Woods v. Public Service Co.

The opinion of the court was delivered by Bergen, J.

The motion for a nonsuit should have been allowed and its refusal requires a reversal of this judgment. We think it must be admitted that if a person, in the usual course of business or pleasure, was driving this team of horses at the speed, and in the manner, plaintiff admits he was driv *173 ing when the collision occurred, a nonsuit should have been granted. So the only question presented is does the fact that the plaintiff was driving a lire engine, and entitled to such a light of way against all other conveyances, as is described in the ordinance of the city, absolve him from the legal effect resulting from contributing by his negligence to the accident. We are o£ the opinion that the ordinance does not have this effect. The plaintiff knew that there was a line of trolley tracks in Montgomery street along which ears were being run at frequent intervals and he had no right to assume that he could drive his apparatus across that street without the slightest regard to the movement of the trolley cars thereon, but on the contrary he was hound to exercise reasonable care with reference to conditions which he well knew.

The city ordinance does not justify the driver of a fire engine even while on duty, in entirely disregarding the rights of others on the public highway. It is intended, by its terms, to prevent the operators of other vehicles from refusing the right of way to a lire apparatus, on its way to a fire, and declares a refusal thereof by anyone to he a misdemeanor, but it is no authority for the negligent running down by such apparatus of any other vehicle, and when this driver approached a street upon which lie knew he was liable to find a car in his pathway, or so close thereto that it might he impossible to stop it, he should have had his team under such control as to he able to stop, if necessary, to prevent a collision with another vehicle lawfully upon the street.

An ordinance which imposes a liability for the non-observance of its terms does not abrogate the rule of contributory negligence. 33 Cyc. 991. To give full effect to the argument of the plaintiff in this case, he would have been absolved from contributory negligence if, seeing the car in ample time to stop his team, he had nevertheless, relying upon his claim to a right of way, driven directly into the trolley car. Such a doctrine has no support in the law.

The right of way, such as the plaintiff claims in this case as his justification for the speed at which he was driving at the point of the accident, did not excuse him from exercising *174 care and prudence in driving across the trolley tracks of the defendant, and as it is not pretended that he exercised ordinary care in the premises, the ordinance evoked affords him no protection, and as, in the absence of such ordinance he was clearly guilty of contributory negligence, defendant was entiled to the allowance of his motion for a nonsuit.

As the result which we have reached requires a reversal of this judgment, it is not necessary to consider the other questions raised hy the plaintiff in error. The judgment will be reversed and a new trial awarded.