The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-09-26
Street RY.
LOSES ACTON CASE
SUPREME COURT UPHOLD JUDGE
POLLOCK IN EVERY PARTlcu-
LAR REGARDING THE LAW AS
GIVEN TO JURY-AcToN GETS
s2,45o DAMAGES.

BY decision handed down late Sat-
urday afternoon the supreme court
of the state upholds the decision rem
dered in Judge Pollock's court award
ing damages to the extent of S2450
to William Acton against the Fargo
Moorhead. Street Railway Co.
Acton was driving in front of a
street car and was run down by the
car. The supreme court in its decision
stated that "a street railway companys
right in a street is only to use it in
common with the public. 1t has no
exclusive right of travel even upon it's
tracks, and is bound to use the same
care in preventing a collision as the
driver of a wagon or any person en-
tering upon the highway"
The court also says that any person
driving upon street car track does
not need to keep continually looking
back to see If a car is coming. 1t
holds that the street car company must
give warning that a car is coming in
time for a man to get out Of the way.
Syllabus of the Case.
Following is the complete syllabus
of the case:
In the Supreme Court, State of North
Dakota, April Term, 1910. - William
Acton, plaintiff and respondent, VS.
Fargo & Moorhead Street Railway Co,
defendant and appellant.
/. Where, as. in this case, the ver-
diet is supported by substantial evil
dence and the trial court has declined
to disturb such verdict when chal-
lenged for alleged insuficiency of the
evidence. such ruling will not be re-
versed in this court.
2. A plaintiff may recover damages
for an injury caused by the defend
ants negligence notwithstanding the
plaintiffs own negligence exposed him
to the risk of injury, if such injury
was proXimaJely caused by the de
TO the risk of injury, if such injury
aware of plaintiffs danger) to use or
binary care for the purpose of avoid
ing injury to him. Where defendant
had the last clear chance or oppor-
tunity for avoiding an accident, not
withstanding the negligence of plain
tiff, he is considered in law responsible
for such accident.
8. The right of a street railway
company in the street is only to use
it in common with the public. 1t has
no exclusive right of travel, even upon
it's track, and is bound to use the same
care in preventing a collision as the
driver of a wagon, or any person
crossing or entering upon the high
way
4. Street cars have precedence
necessarily in the portion Of the way
designated for their use. This superior
right must be exercised, however, with
proper caution and due regard for the
right of others; and the fact that it
has a prescribed route does not alter
the duty of the street railway company
to the public, which have the right
to travel upon the track in the exercise
of due care. In case of a street car
overtaking vehicle directly in line
with its progress, and a possible OBJ
stacle In its way, proper regard for
the rights of others requires that the
car be brought under such control
that it may be stopped, If necessary
before reaching the obstructing We
hicIe.
8. Such timely and reasonable warn
ing of the approach of street car
must be given as will enable others
in the exercise of due care to avoid
injury from 1t.
s. If those in charge of a street car
discover, or should by the exercise of
ordinary care have discovered, plain
tiffs peril while driving a wagon on
the track in time to have avoided a
collision, and did not do so. plaintiffs
negligence in failing to look back for
an approaching car would not preclude
his recovery. Whether defendants
motorman in charge Of a street car
which collided with plaintiffs vehicle
made proper efforts to avoid the colli-
sion after he saw, or by the exercise
of ordinary care could have seen plain
riff's peril held, under the facts, to be
for the jury.
Z. One driving along a street rail-
way track in daylight has the right to
suppose that if car is approaching
from the rear a proper lookout is
maintained and that ordinary care
will be exercised not to injure him.
8. 1t cannot be held, as matter Of
law, that person travelling upon a
street along which a street car track
is laid, is bound to constantly look
backward in driving upon or in close