Spiking v. Consolidated Ry. & Power Co.

93 P. 838, 33 Utah 313, 1908 Utah LEXIS 11

• Court: Utah Supreme Court
• Decided: January 25, 1908
• Docket: No. 1874
• Status: Published

Opinion

FRION, J.

This is an action for damages for personal injuries resulting in death. The plaintiffs, respondents in this court, are tbe widow and minor children of the deceased, Thomas W. Spiking, who, in August, 1902, was fatally injured by a street car while attempting to cross the street railway tracks on one of the streets in Salt Lake City. The acts of negligence charged against the defendants, appellants here, are: The omission to sound a gong or ring a bell, or to give any warning of the approaching car; the omission to have the headlight on the car lighted, and in omitting to have any lights on the car; the omission to have the car provided with a fender or guard of any kind; operating the car at a high and reckless rate of speed with the brakes released, and not having the car under the control of the motorman or any other person while approaching and passing onto a certain switch, the place of the accident, and in omitting to look and ascertain whether the track was clear and free from persons passing to and fro at the point of the accident. The evidence is very voluminous, over thirty witnesses having been examined, a number of whom were eye witnesses to the accident; and, as is usual, there -is a conflict with regard to just how and when certain matters occurred, and with regard to the existence or nonexistence of others. From a careful reading of the entire transcript of the evidence, the following facts may be said to. be fairly established: The point, or immediate vicinity, of the accident, is one of the principal business centers of Salt Lake City. The accident occurred on East Second South street, about eighty-five feet east of the east crossing of Main street, at which crossing the two streets intersect. At the time of the accident the appellants operated cars on three tracks on East Second South street running parallel, two. of which continued west across Main street, and the third, being the north track, terminated at the point of the accident in a switch which connected it with the middle one of the tracks mentioned. The north rail of tbe northerly track was twenty-eight feet south of the north curb of East Second South street. At the time of the accident there was no overhead or trolley wire connecting the north with the middle track, and 'the cars going west on the north track were switched onto the middle, track by what is termed a “flying switch,” which was accomplished by the momentum acquired by the car in approaching the switch. On the north and middle tracks the cars went west, while on the south track they went east. On the night of the accident, August 16, 1902,' the car on the north track was due at the switch at twenty minutes past 10 o’clock, but arrived at that point at abopt eighteen minutes’past 10. As the car was approaching westerly toward the switch, the deceased was seen by a number of witnesses to start from the north curb on Second South street, thence going in a southerly direction toward a car just starting east on the south track, which oar would pass his home. Two witnesses testified on behalf of appellants, who were passengers on the car that struck the deceased, which was an open or summer car, that they saw the deceased start from the point stated, and saw him running or going hastily south towards the car on the south track. In the course the deceased was going he would cross the north track at the switch, and when he arrived there the car in question had also arrived at the switch, and the' deceased collided with the front end of the car, which knocked him down, and he fell under the car, and the wheels of the rear trucks passed over one of his legs and one foot, crushing them, so. that in a few days thereafter he died from the effects of the injuries. A number óf witneses testified that the car was running at a' high rate of speed in approaching the switch, others said it was running faster than usual, while the motorman testified that it was moving at from 4^ to six miles an hour. 'All the witnesses concur that no gong or bell was sounded, nOr any warning of the approach of the car given. Some of the witnesses testified that there was no lighted' headlight on the car, and all agree that just before the collision, or at the instance at-which it occurred, all the lights in the car went out. The current was cut off at the time on account of the trolley leaving tbe north wire in making the cross-over from the north to the middle track, and the brakes were released so as not to arrest the speed of the car in making the cross over. The motorman did not look for nor see the deceased until the instant he was struck by the car, at which time the power was off, and the only way the speed of the car could be checked was by means of the hand brake, which the motorman applied. There were lights in the streets, and other lights from the surrounding business houses, so that the car could have been seen and was seen approaching from the east. The car was not provided with a fender or any guard. The Main street crossing across the trades for pedestrians was about eighty-five feet west of the switch where the accident occurred, but a large number of people habitually crossed the tracks at the point of the accident and immediately to the east thereof. A considerable number of people were about the place at the time of the accident, not directly at the switch, but near there, to the north and south of it. The cars on all the tracks habitually stopped just east of the Main street crossing to receive and discharge passengers. There is some evidence that the deceased, to some extent at least, was familiar with the conditions prevailing at and about the switch as outlined above. Whether the deceased saw the car approaching does not directly appear. It does, however, appear that he was hurrying to catch the outgoing car. At the time of the accident there was also a car approaching from the east on the middle track some little distance in the rear of the car on the north track. Upon substantially the foregoing facts, the court submitted the case to the jury, who returned a verdict for respondents, upon which a judgment was duly entered. A motion for a new trial having been duly made and overruled, the appellants prosecuted this appeal.

