2. Automobiles-Statutory presumption of due care by driver-Effect of viola tion of law of road and misjudging of clearance while blinded by street car headlight. Where one driving an automobile at night was running with only the small side lights lighted and did not see a carriage ahead until within 18 feet of it, when he turned to the right in violation of the law of the road, instead of stopping, as he might have done, although he knew an electric car was ap proaching, but there was evidence that he thought he had room to pass and that he was so blinded by the headlight on the electric car as to misjudge the distance, the court cannot say, as matter of law, that the presumption of due care, to which he was entitled under St. 1914, c. 553, was entirely overcome by the evidence to the contrary. 3. Street railroads-Injury to guests in automobile by collision-Contributory negligence-Question for jury. Where passengers in an automobile did all that reasonably could be expected of invited guests in the way of looking out for their own safety, the stopped, and the car went past him; and that the deceased continued to run until he reached a point about at the intersection of Bryn Mawr avenue and Park street when he was struck by the car and received inju ries which soon afterward resulted in his death. There was evidence that the car was running at a rate of from twenty to twenty-five miles an hour, that no signal was given, and that there was a powerful searchlight on the car. From this evidence, it is the contention of the plaintiff that the jury could have found the testator's injuries and death were due to the negligence of the defendant." In overruling exceptions to a judgment for defendant the court said: "The searchlight upon the car does not appear to have been different or more powerful than is in common use at night upon street cars, and its use at the time and place of the accident could not properly have been found to be negligent." This was an action to recover damages for the death of the plaintiff's decedent alleged to have been killed by a street car of the defendant while it was passing over a public crossing at the intersection of two city streets. The evidence tended to show that the defendant operated over the line in question both cars; only local cars were stopped to take on or discharge passengers; that immediately prior to the accident decedent and a companion were hastening to the intersection with the intention of taking the next local car which passed in the direction which they wished to go; that it was about 8 o'clock in the evening, and decedent was incumbered by packages; that as decedent and his companion approached the intersection they saw a car approaching, and decedent requested his companion to hurry ahead and flag the car; that decedent's companion did this, and in apparent response to his signal the motorman of the approaching car gave two whistles, which the decedent took to indicate that the car would stop but which the motorman testified were but the usual crossing signals and indicated no such intention. In apparent reliance upon the supposed intention of the motorman to stop, the decedent attempted to run across the track in front of the approaching car, then going at a speed of approximately 30 miles an hour, and in so doing he was struck and killed. The contention of the plaintiff in seeking to recover damages for the death was that the decedent was deceived by the whistles into thinking the car would stop, and that owing to the intensity of the headlights upon this car and another question of their due care was plainly for the jury in an action for personal injuries sustained when the automobile collided with defendant's street car. 4. Automobiles-Imputability of negligence of driver to guests injured in collision with street car where driver's due care question for jury. Where the due care of the driver of an automobile was a question for the jury no question of the imputability of his negligence to invited guests arises in an action by them for injuries received when the automobile collided with defendant's electric car. Actions by owner of automobile for injury to it and by invited guests for personal injuries from collision with defendant's electric car tried together. Exceptions to verdicts for all the plaintiffs overruled. For plaintiffs-John F. McGrath, and William I. McLoughlin. approaching from the opposite direction the decedent was unable to determine the speed at which the car was approaching. In connection with the proof of these allegations the trial court admitted evidence offered by plaintiff as to the quality, strength and effect of headlights on the cars of the defendant operated on its lines over this crossing. Objection was made by the defendant in appealing from a judgment for plaintiff and the denial of a motion for a new trial, that this evidence was incompetent because not limited to testimony as to the headlight of the car which struck the decedent or other cars of like character. While affirming the judgment for plaintiff subject to a remittitur of all in excess of $7,000, for reasons not material here, the court held that it was certainly competent for the plaintiff to produce evidence as to the character and effect of the headlight on the car which struck the decedent or on other cars carrying headlights of equal strength and brilliancy operating over this crossing under conditions substantially similar to those which obtained at the time of this accident. Simoneau v. Pacific Electric R. Co., 166 Cal. 264, 49 L. R. A. (N. S.) 737, 136 Pac. 544 (1913). 