ROBINSON v. LOUISVILLE RY. CO., 112 F. 484

WANTY, District Judge, after making the foregoing statement, delivered the opinion of the court. Taking the instructions as a whole, the jury must have understood that the question of the defendant’s negligence should be confined to the time between the discovery of the wagon by the motorman and the collision.

The court seems to have applied to the facts of this case the rule governing the liability of a defendant operating a steam railroad for injury to a person upon its right of way where the injury must be willfully inflicted, or caused by negligence so gross as to authorize the inference of willfulness to sustain a recovery. In such a case the company owes no duty to trespassers upon its tracks, and if, after the person is discovered, the engineer does all in his power to avert the accident, negligence cannot be imputed to the railroad company, and the plaintiff could not complain of the instructions here given.

There is, however, no analogy between such a case and an injury caused by a street car occupying the streets of a city with pedestrians and teams. The defendant had no exclusive right to the use of the street between its tracks, but only the right to use it in common with the public. As a street car cannot turn out to the right nor to the left, it is the duty of a vehicle in advance of it to get out of the way, and not obstruct the passage, but the driver of the car must use care to prevent collisions. Railway Co. v. Whitcomb, 14 C. C. A. 183, 66 Fed. 915; Hicks v. Railway Co. (Mo.) 25 L. R.

A. 508, and cases cited in note' (s. c. 27 S. W. 542). It was the duty of the motorman, in exercising the care incumbent on him, to ascertain whether the track ahead was clear, and to have his car under such control as to admit of its being stopped after he saw obstructions ahead of it. La Pontney v. Cartage Co., 116 Mich. 514, 74 N. W. 712, and cases there cited.

It follows that if he could, by the exercise of due care, have seen the wagon in which the plaintiff was riding as far as other witnesses testified to have seen it, and if he could, after he should, by the exercise of due care, have seen it, gotten his car under such control as to have prevented the collision, it was his duty to have done so, and those questions should have been left to the determination of the jury. The court should have allowed the witnesses to testify to their opinions regarding the rate of speed at which the car was moving. It was not a question for experts.

No technical knowledge was required for such an opinion. The experience the witnesses had had .in observing the speed of passing objects- would go to the weight of the testimony, not to its admissibility. 12 Am. & Eng. Enc. Raw (2d Ed.) 488-493, and cases there cited; Railroad Co. v. Van Steinburg, 17 Mich. 99 (Ann. Ed.), and cases cited in note. The defendant claims that upon consideration of all the testimony the case should have been taken from the jury, and a verdict directed for it, and therefore the errors complained of were not prejudicial to the plaintiff.

The only authority cited by counsel for this claim is Railroad Co. v. Moseley, 6 C. C. A. 641, 57 Fed. 921, and cases cited in that opinion. Those were cases of steam railroads, and the reasoning has no application to the facts of this case. The distinction is clearly shown in the opinion of Judge Jenkins in Stelk v. McNulta, 40 C. C. A. 357, 99 Fed. 138, and is pointed out above.

The objections made by the defendant to the evidence and instructions, not being admissible under the allegations of the petition, should have been made in the court below when the petition could have been amended to conform to the proofs. In the absence of such objection, the general allegations of negligence in the petition must be held sufficient after judgment. The errors pointed out make it necessary to reverse the judgment, and order a new trial.