A great number of errors are assigned, but as counsel have condensed them in their brief and in their oral argument, we shall consider those only that are relied upon in the argument.

The first alleged error we shall consider is the one presented last in the brief, but, as it logically comes first, we shall reverse the order. It is urged that the court erred in refusing to direct a verdict for the appellants upon the ground that the deceased was guilty of contributory negligence as a matter of law. In support of this contention it is asserted that the facts of this case bring it within the rule of Teakle v. San Pedro, L. A. & S. L. Ry. Go. (Utah), 90 Pac. 402, 10 L. R. A. (N. S.) 486, in which we held that a person, while walking along the railway tracks in the yard of the railway company and stepping in front of a moving train of cars without looking or listening when he knew the cars were being moved, was guilty of negligence as matter of law. It is contended that the uncontradieted testimony in this case is to the effect that the deceased by the exercise of ordinary care could have seen the approaching car in time to avoid the accident, and that, as matter of law, he must be held to have seen it, and that, therefore, he was guilty of negligence in attempting to cross the track ahead of the approaching car. That the car could have been seen approaching from the east for a distance of nearly a block there is little, if any room for doubt. That the deceased was required to exercise ordinary care for his own safety, and to that end make use of all of his faculties for seeing and hearing, no one questions; but whether he was required to exercise tlje same degree of care in attempting to cross a street railway track as in making a similar attempt with regard to a steam railroad, the authorities differ. Some of the cases cited by counsel for appellants, namely, Cawley v. La Crosse City Ry. Co., 101 Wis. 145, 77 N. W. 179, and Young v. Citizens’ St. Ry. Co., 148 Ind. 58, 44 N. E. 927, 47 N. E. 142, and perhaps a few others, hold to the doctrine that the degree of care on the part of the pedestrian is the same in both cases- — that is, that he must both look and listen — and in one ease, at least, it is held that he must also stop to do so before crossing a street railway track. But the overwhelming weight of authority, including the decisions of this court, is to the contrary. It would seem to require but slight reflection to realize that, in the nature of things, there must be considerable difference between an Attempt to cross a street railway and a steam railway, or in passing along the tracks of the one or the other. Without stop-ing to point out all the differences, we may be permitted to call attention to one of the fundamental differences between street and steam railways. The part of the street on which a street railway track is laid, and over which cars are operated, is not withdrawn from public use and travel. The rights and duties of the public and the street car operatives are mutual and reciprocal. The only right that the operators of a street railway possess over the public generally is a preferential right of passage over the tracks with the cars, and that between public crossings it is always the duty of the pedestrian or the person .driving a vehicle to see to it that he does not impede the street car. But the street car company, in operating its cars, must likewise at all times and places exercise ordinary care so as not to injure any one who may be on or near the track, and at public crossings must have its cars under the control of the operator, and must exercise reasonable care to have them so in approaching the crossings; the decree of care to be exercised always depending upon the prevailing circumstances' and conditions. As a general rule, therefore, where a collision occurs between a person lawfully using the street and a street car, the question as to whether the operator or such person, or both, were exercising the degree of care that the law imposes is a question of fact depending upon all the surrounding circumstances and conditions. The reciprocal rights and duties of persons and street railway companies in the usé of the streets is well expressed in Campbell v. Los Angeles Tr. Co., 137 Cal. 565, 70 Pac. 624, where, at page 566 of 137 Cal., page 625 of 70 Pac. it is said:

“But, as has been frequently held by this court, the same character of care is not demanded of one crossing a street railroad, where cars are frequently passing ait a slow rate of speed and can he easily controlled, as is demanded of one crossing an ordinary steam railroad running through the country, on which heavy trains, difficult to control, go at stated times with great speed. With respect to a street railroad, the mere fact that a person attempts to cross, it when a car is seen to be approaching does not of itself constitute negligence. . . . Ordinarily, whether or not he (the person crossing) was negligent in attempting to cross, under the circumstances of the case, is a question for the jury.”

The same thought is expressed in Hall v. Ry. Co., 13 Utah, 258, 44 Pac. 1049, 57 Am. St. Rep. 726, in the following language:

“Persons traveling on the public street, along or across a street railway track, are not held to the exercise of the same degree of care and precaution as they are when traveling along, or upon, or across the ordinary steam railroad.”

