Darke Common Pleas.

ALLREAD, J.

The plaintiff, Benjamin F. Cain, brings this action against the traction company to recover damages for injuries sustained by him in a collision between a hack in which he was riding as a passenger and a car of the traction company. The cause was submitted to the court, a jury being waived.

The collision occurred on Thursday of the fair week, August 29, 1901, at the intersection of Sherman and Sweitzer streets in the city of Greenville.

Cain arrived in the city about one o'clock P. M., and in company with Maud Ingle, took passage for the fair grounds in the hack of one Scott, who was licensed by the city as a public hackman for that week.

Cain and Miss Ingle were the only passengers, and with Scott, the driver, and Roy Marcum, the collector, constituted all on board the hack. The hackman approached the crossing where the collision occurred by way of Sherman street. The tracks of the defendant at this point lay upon Sweitzer street, entering this street by a sharp turn from Pine street and extending southward in a straight line past the Sherman street crossing to the main entrance to the fair grounds. A car making the turn at Pine street is compelled to come almost to a stop to make the turn; from thence south to Sweitzer street for 900 feet there is a declining grade of eight and a half feet; from thence 300 feet to the center of the Sherman street crossing there is an ascending grade of one and a half feet, which continued at the same rate of incline to the entrance to the fair grounds. Sweitzer street had just been laid with fresh gravel to the level of the tracks. A stone culvert was built in the south part of the street intersection; the culvert extended eleven feet east of the east rail and eight feet west of the west rail of the track, so that vehicles making this crossing would be required to cross both the track and the culvert at about the same time and at somewhat of an angle southward down the railway track. This, together with the soft gravel, made the crossing somewhat difficult.

A substantial part of the travel to the fair grounds came on Sweitzer street by way of Sherman. Sweitzer street being narrow, vehicles going to the fair grounds by this route would naturally be expected to cross the track of the railway and take the westerly side of the street.

The railway had just been put into operation for the fair week, and three large interurban cars were being run between the city hall and the fair grounds. There being no sidings, these cars were moved in procession, going and returning.

The collision was with the forward car.

There is considerable conflict in the testimony as to the speed of the car as it approached Sherman street, varying from five to thirty miles per hour. The officers of the road testify that the motor force within the

Cain v. Traction Co.

power circuit was required to move the three large cars in the city, and one of the same size between the fair grounds and Arcanum, and that it was not sufficient to propel all these cars at a speed above eight miles per hour.

It is fair to infer, however, that with a descending grade of about one foot in a hundred, and with a probability that at least one of the succeeding cars was approaching the Pine street turn, and was using but little, if any, electricity, the forward car at the time it reached the foot of the decline had attained a speed of ten or twelve miles per hour, and that it approached Sherman street, at a distance of 200 feet, at that speed.

There was also a conflict as to the giving of signals, but the testimony of a witness that he did hear the signals is more convincing than that of one who did not hear them. It is hardly likely that an experienced motorman would fail to sound his gong where a vehicle was approaching in full view. The motorman in charge of the car swears that he did give the signals, and is supported by several credible witnesses who heard them. I am, therefore, convinced that the gong was sounded as the car approached the crossing.

It may be observed that there were no obstructions to the view within the limits of the streets at this crossing, and the view was, more or less, open across the corner of the lot back for several feet to a building.

As the car approached from the north, the hack came into view, and was observed by the motorman, as he says, a distance of 500 to 600 feet. from the crossing. The hack, when first observed, according to his statement, was about 100 to 150 feet from the center of the crossing. The motorman, as the hack neared the Sweitzer street line, sounded the gong, shut off the electricity, and applied the hand brake so as to steady the car. The driver of the hack continued ahead until the horses had almost, if not quite, reached the railway track, when he apparently heeded the approach of the car, pulled up and turned his team abruptly to the south, as if to avoid the track. At this time the motorman, evidently believing that the hackman would get out of his way, released the brake, but a moment later, seeing his mistake, he attempted to reapply the hand brake, but was not successful in averting the collision. He made no effort to apply the power brake, although the car was equipped with one in good working order.

