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time of the collision the car was being oper- | Street railway driving in front of car ated in violation of an ordinance giving mail liability for injury. wagons the right of way may be shown as 7. Notwithstanding an ordinance giving tending to establish negligence.

wagons carrying United States mail a right Trial - instruction duty of street car

of way over street cars on the public streets, driver.

the one in charge of such wagon, who, 4. A requested instruction in an action while looking at an approaching car, drives by a mail carrier injured by collision with in front of it, cannot hold the railroad coma street car that the city ordinance gave pany liable for the resulting injury unless the mail wagon the right of way, and that the motorman was negligent in failing to

use due care in endeavoring to stop the car plaintiff, as the driver of the wagon, had the right to assume that the motorman,

after discovering his peril. he discovered, or, by the exercise of ordinary Same knowingly driving in front of care, could have discovered, the approach of approaching car – negligence of mothe wagon, would accord the right of way torman - effect. to the wagon, is argumentative and cal- 8. One who negligently drives onto a culated to mislead the jury.

street car track in front of an approaching Same - care by motorman lookout.

car cannot hold the railroad company liable 5. An instruction in an action to recover

for injuries due to the resulting collision, damages for injury by collision with a street although the motorman was negligent in car, that the verdict should be for defendant failing to keep a proper lookout, unless if the motorman used ordinary care in the the motorman might, by the exercise of management of the car at and near the place proper care, have avoided the collision after of the injury, includes a requirement of discovering his peril. constant lookout for persons on the track. Appeal - order of introducing evidence Same conflict ability to harmonize. discretion. 6. Instructions should not be considered


9. It is not such an abuse of discretion on as in conllict if they can be harmonized. the part of the trial court to refuse to admit action for violation of statute not expressly, the neglect to discharge which gives any conferring it, see note to Wolf v. Smith, 9 person injured thereby a right of action L.R.A. (N.S.) 338.

against persons violating its provisions. Generally as to the rules of the road But if the duty enjoined is one due to the governing vehicles proceeding in opposite public at large only, no right of action acdirections, see note to Smith v. Barnard, crues to an individual from a failure to dis41 L.R.A.(N.S.) 322.

charge such duty. See notes in 5 L.R.A. As to rules of the road governing vehicles (N.S.) 186; 9 L.R.A. (N.S.) 338; and 47 proceeding in the same direction, see note L.R.A.(N.S.) 820. to Hackett v. Alamito Sanitary Dairy Co. In numerous cases it is held that a vio41 L.R.A. ( N.S.) 337.

lation of an ordinance or statute is negliAs to rules of the road governing vehicles gence per se. In other cases it is held at intersection of streets and when turning that a violation of an ordinance or statute across street, see note to Molin v. Wark, 41 is only evidence of negligence to be conL.R.A. (N.S.) 346.

sidered by the jury, as is held in BAIN v. Fr. As to rule of the road as affecting street SMITH LIGHT & TRACTION Co. It should be cars and vehicles meeting or passing, see observed, however, that the cases quite note to Foster v. Curtis, 42 L.R.A. (N.S.) generally hold that the violation of a statute 1188.

or ordinance must be the proximate cause of The cases passing upon the effect of a the injury in order that it may be available violation of an ordinance giving fire ap- in an action for the injury complained of. paratus going to a fire a superior right of A municipal ordinance giving ambulances way with reference to liability for collision the right of way over all other vehicles is with a street car are presented in the note admissible in evidence, in an action by an to Dole v. New Orleans R. & Light Co. 19 ambulance surgeon for personal injuries L.R.A.(N.S.) 626.

