricter in respect to crossing a street railway (ban in crossing a steam railroad. The cases relied upon are chiefly Pennsylvania, cases. In that state the supreme court has adopted a rule of law requiring every person to stop, look, mid listen before crossing the railroad track. This rule is not: followed in other status, and certainly is not the law in the federal courts.

The second general objection to the charge of the court is that it declined to give an instruction that the street railwayhadthe paramount right of way in the street. The court below seems to have considered that the word “paramount” was likely to mislead members of the jury, and to give them the impression that the railroad company had the exclusive right to the street between the tracks. The court did say to the jury this:

“The electric street-car tracks of the street railway company along Hunt street, along' which plaintiff was driving', were in and of themselves a warning to Whitcomb that a car might at any time approach upon the track towards which or upon which he was driving. Gentlemen, I said to you this morning that the street-railway company had the right to use the streets; that the plaintiff had the right to use the streets. None of them had an exclusive right, but there is this one qualification with reference to street cars passing along the street as provided for in the ordinances of - the city, which are in evidence. Wherever a wagon or other vehicle is on the track in advance of a car, it is bound to get out of the way, and not to obstruct the passage of the car.”

This is a correct exposition of the relative rights of the street-railway companies and the rest of the public who use the street. If this is all that the word “paramount” means, then the court, in effect, charged the jury that the street-railway company had the paramount right to use the space between its tracks upon the street. If “paramount” means more than this, the charge requested should not have been given. We cannot therefore see that the defendant was prejudiced by the action of the court upon this charge.

Finally, it is objected that the court imposed upon the railway company a higher degree of care than the law justifies in avoiding collisions with vehicles upon its track. The court was requested to give the following instruction:

“While it is the duty of the company to exercise ordinary care and diligence to avoid collision and other accidents, the rule does not dispense with care and prudence on the part of persons who use the street in common with the company. * * * I do not give this instruction exactly in the form in which it is asked, but I do give it substantially. It is not merely ordinary care that this street-railway' company should exercise. In the movement of an electric car or of a horse car on the streets more care is required than in driving a wagon, because it is a larger vehicle and moves more rapidly. It is of greater weight and momentum, and it cannot be stopped so easily. When it comes to moving an electric car, which weighs, according to the testimony, about eight tons, and is impelled by a motor of sixty horse power, — thirty times the power applied to an ordinary horse car, and moving it more rapidly, with its greater weight and momentum (the testimony in this case is that a car, when in full speed, can be stopped in about three lengths of the car; that is, about ninety feet), — all these circumstances increase correspondingly the requirements as to the management of the car. It' is the duty of the company to exercise proper care, for the reasons that I have given.”

We think this charge correctly stated the law. The court was evidently attempting to -avoid giving the impression to the jury that a company operating a machine of the great force and power of an electric car upon a. street upon which other vehicles might lawfully travel was not required to use any more care in this operation than the driver of an ordinary wagon or the driver of an ordinary street car. He, therefore, very properly called the attention of the jury to the distinction between the requirements in the one case and in the other. It is true, speaking strictly and technically, that one is only required to use the care in the manipulation of any machine with reference to the rights of others which the ordinarily prudent man would use. But the standard of ordinary care is not absolute; it varies according to the circumstances, and according to the possible or probable danger which may arise from the use of the instrument. The court did not tell the jury that the street-railway company was obliged to use the highest degree.of care, but only a proper degree of care, considering the possibility of danger from the instrument it was operating. This, we think, is quite in accordance with the ruling of the supreme court in the case of Railway Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932, where it was held that the charge to the jury that the railway company, in the selection of its night telegraph operators, was under a duty to its other employés to exercise proper and great care to select competent persons for that branch of the service, was a correct statement of the law to the jury, because of the very delicate and responsible duties which telegraph operators were obliged to discharge. So here. Accidents from electric street railways are numerous. A speed of 10 miles an hour in a traveled street, with a car weighing from six to eight tons, and having such momentum that it cannot be stopped short of 90 feet when running at full speed, certainly imposes upon those who choose to operate it the duty of great care to avoid collisions with persons who are lawfully upon a street; and while it is true that such care, owing to the circumstances, would be but ordinary care, the expression “ordinary care” is one which might give the jury a wrong impression in such a case, and the court properly exercised its discretion to couch its language in a form legally equivalent and less likely to mislead.

Finally, exception was taken to that part of the charge where the court told the jury that even though the plaintiff were negligent, if the defendant, having observed the negligence, might have avoided its effect by due care, the defendant was liable. This charge was not only good law, but was especially applicable to the circumstances of this case, because there was much evidence tending to show that the injury to plaintiff’s person occurred through the negligence of the motorman of the defendant after the ñrst collision had taken place, from an unnecessary and ill-advised backing of the car when the plaintiff was in a helpless position, but still remained uninjured. The principle has been several times announced in this court. Mississippi Valley Co. v. Howe, 6 U. S. App. 172, 3 C. C. A. 121, and 52 Fed. 362; Louisville & N. R. Co. v. East Tennessee, V. & G. R. R., 9 C. C. A. 314, 60 Fed. 993; Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653; Railroad Co. v. Kassen, 49 Ohio St. 230, 31 N. E. 282.

Finally, it is objected that the court admitted evidence to show that it was the custom in Cincinnati for wagons to keep to the right on a traveled street. This was introduced upon the issue made by the defendant that the plaintiff, when he reached the wrecked malt wagon, should have crossed the track to the left side of the street, instead of driving on to and along the tracks and around the malt wagon, keeping all the while on the right side. The custom was not a very material circumstance, but it was not improperly introduced, for it showed a reasonable motive in the plaintiff not to cross clear over because he would be obliged to come back in order to observe the custom to keep upon the right-hand side of the street as he drove. The court left it to the jury to say whether, under all the circumstances, it was Whitcomb’s duty to cross the track to the other side of the street, and simply allowed the introduction of evidence as to custom to suggest a reason (the weight of which was left to the jury) for his wishing to remain on tbe right side of the street, if he could otherwise and without negligence do so. Certainly, its introduction was not a reversible error.

On the whole case, we find no error, and we affirm the judgment, with costs.