2. Standing near track. Plaintiff was struck by the running board of an electric car, as he was standing near the track waiting to take the car, and was injured. The accident happened in the nighttime, and plaintiff testified that he saw the car coming towards him and his companion; that the flashing of the headlight blinded them. Plaintiff also testified that he signaled the motorman to stop. The car was not scheduled to stop at this place, and was running at a speed of from 20 to 30 miles an hour, upon a private way. It was not made to appear that the motorman saw plaintiff and his companion after they had crossed the track and were standing near the white pole near where plaintiff was struck and injured. The court ordered a verdict for defendant, and the case was re ported to the supreme court. That court, in rendering judgment for defendant on the verdict, held that the fact that the car carried a powerful headlight, the rays of which tended to blind plaintiff as the car approached the place where he was standing, was not evidence of negligence on the part of the defendant; that the failure of the motorman to ring the bell or sound the gong or to give other signals of the approach of the car was not evidence of negligence on the part of the motorman, and that the motorman was not negligent in failing to make an effort to stop the car. Daigneau v. Worcester Consol. St. Ry., Mass. 120 N. E. 400 (1918). For defendant-Charles C. Milton, John M. Thayer, and Francis H. Dewey. DE COURCY, J. These actions, which were tried together, arose out of a collision between a car of the defendant and an automobile owned and operated by the plaintiff Bailey. A verdict has been returned in his favor for damage to the machine; and the other plaintiffs, who were riding with him, have verdicts for the personal injuries sustained by them. 1. The jury were warranted in finding that the motorman was negligent. For a thousand feet or more the approaching automobile was within his view, yet he failed to shut off the brilliant B. Struck by automobile when driver blinded. The first count in the plaintiff's complaint in her action to recover damages from the defendant street rail road company alleged that while plain tiff was attempting to cross a city street a Servant in charge of a street car of the defendant, approaching such street, "threw a glaring electric headlight east along said street, so that the plaintiff was blinded by said headlight, and a jitney bus in the charge and control of one Curtis Gordon, coming along Eleventh avenue from the east and approaching Sixteenth street at the same time struck plaintiff, and her right arm and right leg were bad ly sprained, and she was severely bruised in many places on her body and limbs, and plaintiff was made to suffer great mental and physical pain and anguish in consequence of her said injuries. Plaintiff avers that her said injuries were proximately caused by reason of negligence of the defend. ant in this: That the servant or agent of the defendant, having the charge and control of said motor car, while acting in the line and scope of his employment as such, knowing that a powerful electric headlight on the front of said electric motor car [which was approaching] along said street or public highway which would 18 N. C. C. A.-5 likely or probably blind pedestrians or automobile drivers passing along said highway, so that they could not see, negligently threw said electric headlight on and along said highway just as plaintiff was crossing said street and said jitney bus was approaching her, and so blinded her and the said Curtis Gordon, the driver of said bus, that neither saw the other, and she was struck by said automobile, as aforesaid as a direct and proximate consequence of said negligent act of defendant's said servant or agent at said time and place." The trial court sustained a demurrer to this and other counts of the complaint, and from judgment upon such demurrer plaintiff appealed. In affirming the judg ment the court, after pointing out that the respective positions of the plaintiff, the jitney bus and the defendant's street car necessarily were such that the headlight described in the count could not have blinded the plaintiff and at the same time the driver of the jitney bus since they were ap proaching each other from opposite directions, observed that a more reasonable conclusion from the other al legations of the count would be that the jitney driver was blinded while the plaintiff saw clearly. The court said with respect to the sufficiency of the count in general: "It is to be observed that the count A does not headlight on his car until after the collision, in violation of the rule adopted by his employer for the safety of persons in the situation of these plaintiffs. Stevens v. Boston Elevated Railway, 184 Mass. 476, 69 N. E. 338. There was also evidence that he not only failed to apply the brakes when the automobile got upon the track a short distance in front of him, but that he made no effort to put on the reverse for some time after the car came in contact with the automobile. 