sustained by collision with a street car in a While the cases in the present note hold city street, as the violation of the ordinance that the violation of a statute or ordinance is some evidence of the street railway comgiving a vehicle a superior right of way pany's negligence. Buys v. Third Ave. R. over another vehicle may be shown in evi- Co. 45 App. Div. 11, 61 N. Y. Supp. 113. dence, in an action for injury, as a circum- Under a statute (chap. 186, New York stance for the consideration of the jury Laws 1879) giving an ambulance the right from which negligence may be inferred in of way as against an ice wagon, the driver of determining whether the parties were or the ambulance has the right to assume that were not guilty of negligence, attention is the driver of the ice wagon will pay proper called to the fact that there is considerable heed to the ringing of the ambulance bell conflict among the cases as to what extent and the driver's shouting. Byrne v. Knicka violation of a statute or ordinance may erbocker Ice Co. 24 Jones & S. 337, 4 N. Y. affect liability for injury. Thus it has been Supp. 531, affirmed without opinion in 121 held that a violation of a statute or ordi. N. Y. 700, 24 N. E. 1100. nance which is clearly for the benefit and A municipal ordinance which gives the protection of persons imposes a legal duty, right of way at street intersections to veevidence in rebuttal which, under the plead-, his horse started across the street, as he was ings, is part of plaintiff's case in chief, for in the habit of doing, to the mail box on the the nonintroduction of which in proper ord opposite side. Appellant jumped into the cart er no adequate excuse is offered so as to when same was 10 or 12 feet from the curb, require a reversal.

and about the middle of the street between (January 4, 1915.)

the curb and the first car track. At this

time the street car was at or crossing Fifth A

PPEAL by plaintiff from a judgment of street, about 75 feet away. Appellant did

the Circuit Court for Sebastian County not know the speed the car was going. It in defendant's favor in an action brought to increased its speed after crossing Fifth recover damages for personal injuries al street, but appellant thought the motorman leged to have been caused by the negligence would check the speed and control the car of defendant's servant. Affirmed.

so as not to run over him. This the motor

man could have done had he applied the Statement by Wood, J.:

brakes in time, but the motorman did not The appellant was a United States mail | check up the speed of the car until he was collector, and under an ordinance of the city within 10 or 12 feet of appellant's cart, of Ft. Smith, in case of conflict, had the when he made a hurried effort to do so. preferential right of way over the appellee Appellant's wagon nearly cleared the track, in the use of the streets. While in the dis- but the hind wheel was struck by the car, charge of his duties, he drove his cart to the causing appellant's horse and cart to be mail box at Manhattan Café on Garrison dragged against the first trolley post east of avenue, stopped the cart about 4 feet from the point of contact, which was more than the box, which was at the curb, gathered the 50 feet from where appellee's car struck the mail from the box, and as he locked the box Icart of appellant. Appellant was thrown hicles moving north and south over those , injuries caused by a collision with a street going east and west is admissible in evidence cai that a city ordinance which gave the in an action for damages caused by a col- street car a superior right of way was adlision at a crossing. H. E. Taylor & Co. v. missible as bearing upon the degree of cauMetropolitan Street R. Co. 84 N. Y. Supp. tion imposed upon the motorman under the 282. The exclusion of this evidence when circumstances. offered by the defendant for the purpose

In Connor v. Electric Traction Co. 173 of showing contributory negligence on the Pa. 602, 34 Atl. 238, it was held that the part of the plaintiff was held to constitute disobedience of a municipal ordinance regureversible error in the above case. The court lating the movements of vehicles, and give said: “Disregard of the duly established ing a right of way to those moving in cerrule of the road would not necessarily con- tain directions at street intersections, is stitute contributory negligence in the driver, not necessarily negligence, but only evidence but, if found, it would be a circumstance of negligence. within the consideration of the jurors, as Although not strictly within the scope of every man proceeding lawfully may right the present note, attention is here called fully assume that others will contirm their to Foulke v. Wilmington City R. Co. 5 conduct to the requirements of statute, and Penn. (Del.) 363, 60 Atl. 973, where it was regulations having the force of statute." held, in an action to recover damages for