At a point nearly opposite the south line of Sherman street, the corner of the car struck the front wheel of the hack with considerable force; the off horse was caught and run over by the front trucks, and the car derailed. The body of the hack was more or less injured, but was not overturned; all the occupants escaped without substantial harm, except the plaintiff, who received very serious and substantial injuries.

The coasting of the car up the slight grade, and the application of the hand brake had, at the time of the collision, reduced the speed of the

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car to probably six to eight miles per hour. James Stoltz, who, from his vocation as special policeman of the Pennsylvania Railroad, is better qualified than most other witnesses, to judge the speed of moving trains, stepped from the rear end of this car, about the time it collided with the hack, and he says it was moving at about that speed.

The rate of speed limited in the franchise ordinance is ten miles per hour, and the motormen were instructed to run their cars at half speed. I am of the opinion, under the state of facts, that the motorman was negligent in the rate of speed at which the car was run at that crossing, and in not bringing his car so nearly to a standstill, when he observed the hack near to and approaching the crossing, that the car would be under his control at the crossing.

The right of a street car company to operate its cars, and of the driver of a vehicle at a street crossing, are equal, and it is the duty of the motorman to respect the right of the public, in the concurrent use of the street, especially at a crossing. A clear statement of this duty is found in the opinion of Spear, J., in Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197, 205 [43 N. E. Rep. 207; 32 L. R. A. 276]:

The use of streets for railways is allowed only because it is considered not to be a substantial interference with their free and unobstructed use as highways for passage. So long, therefore, as there is no unreasonable interference with the public right of passage, railways in streets are lawful structures; but if operated upon the theory of exclusive right to their track, they become wrongdoers."

It is also clear that the duty of due care does not rest, alone, upon the motorman of the street car, but is equally incumbent upon the driver of a vehicle approaching a street railway crossing. He, also, must use such care and caution as men of ordinary prudence would use in the same situation. And when the driver of the hack approached the street railway crossing, he was bound to use his senses of seeing and hearing to discover whether a street car was approaching the crossing. He may not rush heedlessly forward in front of a moving car. If he sees a car approaching in near proximity to a crossing, so that it is apparent that he cannot cross in safety ahead of the car, he should stop, or turn aside.

This is consistent with ordinary prudence, and also with the equal right to the use of the streets. The pedestrian ought not to expect the heavily loaded wagon to stop or turn aside to enable him to pass, when he can, without inconvenience, wait or turn aside until the wagon passes. So, as between an ordinary vehicle and a street car, the driver of the former should give reasonable consideration to the difference in character of the two conveyances, in the concurrent use of the street, and where a street car, moving at a usual and proper rate of speed, will reach a street crossing, at about the same time that the vehicle will reach it, common

Cain v. Traction Co.

prudence and a fair consideration to the difference in the two conveyances require the lighter conveyance to give way to the heavier.

The opinion of Spear, J., in Cincinnati St. Ry. Co. v. Snell, supra, is not inconsistent with this view. In order to attain a proper conception of that case, attention must be given to the direct question involved. Snell stepped from a car, upon which he was a passenger, to the rear end of that car, and passed upon the other track, and was struck by a car coming from the opposite direction at a high rate of speed and without signals. The view was obstructed by the receding car. The trial court arrested the case from the jury, upon the ground that Snell was negligent in going upon the track without looking and listening. The question before the Supreme Court was, as to what constitutes negligence as a matter of law, and the decision does not impinge upon the scope of the trier of the facts as to what is ordinary care.

Here the view was unobstructed and the signals were given. The approach of the car could have been easily discovered by the use of the faculty of either seeing or hearing. The hack driver could readily have slowed up or turned down the street on the east side and crossed the track, after the car. But instead of so doing, he carelessly, if not recklessly, drove in front of the car, and by so doing was guilty of contributory negligence.