To the same effect is Thompson v. S. L. Rapid Tr. Co., 16 Utah 289, 52 Pac. 92, 40 L. R. A. 172, 67 Am. St. Rep. 621. The case of Marden v. Portsmouth, etc. R. Co., 100 Me. 41, 60 Atl. 530, 69 L. R. A. 300, 109 Am. St. Rep. 476, is a well-considered case, in which a large number of cases of this class are reviewed, and where the Utah cases are cited with approval. In Benjamin v. Holyoke St. Ry., 160 Mass. 3, 35 N. E. 95, 39 Am. St. Rep. 446, in referring to this subject, it is said:

“The use of the street for electric cars and by the general public was concurrent; and the defendant (the company) was bound, in using the street, to have reference to its reasonable use by others.”

We have examined a large number of cases, and, from the decisions, we are forced to the conclusion that, where the conditions and circumstances are as they were in the case at bar, the question of negligence is within the province of the jury, in addition to the cases already mentioned, we cite the following well considered cases: Robbins v. Springfield St. Ry., 165 Mass. 30, 42 N. E. 334; Newark Pass. Ry. v. Black, 55 N. J. Law 611, 27 Atl. 1067, 22 L. R. A. 374: Lawler v. Hartford St. Ry., 72 Conn. 74, 43 Atl. 545; Shea v. St. Paul City Ry., 50 Minn. 395, 52 N. W. 902; Holmgren v. Twin City Rapid Tr. Ry., 61 Minn. 85, 63 N. W. 270; Clark v. Bennett, 123 Cal. 275, 55 Pac. 908; McClain v. Brooklyn Ry., 116 N. Y. 459, 22 N. E. 1062; Copeland v. Met. St. Ry. 67 App. Div. (N. Y.) 483-485, 73 N. Y. Supp. 856.

• Tbe law required that tbe deceased exercise ordinary care for bis own safety. To tbis end be was required to make use of all of bis senses to avoid injury. Did be meet tbis legal requirement at tbe time and place of tbe accident ? It is easy enough to assume, when viewing tbe matters retrospectively, that one has failed in tbis, that, or tbe other thing, and, if be -bad not so failed, be would not have been injured. In view of all tbe circumstances, may not reasonable men differ with regard to bis conduct, as disclosed by tbe evidence, just before and at tbe time of tbe accident ? May not, likewise, reasonable men draw different conclusions from tbe conceded facts? Tbe deceased bad a right to cross tbe track in an attempt to board tbe street ear on tbe southerly track. He bad a right to do so even hastily, provided be exercised ordinary care for his own safety in view of bis surroundings. He may have seen the car on tbe north track approaching from tbe east. He may have assumed that it would reduce its speed on nearing tbe cross-over switch. But whether he saw it or not, tbe jury bad a right to determine from all tbe facts whether or not be acted with reasonable care, and whether tbe motorman, in approaching tbe switch, did likewise. Moreover, as the car was approaching a place where a considerable number of persons habitually crossed the track, a place near tbe public crossing on Main street, and immediately east of which tbe cars habitually stopped to take on and discharge passengers, tbe deceased might have assumed that, if tbe motorman intended to make tbe cross-over without reducing tbe speed of tbe car, be would give some warning of bis intention to do so. If tbe motorman bad done either, it is quite probable that tbe accident would not have occurred. Under all these circumstances, it was a question of fact for tbe jury to say whether tbe deceased was guilty of negligence which directly contributed to.tbe accident. Even an error of judgment by tbe pedestrian, based upon some act or duty required of tbe company or its servants may be taken into consideration in determining who is in tbe wrong. Tbis is well illustrated in tbe case of Copeland v. Met. St. Ry., supra, where a woman, in attempting to cross a street car track ahead of an approaching car which she saw coming toward the point where she intended to pross, was struck and injured while in the act of crossing. The court, in referring" to her conduct, used this language: “Her judgment that she could cross in safety was in fault only because of the fact that the motorman had decided not to stop in answer to the signal, ‘Slow down;’ nor did he, by the ringing of a bell, notify her of his intention.” The car in that case was signaled to stop by the woman’s son. It was a car which did not stop at the particular point, and proceeded on its course, and reached the point where the woman crossed the track in less time than she had calculated, and was injured by reason of this miscalculation. The case of McClain v. Brooklyn Ry., supra, is likewise one where the facts and circumstances were in some respects similar to those at bar; and in that case it was also held that the conduct of the parties involved questions of fact to be determined by the jury. It may be that in some of the cases the conduct of the pedestrian may be of such a character that the question is one of law merely. The case of Boring v. Union Trac. Co., 211 Pa. 594, 61 Atl. 77, affords an illustration of that class. There the injured person walked along the side of the street railway track ahead of an oncoming ear, and, without looking, suddenly stepped onto the track in front of the car, and was struck and injured. It was held that the injured person was negligent as a matter of law. We are, however, not dealing with such a case. In this case there were many matters to be considered, on at least some of which reasonable men might arrive at different conclusions. The Teahle Case, supra, was entirely different in this respect from the case at bar. There only one conclusion was permissible from the conceded facts; and hence it was a question of law, and was decided as such. We are convinced that the court committed no error in submitting the case to the jury.