So, in Elbing Brewing Co. v. Linch, 80 injuries sustained by a collision with a Misc. 517, 141 N. Y. Supp. 480, it was said, street car at a street crossing, that the uniin holding such an ordinance admissible in form usage or practice of the street car evidence in an action for injuries caused company to stop its cars at crossings to by a collision at a street crossing, that "the permit funeral processions to pass without question of right of way had an important interruption, known to the driver of the bearing, not alone upon the question of injured team, and relied upon by him while defendant's negligence, but upon the freedom going to a funeral at the time of the acciof the plaintiff's chauffeur from contributory dent, may be taken into consideration by negligence."

the jury in estimating the degree of diliIn McCarragher v. Proal, 114 App. Div. gence required by the driver in looking 470, 100 N. Y. Supp. 208, it was held that out for an approaching car before attempting when a municipal ordinance gives the to cross the railroad track, as he might right of way at street intersections to ve. reasonably presume or infer the continuance hicles moving north and south over those of that usage; but that the failure to obgoing east and west, it is the duty of those serve such usage would not amount to ney. moving in either of the latter directions and ligence on the part of the street car commeeting those moving at right angles, to pany, and such usage would not relieve the wait until the latter have passed; and a driver of reasonable care in making the failure to do so, when a collision happens, crossing. To the same effec is White vi evidence of negligence for the jury.

Wilmington City R. Co. 6 Penn. (Del.) 105, In Quinn v. New York City R. Co. 94 N. 63 Atl. 931, which was an action growing Y. Supp. 560, it was held in an action for out of the same accident. A. L. R.

against an iron rod around the top of the which was pushed up to within 2 feet of cart, and in this way he alleges that he re- the trolley post, but stepped out of the same ceived the injuries of which he complained. and gathered up his mail, complained only The distance from the west side of Fifth of having his hand slightly hurt, went street, where the car first stopped or slowed away, and afterwards during the day was up, was 93 feet from a point opposite the seen gathering up the mail on his route. Manhattan box; the cart being struck a few The testimony on behalf of the appellant feet west of that point. The appellant's tended to show that the injuries of which official and usual route in collecting the he complained at the time of the trial were mail was to go from the Manhattan box to produced by the collision, while the testithe box on the corner of Fifth and Garrison mony on behalf of the appellee tended to avenue on the opposite side. That this was show that the injuries and suffering of appellant's usual and official route was which he complained at the time of the trial known to the motorman, From the curb to were from other causes, and that appellant, the first rail of the track was a little over by reason of the collision, only received a 35 feet. The track was about 5 feet wide, slight injury to his hand. The above were and the horse and cart were about 15 feet the issues and substantially the facts adlong. There was nothing to obstruct the duced in evidence on behalf of the respecview of the motorman, and he could have tive parties, and upon which the case was seen the appellant collecting mail at the sent to the jury, whose verdict was in favor Manhattan box and could have seen appel- of the appellee, and from the judgment renlant's cart in starting from the Manhattan dered in appellee's favor this appeal has box to the box on the opposite side of the been duly prosecuted. Appellant complains street. The appellant sued the appellee for of the rulings of the court in granting and damages, alleging that its motorman was refusing prayers for instructions and upon running the car at a dangerous and high the admission and rejection of testimony. rate of speed; that the motorman did not | We will discuss the grounds urged for resound any bell or alarm; that he could have versal in the opinion. seen appellant by exercising ordinary care; that he ran upon appellant without warn- Mr. Ira D. Oglesby for appellant. ing, and by reason of these acts of negli. Messrs. Hill, Brizzolara, & Fitzhugh, gence appellant was run down and seriously for appellee: injured. The appellee denied the allegations The ordinance giving United States mail of negligence and set up that the appellant wagons the right of way created no liability was driving his cart in violation of the city upon the part of the company, nor did it ordinances, and that the collision was give the plaintiff a cause of action. caused solely through the negligence of the 1 Nellis, Street Railways, p. 493; Heeney appellant.