But is the negligence of the hack driver to be imputed to the plaintiff? In the case of Thorogood v. Bryan, an early English case, it was decided that the negligence of the driver is imputed to the passenger, but the doctrine of that case has been disapproved in a number of cases in this state. New York, C. & St. L. Ry. Co. v. Kistler, 66 Ohio St. 326; Cincinnati St. Ry. Co. v. Wright, 54 Ohio St. 181 [43 N. E. Rep. 688]; St. Clair St. Ry. Co. v. Eadie, 43 Ohio St. 91 [1 N. E. Rep. 519]; Transfer Co. v. Kelly, 36 Ohio St. 86; Cleveland, C. C. & I. Ry. Co. v. Manson, 30 Ohio St. 451; Davis v. Guarnieri, 45 Ohio St. 470 [15 N. E. Rep. 350]; Bellefontaine & Ind. Ry. Co. v. Snyder, 18 Ohio St. 399.

But while the passenger is not, in an ordinary case, chargeable with the negligence of the driver, yet he is not absolved from all care on his part for his own protection.

In Ulric v. Railway Co. 5 Circ. Dec. 111 (10 R. 635), it was held that the court properly charged the jury, that the party injured was required to use due care for her own protection, although at the time of the injury she was riding in a buggy with her husband, as driver.

In the case of Transfer Co. v. Kelley, supra, it was held that the negligence of the driver should not be imputed to a passenger "who was, in fact, without fault himself." In the opinion, McIlvaine, C. J., says, p. 91:

"The imputation (i. e. of negligence) thus contended for, however, is not based upon any alleged fault of the plaintiff below in entering into the contract for carriage with the railroad company; for there is not even

Darke Common Pleas.

a suggestion that the contract was one which a reasonably prudent man would not have made."

In St. Clair St. Ry. Co. v. Eadie, supra, the doctrine is, also, predicated upon the fact that "there was no fault alleged against plaintiff for becoming a passenger."

In Robinson v. Railway Co. 66 N. Y. 11, a case cited with approval in St. Clair St. Ry. Co. v. Eadie, supra, the doctrine was also predicated on the fact that it was not claimed that the driver "was not an able-bodied, competent person to manage the establishment, nor that he was intoxicated, or in any way unfit to have charge of it." To the same effect are the following: Masterson v. Railway Co. 84 N. Y. 247, 252; O'Toole v. Railway Co. 27 Atl. Rep. 737 [158 Pa. St. 99; 22 L. R. A. 606]; Crescent (Tp.) v. Anderson, 8 Atl. Rep. 379 [114 Pa. St. 643]; Howe v. Railway Co. 64 N. W. Rep. 102 [62 Minn. 71; 30 L. R. A. 684].

Elliott, Railroads Sec. 1174, in the text, lays down the law as follows: "If the person riding in the vehicle knows the driver is negligent, and takes no precautions to guard against injury, he cannot recover, for in such case, the negligence is his own, and not simply of the driver." In the case of Howe v. Railway Co. supra, Mitchel, J., on page 79, says:

"If the plaintiff had known that Pomeroy (the driver) was an incompetent driver, or had known or had reason to believe that he was not performing his duty, by looking for approaching trains, and had nevertheless neglected to look for himself, he would undoubtedly have been guilty of negligence."

Instances not differing in principle are found in cases of fellowservants, whose negligence, ordinarily, is not imputed to the master, but if the master employ an incompetent servant and another is injured through his incompetency, the fault is that of the master.

A full citation of authorities on this point is found in 40 L. R. A. 146. It is fairly well established, that Scott, the driver of this hack, was visibly under the influence of intoxicating liquor, to such an extent as to render him a somewhat careless driver.

Bascom, Huffman, Turner, Ratliff, and others, testify to his intoxication, and the circumstances of this collision strongly support this theory. A number of witnesses say that he was not drunk when seen shortly after the collision; but there is a stage short of actual drunkenness which would render him incapable of careful driving.

It is clear to my mind that the intoxication of the driver contributed. to his carelessness in driving upon the track, and also to his carelessness in failing to clear the track when he turned aside, as a sober person could easily have done.

The plaintiff either knew or had reasonable opportunity to know, the condition of Scott at the time he took passage. He also knew that