The next assignment to be noticed, briefly stated, arises as follows: Mrs. Spiking, one of the respondents, testified as a witness in the case, and, before the respondents rested, counsel for appellants asked leave to recall her for further cross-examination. After this was concluded, her counsel proposed to ask her a further question upon a matter which he said was not proper on redirect, but desired to ask it because it had been overlooked. No objection being made, counsel asked the following question: “How was Mr. Spiking as to being a careful and cautious man?” The witness answered: “Yes, sir; he was very careful.” Counsel for appellants offered no objection to the question, but immediately after the answer moved to strike it out as “irrelevant, immaterial and incompetent.” The court denied the motion, and permitted the answer to stand. Counsel for appellants now urge that the court erred in refusing to strike out the answer. That the evidence of the character contained in the foregoing answer is improper in view of all the evidence in the case must be conceded. This is well illustrated by the following authorities: Adams v. C. M. & St. P. Ry., 93 Iowa, 565, 61 N. W. 1059; Louisville Ry. Co. v. McClish, 115 Fed. 268, 53 C. C. A. 60; Glass v. Memphis & C. Ry., 94 Ala. 591, 10 South. 215; Chase v. Maine C. Ry., 77 Me. 62, 52 Am. Rep. 744; Towle v. Pac. Imp. Co., 98 Cal. 342, 33 Pac. 207. Some of the authorities are to the effect that, where there are no eyewitnesses in a case of death by accident, such evidence is proper. (1 Shear. & Pedf., Ev. [5th Ed.], section 111; 1 Elliott, Ev. section 217.) Conceding the evidence to be improper, can this court review the alleged error in view of the state of the record ?' The question was one propounded immediately after opposing counsel’s attention was directed to the fact that the question would be asked out of the regular order. The question upon its face was one that indicated what the character of the answer thereto would be. The answer of necessity would be that deceased was either a careful man or a careless man. If the answer was that he was a careful man, then appellants’ counsel did not want it, and, if it had been to the contrary, l-espondents’ counsel would have been opposed to it. But either way the testimony was improper. This is always the result, with regard to improper testimony, under conditions as above indicated; and in view of this the courts have evolved and adopted a rule of practice which is that where the question fairly indicates what the nature of the answer will be, then the adverse counsel must object to the question and obtain a ruling, and save an exception to make the error, if any be committed, available in a court of review. Error may not be predicated upon a denial of the motion alone. This rule is well stated in People v. Williams, 127 Cal. 216, 59 Pac. 583, in the following words:

“When it is apparent from the question that the answer will contain evidence necessarily inadmissible, then the motion to strike out comes too late, unless preceded by an objection to the question; but the rule is otherwise when the evidence may, or may not, be admissible.”

The authorities are numerous to this effect, and among which we refer to the following: Taylor v. Stale, 100 Ala. 68, 14 South. 875; Way v. Johnson, 5 S. D. 237, 58 N. W. 552; Wendt v. B. Co., 4 S. D. 476, 57 N. W. 227; Cleveland C., C. & I. Ry. Co. v. Wynant, 134 Ind. 681, 34 N. E. 569; Gran v. Houston, 45 Neb. at page 836, 64 N. W. 245; McClellan v. Hein, 56 Neb. 600, 77 N. W. 120; 3 Jones on Ev., section 898; 22 PL & Pr. 1310. In the foregoing cases, excepting those from Nebraska, where the record is like the one before us, it is held that the alleged error is not reviewable. In Nebraska, however, it is held that the motion to strike out is always addressed to the sound legal discretion of the trial court, and that a clear abuse of this discretion is always reviewable. If we adopt the rule generally recognized, we cannot review the alleged error, because under that rule a failure to object to the question waives the error. What would be the result if we should adopt the Nebraska rule? Has the trial court so clearly abused his legal discretion that, in view of the state of the record, error may be predicated thereon? When the motion to strike out was made, counsel for appellant offered some excuse for not making an objection before the question was answered. Whether the excuse was well founded depended upon the circumstances, all of which occurred in the presence of the court, and he necessarily deemed the excuse insufficient. We arrive at this conclusion from tbe fact that at various times during tbe trial, where answers bad been made before an objection either was or apparently could have been interposed, tbe court permitted .counsel on both sides to make objections, obtain rulings thereon, and take exceptions, so that tbe point could be reviewed by this court. In this instance no such permission was asked. If we attempted to review tbe action of tbe court from this point of view, we would have to bold that in tbe light of tbe record the court did not abuse its discretion in denying tbe motion to strike out tbe answer. We do not wish to be understood as holding that in no case where improper evidence was elicited in this way, which in and of itself either made a case or stated a defense it would not be held that the action of the trial court in denying a motion to strike out, when timely made, would not be reviewed. In such a case the record upon its face might show an abuse of discretion. Such is not the case before us, and therefore this assignment cannot be sustained.

