Dabbs v. Rome Railway & Light Co.

Hill, C. J.

(After stating the foregoing facts.)

The above is substantially the evidence for both sides. Assuming that the evidence for the plaintiff is the truth of the transaction, does it present a case for the determination of the jury, and ■not for the decision-of the court as matter of law? We think there can be but one answer to this question. The evidence should have been submitted to the jury. To support this conclusion, it is not necessary to quote all the evidence or to give in detail each allegation of negligence, or the proof pertinent thereto. The ease made by the plaintiff shows a traveler on the highway on which a street-car track was also located, driving two mules to a carriage occupied by a half dozen people. These mules became frightened at the approach of the street-car, 'and as the car approached nearer, they became much more frightened, making apparent not only a possible, but a probable accident. This condition of the mules could have been seen by the motorman for 300 yards. Indeed, the motorman himself testified that he did actually see the team for 200 yards away. He nevertheless made no effort to stop the car or to prevent the impending accident, but ran by the frightened team at a rapid rate of speed, in such close *355 proximity that, according to the testimony of one of the witnesses, the passing car could, be touched by the occupants of the carriage.

Learned counsel for the defendant, in support of his contention that no liability was shown by the evidence for the plaintiff, relies upon the decision of this court in the case of Southern Ry. Co. v. Flynt, 2 Ga. App. 162, 170 ( 58 S. E. 374, 378 ). That decision does not support this contention. In that case this court said (p. 170) : “While we do not think the law imposes upon railroad companies the duty of keeping a lookout or of giving warning to travelers on an'adjacent highway of the approach of trains, yet when danger to such traveler is discovered, it then becomes a duty to use care to avert an injury, such care as the then situation would make it practical and possible for the railroad in the proper conduct of its business to use.” It is true the evidence of the motorman in this case is positive that he discovered no danger to the travelers on the highway from the approach of his car, yet the testimonj'- of the four witnesses in the carriage is positive that the mules were frightened at the approach of the car, — that they were plunging and trying to back the carriage towards the track; and the evidence, of the motorman is that he did see this vehicle for 200 yards on the highway adjacent to the car track. Would not the jury have been authorized to conclude, from this testimony, that he did discover the clanger? If he did discover the danger, then it was his duty, under the decision of this court relied upon by the defendant, to use care to avert the injury, — such care as the then situation made it practical and possible for him to have used. If he could have stopped the car or slackened its speed, it was his duty to have done so. And right here it may be observed that there is a vast difference between a train of cars propelled by a locomotive on a track and one car under the control of a motorman. In one case it would be difficult to stop the train to avert an injury. In the other case it might not be difficult to stop the car to avert an impending danger or accident. In the case of Perry v. Macon St. R. Co., 101 Ga. 410 ( 29 S. E. 308 ), the Supreme Court says: “It is undoubtedly the duty of the motorman, in propelling a car through the public streets, to notice the presence of other vehicles and pedestrians ahead of his car, and at all times be watchful to see that the way is clear; and where *356 he has reason to apprehend danger, or should in the exercise of ordinary care become cognizant of danger, he should regulate the speed of his car so that it may be quickly stopped, should occasion require it.” See also, in this connection, Brunswick & Birmingham R. Co. v. Hoodenpyle, 129 Ga. 174 ( 58 S. E. 705 ); Electric Ry. Co. v. O’Connor, 99 Ga. 62 ( 24 S. E. 405 ); Metropolitan Street R. Co. v. Powell, 89 Ga. 602 ( 16 S. E. 118 ). In the case of Cleveland v. Street R. Co. (Kentucky Court of Appeals), 11 L. R. A. (N. S.) 853, cited by learned counsel for the plaintiff in their most excellent brief, the facts are very similar to those in the case now under consideration; and in that case the court held that “the motorman in charge of an electric car, who observes a lady.seated in a buggy near the track, with the actions of the horse such as to lead a person with ordinary prudence to believe that there is danger that the vehicle will be backed upon the track, is bound to bring the ear under such control that it can be stopped entirely if necessary to prevent a collision.” In the Kentucky case it was contended that there was no negligence on the part of the -electric company, because the plaintiff did not get on the track until too late for 'the ear to stop; and counsel for the defendant in the present case make the same contention. . A portion of the decision of the learned judge of the Kentucky Court of Appeals is so pertinent, and in our opinion expresses so clearly the law applicable to the facts of that case, as well as to the facts of this case, that we think it appropriate to quote it. “It is insisted that the court should have instructed the jury that appellee was not entitled to recover damages resulting from the collision, unless they should find that at the time the motorman first saw,'or, by the exercise of reasonable care, should have seen, that the buggy was about to be backed on the track, he could have stopped his ear in time to prevent the collision.' Under this view of the case, although the motorman may have seen the horse rearing and prancing and lunging backwards and forwards, he was under no obligation to slacken the speed of his car, or anticipate that the vehicle might be backed on' the track. This does not express the measure of duty exacted from motórmen in charge of electric cars. They can. not wait until the danger of collision is imminent, or the person or vehicle is put in actual peril, before exercising ordinary care to prevent an *357 accident. It is true that the street-car service is for the benefit of the public and can not fulfill its legitimate purpose unless it is operated with some degree of celerity. Nor is it necessary that a car should be slowed up every time a horse or team betrays signs of uneasiness. But in weighing the duties of a motorman in cases of this character, it is necessary to consider the circumstances and conditions that present themselves calling for the exercise of reasonable care and good judgment upon his part. Here a lady was seated in an open buggy standing by the side of the track, in plain view of the approaching car. The motorman, if keeping a reasonable lookout, could have seen from the actions of the horse that he was liable at any moment to become uncontrollable and place the occupant of the buggy in peril of her life by backing the buggy in such a position that it would come in contact with the car, and the actions and movements of the horse were such as would lead a person of ordinary prudence to believe that there was danger of the vehicle being backed upon the track. It was therefore the duty of the motorman, observing this condition of affairs, to have slackened the speed of his car or have stopped it entirely, if necessary, in order to prevent a collision that should have been anticipated. Thus, a motorman who sees a child walking on or near the street-car track would be held to a higher degree of care than if an adult were in the same position, 'and might reasonably expect that there would be more danger of collision when a vehicle was being driven by a lady, and the horse was restless and excitable, than there would be if a teamster was driving a wagon by the side of the track.” And the court further on says that the high speed of the car and the failure of the motorman to take any action to lessen it until it was too late to prevent the collision, although he saw, or could have seen, the peril in which appellee was placed in time to have cheeked his car or stopped it, thereby avoiding the injury, manifested such a reckless disregard of .the right of appellee as to warrant the infliction of exemplary damages. 'We can not doubt that the principle of law announced in the ease from which the above quotation is taken is sound, and its applicability to the facts -of this ease is apparent. If the testimony of the plaintiff was the truth of the transaction, it was cle'arly the duty of the motorman, when he saw that the mules near the track were frightened and that the carriage was *358 filled with occupants, most of them women, to have checked his car in time to have prevented the accident.' If the mules were in such a condition of fright as described by the driver and the other occupants of the vehicle, and if the motorman could, bjr the exercise of ordinary care, have seen this condition of fright and the impending danger of an accident, and if he could, by the exercise of reasonable care, have prevented it, it was plainly his duty to do so. These were all questions peculiarly' for solution by the pry.