v. Sprague, 11 R. I. 456, 23 Am. Rep. 507; The testimony on behalf of appellant Birmingham R. & Electric Co. v. Baker, 126 tended to establish the facts as above stated. Ala. 135, 28 So. 87; Louisiana & N. R. Co. The testimony on behalf of the appellee v. Dalton, 102 Ky. 290, 43 S. W. 432. tended to show that appellant caught up If the words in the instruction, "carefully with and jumped into his mail cart when manage the car," did not include keeping a same was on appellee's car track, directly lookout for parties approaching the track, in front of the street car; that the motor- then it was the duty of the plaintiff to make man, when the horse's neck was about specific objection to these words and point across the first rail of the car track, applied out to the court the defect therein. the brakes and reversed the current to stop St. Louis, I. M. & S. R. Co. v. Carter, 93 the car, at which time the same was 30 or Ark. 589, 126 S. W. 99; Missouri & N. A. R. 35 feet away, going at a speed of 4 or 5 Co. v. Duncan, 104 Ark. 409, 148 S. W. 647; miles an hour, the current having been shut Pettus v. Kerr, 87 Ark. 396, 112 S. W. 886. off, and the car was being carried by its own It was the duty of the plaintiff to look momentum; that the car stopped within 2 and listen before going on the street car feet of where it hit appellant's cart; that track. the motorman attempted to stop the car as Little Rock R. & Electric Co. v. Sledge, soon as he discovered appellant's dangerous 108 Ark. 95, 158 S. W. 1096; Joyce, Electric position, but was unable to stop it in time Law, $ 650. to prevent the collision. The car

If the plaintiff was guilty of contributory light single truck car, with one passenger. negligence, the motorman was only required The motorman applied the brakes as soon to exercise ordinary care after discovering as the neck of the horse crossed the first plaintiff's peril. rail, sounded the bell, and made a good stop. Barry v. Kansas City Ft. S. & M. R. Co. Appellant was not thrown out of the cart, '77 Ark. 401, 91 S. W. 748; Johnson v. Stew. art, 62 Ark. 164, 34 S. W. 889; St. Louis | thorize the construction of street railways Southwestern R. Co. v. Bryant, 81 Ark. 368, (Kirby's Dig. $ 5443), and in the ordinance 99 S. W. 693.

was a

granting the charter to the appellee the city

could undoubtedly have reserved to itself Wood, J., delivered the opinion of the the right as a condition or consideration for court:

the granting of the franchise,--the power to 1. The appellant asked the court to tell pass ordinances for the protection of perthe jury, in his prayer No. 4, that the city sons and property of individuals, and ordinance gave United States mail wagons creating a liability in their favor against when in use colleoting mail the right of the company for a violation of such ordiway, and that the appellant, as the driver nances; and the company, if it accepted the of such wagon, had the right to assume that franchise with these provisions, would be appellee's motorman, if he discovered, or, bound thereby and liable in damages to inby the exercise of ordinary care, would have dividuals for a violation of such ordinances. discovered, the approach of the mail wagon, It is not shown that the city of Ft. Smith would accord it and the driver the right of reserved to itself such power as a considerway. The court refused this prayer, but in ation for the grant of its franchise to the structed the jury as follows: "The motor- appellee, or that the company accepted the man and the driver of the mail wagon are franchise with such power reserved as a conpresumed to have been familiar with the sideration therefor. The violation of the ordinance giving the United States mail ordinance, therefore, could not become the wagons the right of way, and their conduct basis of the liability for personal injuries. must be judged in the light of this provi- See Byington v. St. Louis R. Co. 147 Mo. sion."