The remainder of the assignments all refer to the instructions. In passing upon those alleged errors the length of the instructions makes it impracticable to set them forth in full. We, therefore, can do no more than to refer to the particular parts of which complaint is made. The instructions given by the court cover twenty typewritten pages of legal cap, and the requests cover twenty-one pages in addition to those given. There are many exceptions to those that were given, and many more to the refusal of requests not given.

The first assignment to be noticed relates to the refusal to give two special requests offered by appellants, and in the giving of an instruction upon the same subject by the court. In the complaint negligence was predicated upon the failure of appellants to equip the car with a fender or guard of some kind. At the trial respondents produced a witness who had been employed as a motorman and gripman for a period of nearly eight years on cars propelled by electricity and cable in various cities from Chicago to the Pacific Coast, including Salt Lake City. Counsel for respondents asked the witness whether or not, during the time that he' was employed as motorman or gripman, cars in the different cities were equipped with fenders. This evidence was objected to as “incompetent, immaterial, and irrelevant.” Counsel for respondents then, by various questions and offers which cover about ten pages of the transcript of the evidence, attempted to prove that the street cars, during the time the witness was employed as above stated, were equipped with fenders in the cities of Chicago, Omaha, Seattle, San Francisco, and Los Angeles, all of which wras objected to, and the objections sustained. After counsel had made repeated offers to get into the record the evidence with regard to the use of fenders, counsel for appellants suggested that the purpose for which fenders were used was a matter of common knowledge, and not a subject of expert evidence. The court adopted this view and ruled that thepnrposes for which fenders were used onstreet-cars was amatter of which judicialnotieecouldbetakenby both the court and jury. Thereupon counsel forappellantsobjeetedtoanyevidencewithregard to the use of fenders. Their objections were sustained. No evidence upon the subject of fenders was admitted, except that the car in question was not equipped with a fender or guard of any kind. Upon this state of the record, counsel for appellants requested the court to instruct the jury that there was no evidence “that at the time of the accident guards and fenders were in general use by companies, in similar business, doing their business in a prudent manner,” and that “there.is no proof of negligence against the defendants, or either of them, on account of there being no fender upon the car.” The court charged the jury upon this subject as follows: “If you find that such car did not have a fender, you cannot find against the defendants upon that alone, unless you find also from the evidence that, if the car had a fender, the accident might have been averted thereby.” It is strenuously insisted that the refusal to instruct as requested, and that the giving of the instruction quoted above, constitutes prejudicial error. It is urged that the instruction was not based upon a subject of which there was any evidence; that by the repeated decisions of this court instructions must be based upon the evidence, and to instruct upon a subject unsupported by evidence constitutes prejudicial error. Undoubtedly such is the general rule, which has been laid down by this and many other courts. Does tbe claim bere made come within the rule ? We do not think so, for several reasons. From what has been said it is apparent that both the court and counsel for appellant treated the purpose for which fenders were used on street cars as a. matter of general knowledge. If this was the correct view, then the object, purpose, and use of fenders was in the case to be considered by the jury, as if it had been testified to by witnesses. It is elemental that any facts which are generally known and accepted, and of which courts take judicial knowledge, are part of the case as facts, and the court may instruct upon them to the same extent as upon other facts. Counsel cannot at the trial obtain rulings in their favor upon objections to evidence upon the ground that it is immaterial because the matter is one of general and common knowledge and then urge on review that there is no evidence upon the subject to support an instruction. But, apart from this, there is room for the contention that the instruction, after it was modified by the court, in effect still was merely negative. The court told the jury that they could not find against appellants upon the omission to equip the car with a fender unless they fonnd that the accident could have been averted by the fender. When the court told the jury that they could not consider the absence of a fender unless they found that if one had been provided it would have averted the accident, he in effect told them that the fender was not in the case. All through the instructions, and in the evidence as well, where the term “accident” is used, it refers to the collision itself. If the court had used the term “collision” instead of “accident” in the instructions, all would at qnce agree that the presence of a fender could not have averted the collision. The fender was not calculáted, like a gong or a bell, or even a headlight, to apprise one of an approaching car so as to avoid it. A fender could have been used to prevent a person colliding with the front end of the oar from getting under the wheels by shoving him off the track or by carrying him along in front of the car. If the court had told the jury that a fender might be considered in case they found that it would have prevented the injuries — that is, the crushing of deceased’s leg and foot —there would be more force to counsel’s contention. Even then we think the instruction would not be subject to the criticisms made of it. We do not rest our decision with regard to this assignment upon what we have said about the negative' character of the instruction; what we have said was for the purpose of illustrating the point that the instruction is not necessarily open to the construction placed upon it by counsel.