Counsel for the defendant insists that in order to recover from the railway company for a horse becoming frightened at the noise of a running train, it must appear that’ the noise was unusual and unnecessary. Of course this is unquestionably true, but this principle is not controlling as to the facts of this case, for here the main ground of negligence alleged and relied upon is not the noise produced by the running of the car, or the fright of the team by the speed of the ear, or the headlight of the car, but the gist of the charge of negligence is that the motorman saw the frightened condition of the team, or by ordinary care could have seen it and the probability of a collision in ample time to have taken some precaution to prevent it, but that he nevertheless made no effort at all to prevent the accident which was imminent, and carelessly continued to approach at a rapid rate of speed. All the other allegations of negligence which were proved by the testimony in behalf of the plaintiff were incidental, and gave emphasis to this main allegation of negligence on the part of the motorman as proved by the evidence* for the plaintiff.

It is contended also by the defendant that the testimony in behalf of the defendant, that the deceased jumped out of the carriage on to the track, which was not disputed, showed such contributory negligence on her part as to prevent her father from 'recovering.' It has been frequently decided by the Supreme Court of this State, and can not ‘reasonably be denied, that if one, by his negligent or wrongful act, causes an emergency wherein another apprehends a danger from the consequences of such negligent or wrongful act, and does an act to avoid the consequences,— such as jumping from a running car to avoid an impending collision, and acts of like character,- — this does not constitute contributory negligence which can be set up by the party whose con *359 duct caused the emergency. If the decedent saw that the mules were frightened by the approaching car, that the motorman in charge of the car made no effort to stop it, and that there was danger of a collision by the backing of the carriage on the track in front of the rapidly approaching car, and, in her effort to avoid the consequences of the motorman’s negligence, she endeavored to get out of the carriage and stumbled on to the track in some unaccountable manner, this was not an act of which the defendant can take any advantage. Southwestern R. Co. v. Paulk, 24 Ga. 356 ; Macon & Western R. Co. v. Winn, 26 Ga. 250 ; Macon & Western R. Co. v. Johnson Co., 38 Ga. 409 ; Smith v. R. Co., 83 Ga. 671 ( 10 S. E. 361 ); Richmond & Danville R. Co. v. Dickey, 90 Ga. 491 ( 16 S. E. 212 ); Simmons v. R. Co., 92 Ga. 658 ( 18 S. E. 999 ); A. K. & N. Ry. Co. v. Roberts, 116 Ga. 505 ( 42 S. E. 753 ). And in the case of Central R. Co. v. Sears, 59 Ga. 437 , it is held that this would be true although in fact such emergency did not actually exist, if it was believed in good faith that it did exist. But whether the emergency existed, or whether the decedent believed that it did exist when in fact it did not exist, are questions for the determination of the jury. Central R. Co. v. Sears, supra; Roach v. R. Co., 64 Ga. 635 . The contention of the learned counsel for the defendant that the death of the plaintiff’s daughter was solely attributable to her own gross negligence in jumping out of the carriage, and that in fact the evidence indicated a suicidal intent on her part, necessarily presents questions for the determination of the jury. Considering the case as a whole, we think the conclusion is irresistible that the court erred in deciding, as a matter of law, that under no fair and reasonable inference from all the evidence could the jury have found a verdict in behalf of the plaintiff, and in directing a verdict for the defendant.

It follows, from what we have said in discussing the questions raised by the main bill of exceptions, that the judgment on the cross-bill of exceptions must be affirmed, and that on the main bill of exceptions reversed.