673, 49 S. W. 876. And further, at appellant's request, We have no statute creating a liability prayer No. 10: “The jury, in determining against street railway companies in favor of whether defendant was guilty of negligence parties injured for breaches of ordinances and whether plaintiff was guilty of contribu- passed for the protection of persons or proptory negligence, may take into consideration erty, and there is no statute conferring upon the ordinance introduced in evidence so far municipal corporations the power to pass as same affects the rights of plaintiff and de- such ordinances, as was the case in Hayes fendant.”

v. Michigan C. R. Co. 111 U. S. 228, 28 L. ed. The court further instructed the jury on 410, 4 Sup. Ct. Rep. 369. Therefore no its own motion No. A as follows: "The power existed in the city to create a liabilordinance of the city of Ft. Smith intro- ity in favor of appellant against appellee duced in evidence does not create any lia- for a violation of the ordinance under rebility against the defendant and is only to view, and, if the ordinance had created such be considered by the jury in passing upon liability, it would have been void for lack the question as to whether there was negli- of power to enact it. gence upon the part of either the plaintiff A city, under its general police power or defendant."

over the streets, could pass any reasonable Did the court err? It is not within any and proper regulations prescribing the manof the general or special powers conferred ner in which the franchise of street railupon municipal corporations in this state ways should be enjoyed, not inconsistent or to create a right of action between third in conflict with their charter rights. 36 persons, nor to enlarge the common-law or Cyc. 1447, and note. statutory liability of citizens among them- As we construe the ordinance, it does not selves. This could only be done by contract undertake to create a liability in favor of between the municipality and the company United States mail collectors against the sought to be charged with the violation of appellee for a violation of its terms. It is an ordinance alleged to be for the benefit of only a police regulation, to be enforced a citizen. Kirby's Dig. chap. 115; Holwer- solely by fine, and was designed primarily son v. St. Louis & Suburban R. Co. 157 Mo. for the benefit of the general public, to in216, 50 L.R.A. 850, 57 S. W. 770. Such sure the t'nited States mail free course. power is not implied from any of the pow. True, it operates incidentally to protect the ers expressly conferred. A municipal cor- mail carts and the persons of mail collectors poration has no powers except those ex. while engaged in their duties, but it was pressly conferred and those fairly implied not enacted for their special personal benefor the attainment of declared purposes. fit in the sense of creating a right of action Morrilton Waterworks Improv. Dist. v. in their favor against the street railway Earl, 71 Ark. 4, 69 S. W. 577, 71 S. W. 666. company for a violation of the ordinance. See also Winchester v. Redmond, 93 Va. 711, What effect, then, should be given the 57 Am. St. Rep. 822, 25 S. E. 1001.

