Opinion
November Term, 1896.
Clarence C. Ferris, for the appellant.
Henry A. Robinson and Brownson Ker, for the respondent.
There was evidence sufficient to go to the jury that the plaintiff was knocked down by a cable car. He testified that he was upon the cable car track at the time of the accident. He was riding there upon his bicycle, and was utilizing the aperture between the rails which is provided for the cable, commonly called the "slot." "When I got to Nineteenth street," he testifies, "there was a noise, the rumble of a cable car behind, and suddenly I was knocked down." He added that he was familiar with the rumble made by a cable car; that it was a holiday; that the street was quiet at the time; that he did not see or hear any other vehicles, and that he distinctly heard the rumble and noise of a cable car behind him just as he was struck. This, under all the circumstances, was sufficient for the submission to the jury of the question whether the accident was or was not caused by a cable car.
There was also enough to go to the jury upon the main questions. The plaintiff was lawfully upon the track. (Laws of 1890, chap. 568, §§ 162, 163.) It is true it was a place of danger, and the plaintiff was bound to exercise corresponding care. Whether he did so was for the jury to determine. The trial court held him to be guilty of contributory negligence, as matter of law, because he failed to look back. No such duty was imposed upon him as matter of law. His primary duty was to look in front of him, indeed, to keep a good look out all around. But he could not ride upon his bicycle at all — certainly not with safety — and yet keep his head turned so as to observe what was going on behind. Whether his failure to observe the car at the time of, and under the circumstances surrounding the accident, amounted to contributory negligence, was, to say the least, a question for the jury. He certainly had a right to expect the usual warning in his rear. Had that been given he would of course have been bound to protect himself by getting off the track and making way for the approaching car. Here, however, there was no warning. The gong was not sounded. There was no whistle, cry or notice of any kind. The plaintiff was proceeding lawfully and with a justifiable sense of security. The first that he heard was the rumble and noise of the cable car. Immediately thereafter he was struck and knocked down.
The case upon the facts should have been submitted to the jury, and the judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P.J., RUMSEY, O'BRIEN and INGRAHAM, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.