The Federal Reporter with Key-Number Annotations, Volume 182: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States, December, 1910-January, 1911. Page: 58
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182 FEDERAL REPORTER.
actually discovered the approach of the automobile when it was only
80 to 100 feet from him. It was then moving along at a rapid rate.
The witnesses put it at 18 to 20 miles per hour. The chauffeur, not
seeing the car until within about 12 feet of it, attempted to turn sud-
denly to the right and avoid a collision, but in the effort to do so his ma-
chine skidded and struck the car on the side. Plaintiff either by some
jerk of the car incident to the handling of it by the motorman or by
some jolt occasioned by the impact of the automobile was thrown or fell
against the corner of a seat near which she was standing and received
the injury complained of.
The negligence counted on for recovery is the careless operation
of the car by the motorman and the collision consequent thereon.
The only evidence claimed to sustain the charge as made is (1) the
presumption arising from the fact that an injurious accident happened
to the plaintiff while a passenger on defendant's car; (2) that the
motorman could have seen the approach of the automobile if he had
exercised reasonable care to look down First Avenue South over which
it was coming in his direction in time to have stopped his car, or other-
wise have avoided the collision; and (3) that, when he did discover
it, he did not exercise the reasonable degree of care imposed upon him
by law to avoid the collision.
It may be conceded that the fact f a collision and a resulting in-
jury to a passenger creates a presumption of negligence on the part of
the carrier, but this is only a rebuttable presumption--one which may
be overcome by the facts of the case when they appear (Wabash R.
Co, v. De Tar, 73 C. C. A. 166, 141 Fed. 932, 4 L. R. A. [N. S.] 352;
Rich v. C., M. & St. P. Ry. Co., 78 C. C. A. 663, 149 Fed. 79), and we
think it was so overcome by the undisputed facts of this case. The
trolley car had fixed and immovable tracks on which it had the right
of way, and there is no substantial evidence that the motorman was
not operating it with all due care as he approached and was crossing
First Avenue South when it was struck by the automobile. The con-
tention that the motorman should have seen the automobile as it was
approaching with the speed complained of, and should have stopped
his car or accelerated its motion so as to avoid collision, is without
merit. The motorman might reasonably act on the presumption that
any competent chauffeur in charge of an automobile would either stop
his machine as it approached the car or turn the corner and pass along
by the side of the car in the direction it was moving, or otherwise
avoid plunging into it. We may take judicial cognizance of the fact,
now well known, that an automobile even when going at the rate of
speed complained of in this case yields ready and quick obedience to
the guiding wheel in the hands of a competent chauffeur.
We accordingly hold that, under the state of facts disclosed by the
record, the motorman had no reasonable ground to believe that the
chauffeur would not stop or turn his machine before collision became
inevitable, and, a fortiori, that he would recklessly drive his machine
against the side of the car. No negligence is therefore imputable to
him for not having seen the approach of the automobile in time to
avoid the injury. We have also concluded that, when the motorman
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The Federal Reporter with Key-Number Annotations, Volume 182: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States, December, 1910-January, 1911., legislative document, 1911; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38228/m1/69/: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.