Passing now t'o the claim made by counsel that by this instruction the jury were authorized to require from the appellants a standard of care in the conduct of their business different from that which may have been generally prevailing— that is, in view that there was no evidence in the record with regard to the use of fenders generally — the jury could not be permitted to say that not to use one on the car in question constituted negligence. It is true, as is well said in section 44 of Labatt on Master and Servant, that:

“The unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man.”

This doctrine with regard to the use of safety and other appliances is approved and adopted by this court in speaking through, the present Chief Justice, in the case of Fritz v. Electric Light Co., 18 Utah 493, 56 Pac. 90. We have no inclination to either question the soundness of the doctrine or to modify it; but we are convinced it is not applicable to the facts in this case. It does not follow that, because it may be necessary to prove that certain appliances are in general use before negligence can be predicated upon the omission to supply them, therefore the rule applies to all appliances of whatever kind or character, or for whatever purpose used. The purpose of some appliances may be so generally known that it becomes a matter of common knowledge; and therefore the proof in that regard may be dispensed with. This may be illustrated by referring to a few only of many instances that may be named. Would any one now assert that, before one could predicate negligence on the failure to provide a headlight on a locomotive engine during- its use at night, or in failing to provide oars in use with brakes, or in providing such locomotive engines or other boilers in use with what are known as “spark arresters,” proof would have to be made that such appliances are in general use? We think not, for the simple reason that the purposes of the appliances above mentioned have become so generally known that proof of the fact is wholly unnecessary. This in time will no doubt be true of some of the appliances which now require proof of general use. If this be so, does the fender, as applied to street cars, come within the category of appliances whose purposes are a matter of common knowledge? We think it does. It certainly has a clear and well-defined meaning; and its purpose has also received legal recognition. “Fender,” in 19 Cyc. 489, is defined as follows: “As applied to street railway cars, a guard or protection against danger to pedestrians.” In the case of Cape May Ry. v. Cape May, 59 N. J. Law, 403, 36 Atl. 699, 36 L. R. A. 653, in referring to the term “fenders” as used in an ordinance, where the objection was made that the use of the term “fenders,” without further definition, was vague and uncertain, and for that reason the ordinance was not enforceable, it was said, “The term Tender’ is well defined and readily understood as a guard and protection against dangers,” and the ordinance was accordingly enforced. If, therefore, the term “fender” has acquired a well-defined meaning in law, and its purpose is legally recognized and understood, it must be so-, because this meaning is the popularly and generally accepted meaning and purpose. The law does not precede but follows the popular and general understanding with regard to such matters. We think, therefore, that in this case, in view that the negligence was predicated entirely upon the omission to provide the ear with any fender or guard whatever, the court had the right to take judicial notice of the purpose of fenders as applied to street cars. Had the complaint charged negligence in the use of an improper fender, or of one not in general use, then it no doubt would have been necessary to support the allegation with proper pr’oof by showing the kind of fenders in .use generally by those engaged in a simlar business which was managed and conducted with ordinary prudence and care. But the negligence, if any, consisted in not providing any appliance whatever, the purpose of which is well known and recognized, and, this being so, the only proof that was required was to show its absence. If we are right in our conclusions, then it was for the jury to say, from all the facts and circumstances in evidence, together with the inferences to be drawn from them whether or not a fender would have obviated the injuries. Unless the jury so found, the absence of a fender was wholly immaterial. The mere fact that no fender -was provided did not, and could not, have any effect one way or the other, unless the fender would have guarded and protected the deceased against injury. We remark further, that, in view of what we have said with regard to the purposes of fenders, it may well be that the street railway, company can no longer excuse itself for not equipping its cars with fenders at this late date by simply pointing to the fact that others, engaged in similar business, do likewise. There are some things that it may be negligent to do, or omit to do, although all others do or omit to do them. This is well illustrated in the cases of Webster v. Symes, 109 Mich. 1, 66 N. W. 580, and Ilwaco Ry. Co. v. Hedrich, 1 Wash. 446, 25 Pac. 335, 22 Am. St. Rep. 169. We are convinced that appellants were not prejudiced in any of their substantial rights in this regard, and therefore this assignment must be overruled.