ordinance in this case ? The city had the express power to au- In common-law actions for negligent injuries, where, at the time of the injury, a | Grand Trunk R. Co. v. Ives, 144 U. S. 408, city ordinance is being violated, in some 418, 36 L. ed. 485, 489, 12 Sup. Ct. Rep. jurisdictions it is held that violation of the 679, 683, 12 Am. Neg. Cas. 659, said: “But city ordinance is not evidence of negligence, perhaps the better and more generally acand that the ordinance is not admissible in cepted rule is that such an act on the part evidence. See Rockford City R. Co. v. of the railroad company is always to be conBlake, 173 Ill. 354, 64 Am. St. Rep. 122, 50 sidered by the jury as at least a circumN. E. 1070. See also Ford v. Paducah City stance from which negligence may be inR. Co. 124 Ky. 488, 8 L.R.A. (N.S.) 1093, ferred in determining whether the company 124 Am. St. Rep. 412, 99 S. W. 355. In was or was not guilty of negligence"-citing other jurisdictions it is held that the oper. cases. ation of cars in violation of a city ordinance Now the court, in permitting the ordiis negligence per se. Ashley v. Kanawha nance to be introduced, and in its instrucValley Traction Co. 60 W. Va. 306, 55 tions based thereon, conformed its rulings S. E. 1016, 9 Ann. Cas. 836; Moore to the law as above announced and apv. St. Louis Transit Co. 194 Mo. 1, 92 S. W. proved. 390; Memphis Street R. Co. v. Haynes, 112 The prayer for instruction No. 4 was arTenn. 712, 81 S. W. 374; Dallas Consol. gumentative and calculated to mislead the Electric Street R. Co. v. Ison, 37 Tex. Civ. jury. App. 219, 83 S. W. 408. But in other juris- In modifying and giving as modified, apdictions it is held that, in a common-law pellant's prayer No. 5, and in giving appelaction against street railway companies for lant's prayer No. 10 as requested, and in injury alleged to have been caused by the giving instruction No. A on its own motion, company's negligence, if, at the time of the the court declared the law strictly in accord injury, the street car producing it was being, with the rule as above approved, and its operated in a manner that violated an ordi- rulings gave to the appellant the utmost to nance of the city, such fact may be shown which he was entitled. as tending to establish the allegations of II. Instruction No. 5, given at the instance negligence. The rule as last stated is sup- of appellee, was as follows: “The court inported by the weight of authority and the structs you that if you believe from the better reason. Without stating the rule or evidence that defendant's motorman in citing any authority to support it, we recog. charge of its car used ordinary care in the nized and approved it in the recent case of management of said car at and near the Little Rock R. & Electric Co. v. Sledge, 108 place where plaintiff was injured, and that, Ark. 95–110, 158 S. W. 1096. Other authori. as soon as he saw plaintiff in a position of ties are as follows: Davis v. Durham Trac- danger, said motorman used such care and tion Co. 141 N. C. 134, 53 S. E. 617; Hen- caution in stopping said car as to avoid inderson v. Durham Traction Co. 132 N. c. i jury to plaintiff as a person of ordinary 779, 44 S. E. 598; Meek v. Pennsylvania Co. care and prudence would have exercised 38 Ohio St. 632. See also Cumming v. under such circumstances, then your verdict Brooklyn City R. Co. 104 N. Y. 669, 674, 10 must be for the defendant." N. E. 858; Connor v. Electric Traction Co. Appellant contends that this instruction 173 Pa. 602, 34 Atl. 238; Baltimore City was erroneous because it only required the Pass. R. Co. v. McDonnell, 43 Md. 534; Har- motorman to use ordinary care after he saw rison v. Sutter Street R. Co. 116 Cal. 165, plaintiff in a place of danger. The instruc47 Pac. 1019, 1 Am. Neg. Rep. 403; Mahan tion, taken as a whole, is not open to this v. L'nion Depot Street R. & Transfer Co. 34 objection. The instruction required the Minn. 29, 24 N. W. 293; Ilanlon v. South jury to find that the motorman used ordiBoston Horse R. Co. 129 Mass. 310. See nary care in the management of his car at also Caswell v. Boston Elev. R. Co. 190 and near the place of the injury. Ordinary Mass. 527, 77 N. E. 380; Glassey v. Worces care in the management of a street railway ter Consol. Street R. Co. 185 Mass. 315, 70 car requires a constant lookout to be kept N. E. 199, 16 Am. Neg. Rep. 86; Stevens v. for persons upon the track. This is a wellBoston Elev. R. ('o. 184 Mass. 476, 69 N. E. recognized duty of motormen under the law 338, 15 Am. Neg. Rep. 338; Norfolk R. & pertaining to the management of street railLight C'o. v. Corletto, 100 Va. 355, 41 S. E. ways and the instruction as offered, and the 740; and note to Ashley v. Kanawha Valley language used in the instruction, when Traction Co. 9 Ann. Cas. 840-842, where the fairly construed, must have conveyed the above cases are collated.

idea to the jury that such was the duty oi In a case where, at the time of the injury, the motorman. But if there was any doubt a railroad train was being run at a greater about it, the jury could not have been misrate of speed than that preseribed by a city led, for in prayer No. 13, given at appelordinance, Mr. Justice Lamar, speaking for lant's request, the court told the jury that the Supreme Court of the United States, in l it was the duty of the motorman to keep a

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