2. On the testimony of the plaintiff Bailey, there is much to indicate that the accident was due in part to his own contributory negligence. The collision occurred between 8 and 9 o'clock on the evening of July 4, 1915. He was running his car with his headlights charge negligence with respect to the use of a defective headlight, or tc the general practice of using this headlight. It does not assert that the use of a headlight of this character was an act of negligence. Since it is the office of headlights to give light ahead, it cannot be assumed that-though a headlight by reason of the brilliant rays it casts may or will blind the vis ion of a person looking directly toward it, or interfere with a view back of the point of the headlight's location -the use, under ordinary circumstances, of such an agency, however powerful, is negligence. As we interpret the count, it would predicate a charge of negligence upon the use of this headlight in the particular cir cumstances described in the count. Since, under ordinary circumstances, it is not a breach of duty to pedestrians or other travelers in public streets to use headlights on vehicles moving along or over public thoroughfares, a plaintiff, who would state a cause of action on account of the use of a headlight, must aver such facts as dis close a duty in the premises, and a breach thereof, to his proximately resulting injury. The allegation that the motorman 'negligently' threw the headlight along the avenue is but a conclusion of the pleader, even when allied with the further allegation that the motorman knew that its rays would likely or probably 'blind' people using the avenue and street or either; it being affirmed in the count that the sole means of her injury was a collision between the jitney bus and the plaintiff. Otherwise than through the possibility of an inference, consistent with a duty not to blind these travelers while they were on the street or avenue, imported by the affirmation that the headlight was 'negligently' thrown, there is nothing in the count upon which to rest the legal conclu sion the pleader assumes to deduce, viz., that a duty existed not to use a headlight that would likely or probably 'blind' the bus driver and the plaintiff then moving over these public thoroughfares. What this pleader would characterize as negligence is not justified by the facts averred; because what is averred discloses no duty, with respect to this plaintiff or this bus driver, that could, under the circumstances disclosed, be breached. It has long been accepted in this jurisdiction that the efficient averment in pleading of essential elements of a good cause of action cannot be permitted to lie in inference merely. It results that the grounds of demurrer taking the objection that only through the allegation of a conclusion of the pleader was a duty in the premises extinguished and only the small side lamps lighted, and did not see the carriage which was proceeding ahead of him until he was within 18 or 20 feet of it. Instead of then coming to a stop, as he might have done, he looked out to the left, observed that an automobile was coming toward him on that side, and then in violation of the law of the road, R. L. c. 54, § 2, endeavored to pass on the right the carriage in front of him, although he knew that the electric car was approaching. Perlstein v. American Express Co., 177 Mass. 530, 59 N. E. 194, 52 L. R. A. 959. On the other hand there was evidence that he thought he had room enough to pass in safety, and that he was so blinded by the rays from the headlight on the electric car as to misjudge the distance between the carriage averred were due to be sustained. The trial court was also justified in sustaining the demurrer to count A on the score that the averments of the count disclose no causal connection between the use of this headlight, on this occasion, and the collision of the jitney bus with the plaintiff. If neg. ligence was the proximate cause of plaintiff's injury in the manner described in the count, it was attributable to the driver of the bus, unless it is assumed (for it is not averred) that the collision was so immediate upon the blinding effect of the rays of the headlight that the driver of the bus had no adequate opportunity to stor his machine before striking plaintiff, or to avoid a collision with the plain tiff. There is no averment indicating even the relation, as respects distance between the jitney bus and the plain. tiff at the time the headlight 'blinded' the driver of the jitney bus. Non con. stat they may have been widely sepa. rated, so that the efficient, proximate cause of the collision was the driver's fault in allowing his machine to continue its movement over a public street when he was unable to see pedestrians lawfully using the thoroughfare in time to avert their injury by the prompt exercise of proper, skillful care and diligence." Kilgore v. Birmingham Ry., Light & Power Co., Ala. 75 So. 996 (1917). - II. Bicyclist colliding with team while blinded. Plaintiff sued the defendant street railway company to recover damages for personal injuries sustained by him when a light upon one of defendant's cars so blinded him that he collided with a team on the street as he turned the corner on his bicycle. Plaintiff testified that the light used by defendant was a large night reflector, and that as he came around the street corner the light was thrown on him and so blinded him that he was unable to guide his bicycle. It appeared from his testimony that the light blinded him only for a moment, and that it was the same light that he had seen defendant ordinarily use. Plaintiff saw the team a few steps ahead. The street was wide and the car tracks were on the side of the street, and there was ample room to pass without collision, but for the blinding effect of the light. In overruling plaintiff's exception to a verdict in favor of defendant, the court held that the evidence failed to show any negligence on the part of defendant, either in the character or management of the light, or in the running of the car. Spoatea v. Berkshire St. R. Co., 212 Mass. 599, 42 L. R. A. (N. S.) 876, 99 N. E. 467 (1912). |