Fenneman v. Holden

Irving, J., delivered the opinion of the Court. The appellee sued the appellant for injuries suffered in consequence of being struck by an ice wagon of the appellant, driven by appellant’s servant, alleged to have been driven at reckless speed into a street which appellee was crossing. Appellee testified that he was seventy-five years old, and was attempting to cross Baltimore street from its southwest corner, where Gay street intersects it; that the way seemed clear when he started, but when he got to the middle of the street he saw an ice wagon coming down Gay street, southward, g,t a reckless speed; that it turned in Baltimore street cutting him off from crossing the street; that he attempted to get out of its way, but could not do so, and was struck by the hub of the ice wagon, and had his leg broken; that when the accident happened he saw a street car, just above him on Baltimore street, and that when he was struck he was between the North and South street car tracks, near the flagging; that he looked round and saw nothing in his way, and it was his habit in crossing the street to exercise care, because he was hard of hearing; that he was strong ⁶ and active for his age. On cross-examination, he said he was very hard of hearing, and did not know of his danger until some one called out to him to look out; that he did not see the ice wagon until it was right on him, and then he tried to get out of the way hy running up the track, when he was struck; and that he saw no street car either before or after the accident.

Appellant also proved by the conductor of the street car, that he saw the plaintiff crossing the street as he was taking his car down Baltimore street; and when thé car got to the switch, the plaintiff was between the horses of the street car and the ice wagon. By the driver of the car he proved that he saw the plaintiff cross the street, and when he got part of the way the ice wagon suddenly turned into Baltimore street, when the plaintiff got scared and turned towards the street car, and ran between the tracks “some little distance/” when the ice wagon going west on the north track, driven at a reckless speed struck him; that the plaintiff was between the horses of the street car and the ice wagon; and that if the wagon had been driven on the street and not on the track, the accident would not have occurred. The defendant proved by a witness riding on the front platform of the street car that he saw the whole accident, and that the plaintiff attempted to run across the street in front of the horses of the street car going east on Baltimore street; and that he just escaped being struck by the horses of the street car; and that when he got to the middle of the street between the north and south tracks of the street car, he was struck by the hub of an ice wagon going west; that when the plaintiff got to the middle of the street the horses of the street car had alreadjr passed him. On cross-examination he said he called to the boy driving the wagon to look out, before plaintiff was struck.

Upon this state of facts numerous prayers were granted and refused on the part of the plaintiff, and this appeal ⁷ only involves the correctness of the Court’s action in respect to these prayers. The first prayer of the defendant was rejected, hut appellant’s counsel waives that prayer in this Court, and all objection to its refusal. The defendant’s fourth prayer asked the Court to instruct the jury, that if they found the plaintiff was deaf, or hard of hearing, that this infirmity “cast on him the duty of being more careful in keeping a proper look-out for passing vehicles than if he was in the possession of his faculty of hearing.” The rejection of that prayer was plainly wrong. It is text book law, and fully sustained by decisions of high repute, that an infirmity in any of the senses makes’it necessary for a person to be more vigilant and cautious in the use of his other senses.

The importance and necessity for this rule is especially illustrated in this case. Here was a plaintiff attempting to cross a public street, upon which street cars were running, and across which ran another very public thoroughfare, in and down which the wagon, which inflicted the injury, was coming with rapidity. Being very hard of hearing, as he testified, he could not rely on his hearing for notification of an approaching vehicle, therefore must rely on his sight. He says he did not see either the street car coming in one direction, nor the wagon coming directly in front of him.

It was therefore very important that the jury’s attention