It is also claimed that the court erred in instructing the jury with regard to the duties devolving upon deceased in attempting to cross the track. In this regard the court in effect told the jury that the deceased was required to use his senses, and exercise that degree of care that men of Ordinary prudence would have exercised under the particular circumstances of the ease as disclosed by the evidence. It is urged that this was insufficient, because the deceased was shown to have been familiar with the surrbundings and conditions prevailing at the place of the accident, and therefore the usual or ordinary test did not cover the ease. We think otherwise. The court called attention to the particular circumstances of this case, and within these were necessarily included all the circumstances which had any bearing upon the conduct of either party. Moreover, there is no intimation anywhere in the record that any one made any claim that any consideration should be based upon the fact that the deceased did not know the conditions and circumstances surrounding him at the time of the accident, and that he did not know the conditions generally prevailing at that place. We cannot perceive any error in this regard.

Error- is also predicated upon the instruction where the' court referred to the care the deceased was required to exercise in looking for an approaching car. In this instruction the court used the expression of “observing the car” instead of “looking for the car” before attempting to cross the track. It is urged that to merely require one to observe an approaching car is not sufficient; that it does not meet the duty imposed by law, which requires that a pedestrian, before attempting to cross the track, must look to see whether or not a car is approaching. We think the jury clearly understood what the court desired to impress upon them in the instruction. The court repeatedly told the jury that the deceased was required to use all of his senses, and in different instructions told them what the law required of him, and,"' unless they found that he had complied with those requirements, the respondents could not recover. In view of this the appellants-could not have been prejudiced;

Another error assigned is that the court erred in directing the jury that a person, in attempting to cross a street railway track, “has a right to rely upon the assumption that the company and its servants will discharge their legal duty, in approaching crossings, by having their cars under control.” It is urged .that, in view that the accident did not occur at a public crossing, therefore the instruction is not based on the evidence and is contrary to law. The instruction, however; contains simply an abstract statement of the law, as applied to persons and street railroad companies, with regard to crossings generally. It is true that the accident occurred at a point some distance east of the main street crossing. But there was an abundance of evidence which tended to show that a large number of persons habitually crossed the track at and near the place of the accident. This, in effect, widened the extent of Main street crossing, all of which had existed for along time prior to' the accident, and was well known to the street car company and its servants; and hence it became their duty to adapt the movements of the cars to the prevailing conditions and circumstances. As we have already pointed out in this opinion, no part of the public street is withdrawn from use by placing a street railway tack upon it. The street thereby is merely burdened with an additional easement in favor of the street railway company, with the preferential right of passage over it. The public are not merely licensees in using that portion of the street occupied by the street railway track. They are not there by the mere permission of the owner of the street railway; but they are there as a matter of legal right, and may so remain until the street railway .company desires to pass over it with one of its cars. 'The right of passage by the company is a preferential right to which, all others must yield. But, in exercising this right, the company and its servants must have due regard for the safety of those who may be on the street, or on or near the street railway tracks. If, therefore, any considerable number of persons habitually cross the track at a certain point, it is not material that such a point is not at the regularly established crossing, in so far as it affects the care of the street railway company in passing that particular place. The right to the use of the public streets cannot be curtailed in this way. The public must have due regard for the preferential right of passage of the street cars, and must exercise the degree of care commensurate with this right; but the street car company may not say that it will not permit the use of streets except at public-crossings, and that any person who attempts to use or cross them at other places does- so at his peril. Both parties must so adapt their movements and conduct as will conserve the rights of all, and - whether the one or the other has departed from the standard of care required at a public crossing, or on. any other part of the tracks occupying a portion of the street, is, and of necessity must be ordinarily, a question of fact. By what we have said, we do not mean that a street car company must at all points move its ears at the same rate of speed, or exercise the same vigilance, or have its cars under control to the same extent as at public crossings; but what wTe desire to impress is that the company must at all places exercise a degree of care which the existing conditions require, and that pedestrians, or any one using the street with horses and vehicles, must do the same. The court in no way departed from this rule in the instructions; and therefore no error was committed in giving it.

Error is also based upon the refusal of the court to charge the jury as requested by appellants in their request numbered 32. This request is to the effect that it was the duty of the deceased in approaching the track to look for an approaching car, and that, if he had looked, and by looking would have seen the car in time to have avoided the accident, but did not do so, and if the motorman did not have the last clear chance to have avoided the accident by the exercise of reasonable diligence, then the verdict should be for defendants. While this1 charge was not given to’ the jury in the exact language employed by council, we think that the substance of it was covered in several instructions given by the court. Instruction numbered 20 given covers a. portion of it ; and this instruction was in substance the same as requests numbered 8 and 9, asked by appellants. In view of this, the court did not err in refusing the request.

