Lawrence v. Pendleton Street Railroad

Ohio Superior Court, Cincinnati

Lawrence v. Pendleton Street Railroad

1 Cin. Sup. Ct. Rep. 180

DecidedJanuary 15, 1871

StatusPublished

This text of 1 Cin. Sup. Ct. Rep. 180 (Lawrence v. Pendleton Street Railroad) is published on Counsel Stack Legal Research, covering Ohio Superior Court, Cincinnati primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lawrence v. Pendleton Street Railroad, 1 Cin. Sup. Ct. Rep. 180 (Ohio Super. Ct. 1871).

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Opinion

Taft, J.

The question of negligence in cases of this

kind, though a question of fact, is often a nice one, and difficult to determine. The care of a driver of a street car is due mainly to his horses and to what can be seen in front without looking back; so that if he keeps a close watch forward, and is vigilant -to see and avoid any obstruction on or near the track in front of him, he can not? ordinarily, be held guilty of negligence, if he omits to keep a constant watch of each side of the car to the rear of the front platform and the forward wheels, to see that no person or animal is injured by coming laterally into collision with the side or rear wheels of the car. This was the doctrine of the recent case of Bulger v. The Albany Railway, 42 New York, 459; which was the case of a child of tender years injured by approaching the street ear from the side unseen, and falling under the rear wheel of the car on that side. But if he saw that the animal was loose, and was running or backing into the danger of getting under the rear wheel, it would undoubtedly be his duty to stop. Ordinarily, also, we should regard it as negligence, on the part of the owner of a horse, to leave [182]*182him loose on the street, liable to be run against by the cars. But this horse was in charge of a boy, and we are not able to say, positively, that the boy was guilty of carelessness in letting the horse get beyond his control just at that time; or that the owner was guilty of want of ordinary care by leaving the boy in charge of the horse. These all seem to be questions for the jury, as well as the question whether the driver of the car was guilty of negligence in not stopping when he saw the horse loose and the boy trying to get him under control, while the horse was backing toward the car.

If the case had been submitted to our judgment upon the evidence just as we find it reported in the bill of exceptions, we might, possibly, have found for the defendant, on the ground that the evidence did not satisfy us that the injury was caused by the negligence of the agents of the defendant, without the contributing negligence of the plaintiff or his agent. But it is a case of weighing testimony, in which we can not say with confidence which party is right. Here are circumstances favoring both theories of the'case. The jury have weighed these circumstances, and it was their province to do so, and they have found for the plaintiff. We do not regard it as a case in which we ought to interfere with the finding of the jury.

It is not claimed that there were errors on the'part of the judge before whom the case was tried, except in refusing to grant the motion for a new trial, and we can not gay that there was error in that.

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Taft, J.

The question of negligence in cases of this

kind, though a question of fact, is often a nice one, and difficult to determine. The care of a driver of a street car is due mainly to his horses and to what can be seen in front without looking back; so that if he keeps a close watch forward, and is vigilant -to see and avoid any obstruction on or near the track in front of him, he can not? ordinarily, be held guilty of negligence, if he omits to keep a constant watch of each side of the car to the rear of the front platform and the forward wheels, to see that no person or animal is injured by coming laterally into collision with the side or rear wheels of the car. This was the doctrine of the recent case of Bulger v. The Albany Railway, 42 New York, 459; which was the case of a child of tender years injured by approaching the street ear from the side unseen, and falling under the rear wheel of the car on that side. But if he saw that the animal was loose, and was running or backing into the danger of getting under the rear wheel, it would undoubtedly be his duty to stop. Ordinarily, also, we should regard it as negligence, on the part of the owner of a horse, to leave [182]*182him loose on the street, liable to be run against by the cars. But this horse was in charge of a boy, and we are not able to say, positively, that the boy was guilty of carelessness in letting the horse get beyond his control just at that time; or that the owner was guilty of want of ordinary care by leaving the boy in charge of the horse. These all seem to be questions for the jury, as well as the question whether the driver of the car was guilty of negligence in not stopping when he saw the horse loose and the boy trying to get him under control, while the horse was backing toward the car.

If the case had been submitted to our judgment upon the evidence just as we find it reported in the bill of exceptions, we might, possibly, have found for the defendant, on the ground that the evidence did not satisfy us that the injury was caused by the negligence of the agents of the defendant, without the contributing negligence of the plaintiff or his agent. But it is a case of weighing testimony, in which we can not say with confidence which party is right. Here are circumstances favoring both theories of the'case. The jury have weighed these circumstances, and it was their province to do so, and they have found for the plaintiff. We do not regard it as a case in which we ought to interfere with the finding of the jury.

It is not claimed that there were errors on the'part of the judge before whom the case was tried, except in refusing to grant the motion for a new trial, and we can not gay that there was error in that.

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Bluebook (online)

1 Cin. Sup. Ct. Rep. 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawrence-v-pendleton-street-railroad-ohsuperctcinci-1871.