The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-11-12

street car and whether if a proper
lookout had been kept there was
chance to avoid the accident after the
hoy had fallen near the track In
this view of the matter ii becomes
imrnaterial whether or not it was
through the negligence Of the deceased
or his parents that he was in the posi-
ton where he was struck by the car
IT is contended for the defendant
that the street car company was under
no duty to the deceased to keep a
lookout for him as he was not making
a lawful use of the street at the time.
An unlawful use of the highway, how
ever, would not preclude the plaintiff
from recovery if due care on the part
of the defendant might still have pre-
vented the injury. Davies V. Mann, 10
NJ. & W. SAG. An analogy is sought TO
be drawn between the deceased in this
case and a trespasser on the track OF
a steam railroad, in which case the
railroad company is ordinarily held to
the duty to use reasonable care after
the trespasser has been seen but to
no obligation to keep lookout Tor
him. The underlying reason for TINS
rule, however, is that the situation is
such that the company has no reason
to expect any person to be on IT'S
right of way at that particular point.
Tut V. Illinois Central Ry. Co, 104
Fed. 49, Frye V. ST. Louis, etc., Ry.,
200 Mo. ST.; L. r. A. On. So 1863.
By it's own terms it would not be ap-
plicable to an electric car on city
street, and the cases most relied upon
by the defendant are careful to era-
phasize this difference.
1.-The duty of the driver of an electric
car passing along a span ;ely settled
I country road in the space between IN
| tersecting roads is not to be judged by
! the same rules with regard to speed
which apply to the same car passing
along the crowded street of a city.
The care to be exercised is relative
and must be proportional to the dan
ger reasonably to be apprehended at
the time and place. Steik V. McNulta,
40 c. C. A. 357; 80 Fed. 1884, Vizac-
chero V. Rhode Island Co., IS R. 1.
| 1872; SO L. r. A. 217.
In this case the defendant was using
a city street near one of its own
transfer points, where the presence OF
| pedestrians and other persons lawful
w on the street was to be anticipated,
and we cannot concede as rule OF
law that no lookout should be kept
We have already held that the grant
of a right of way Or. L. Sec. $40 does
not lessen defendants duty to exercise
due and proper care to avoid causing
injury to other persons. Fuller V.
Rapid Transit Co., 16 Haw. l. 1t has
been urged that streets are not made
to lie down in and that the degree of
/ care which would enable a motorman
to observe a pedestrian would not en-
able him to discover the unexpected
presence of a PROSTATE body near the
track. The same argument was used
lin a Missouri case where the man
killed had fallen into conduit in
tunnel, where his presence was Tar
less likely to be anticipated than here,
but the court held that negligence was
still a question for the jury. Fearons
V. Kansas City Ry. Co, $50 Mo. 20S.
The general principle remains that the
law at all times requires such care as
men of ordinary prudence would use
under similar circumstances, and the
amount of care which prudent men
would exercise under the circumstan-
ces of this case is just as much a
question for the jury as the further
and ultimate question whether the de-
1
of care. 1t cannot be denied that
courts are prone, either by expressions
of opinion or by the acceptance of sue
cessive verdicts of juries, to fix stand
ards of prudence in particular cases
which crystalline into rules Of law,
but until the standard reaches the
point where reasonable men might not
differ about it, this is an invasion of
the proper function of the jury. Metro
politan Ry. Co. V. Wright, II APP. Cas-.
152. We are disposed to lay down as
few arbitrary rules of conduct as pos
sible The application of the law to
the particular circumstances of each
case may be covered by the charge to
the Jury, and no exceptions to the Civ
ing or refusal of instructions having
been brought before us we must as
sumo that the ground was fully and
fairly covered by the trial judge.
1t is also contended that the adj
. mitted fact that the motorman did not
see deceased at all was due to the
fact that he was engaged in the par
amount duty of glancing behind hin
to look after the safety of the passen-
ger who proposed to alight at Ar
tesian street. We know of no source
|
1t is not imposed upon the motormar
| by statute nor by any principle Of
law. nor is it at all clear why il
! should be paramount TO the duty OF
keeping lookout ahead. The phrase
paramount duty is used in Culbert-
! son V. Metropolitan st. Ry. Co, 14(
bdo. So; SO S W. S34, but with a mean
ing wholly inapplicable to the circum-
/, stances of this case. There one cable
road crossed another, and the gripmar
was obliged to look for the grip-traI
on the track and let go his grip a.
J the point marked in order to avoid g
severe accident TO his car. In this cast
no reason is shown why the conductor
Z should not be charged with the duty
of looking after aIighting passengers
signaling by bell to the motorman. We
regard the fact that the motorman
; while his car was still in motion, look
ed behind to see if the passenger had
jumped off not as relieving the com
pany from liability, but as materia
evidence supporting the verdict