The last assignment to be noticed is directed against an instruction given in relation to the measure of damages. The instruction is a very long one, covering the whole range of matters to be considered by the jury in determining the amount to be allowed the widow and minor children for the loss sustained by them through the death of the husband and father. In the instruction is included in substance the whole of the requests upon the subject offered by appellants. The exception and argument, however, are directed against the concluding part of the instruction, which reads as follows: “You will not consider, in fixing damages, any income from any property that the deceased had, if any, at the time of his death, produced by the property itself alone, independent of his care, skill, and supervision; but you should consider any income from any and all of his property which his skill, personal supervision, diligence, and care have a part in producing.” It is strenuously argued that under this instruction the jury could have considered the profits arising out of deceased’s business, and that profits arising from any business or enterprise cannot be considered in actions of this kind, unless the profits are for past losses, and then they must be specially pleaded if a recovery is sought therefor. While the phraseology of the instruction is not to be approved as a model, nevertheless, for the reasons hereafter stated, it cannot be held that it was prejudicial to the rights of appellants. It may be conceded that it frequently has been held that mere future profits, arising out of a deceased’s business, cannot be considered in a case of this character. But this is so because the element of future profits is too uncertain, besides being speculative and remote. Under our statute, both the wife and the children were heirs of the deceased, and as such were entitled to recover, not only for the loss of support, companionship, and the assistance he would naturally and probably be to them but were entitled to all the pecuniary loss that they may have sustained by reason of his death, which could be established with reasonable certainty in view of all the circumstances pertaining to the subject-matter. The authorities under statutes similar to ours, we think, are clearly to this effect. In Hayes v. Williams, 17. Colo. 465, 30 Pac. 355, the rule or measure of damages is stated thus:

“This rule allows, as compensatory damages, the estimated accumulations of deceased during ‘the probable remainder of his life, if he had not come to an accidental death, having reference to his age, occupation, habits, bodily health, and ability.’ ”

The rule in case of death of a husband and father is stated, in much the same terms, in section 160 of Tiffany on Death by Wrongful Act. See, also, San Antonio & A. P. Ry. Co. v. Long, 87 Tex. 148, 27 S. W. 113, 24 L. R. A. 641, 47 . The instruction strictly limited tbe recovery to such accumulations as would likely be produced by the “skill, personal supervision- and diligence” of the deceased, and all future income from any property the deceased owned, at the time of his death, not produced from the deceased’s personal efforts, was excluded. Future profits, as such, were, therefore, not only not included, but they were expressly excluded, as an element for which a recovery could be had. The respondents in this regard were entitled to receive what they would have received if the deceased had lived. This, so far as the loss could be established with- reasonable certainty, was the measure of damages. If from the evidence it appeared that the deceased’s ability and habits were such as gave reasonable -grounds to believe that he would accumulate property in excess of his expenditures, then his heirs were entitled to the loss so sustained by them. These losses cannot be limited strictly to a fixed sum of earnings for a day, week, or ■month. If absolute certainty were required, very little, if anything, could' be recovereed. Matters of this kind depend on the inherent probabilities, and these were all in evidence on the part of appellants, as well as on the part of respondents; and in view of the evidence on this subject we are fully persuaded that no prejudicial error was committed, either in •admitting the evidence upon the subject, or in giving, the instruction complained of.

In concluding this opinion, we remark that this case has been tried three times. At the first trial the jury disagreed, and on the second trial a verdict was returned in favor of respondents, which was set aside by the trial court, and on the third trial the jury again rendered a verdict in favor of respondents, upon which the present judgment was entered. It is only fair to state that the counsel who presented the case to this court did not try it in the court below. We make this statement because the record presents exceptional features which may have arisen, in part at least, out of the theories of counsel trying the case, and which, according to their views, might not present the question in the precise form in which they have- been argued before us. We have read the entire record with, more than ordinary care. There were a large number of eyewitnesses who gave their version of the accident ; every feature of the case was thoroughly covered by the instructions; and in the light of the whole record we are convinced that the case was properly submitted to the jury, and that, if they have committed any error of judgment in weighing and reconciling the evidence, it is one that the law, perhaps wisely, forbids ns to review.

. The judgment therefore should be, and accordingly is, affirmed, with costs to respondents.

MeCABTY, C. J., and LEWIS, District Judge, concur.