Ferrage v. Honolulu Rapid Transit & Land Co.

Citations

• 24 Haw. 87
• 1917 Haw. LEXIS 11

Syllabus

<p>Negligence — proximate cause — question for court or jury.</p> <p>Where the facts are undisputed and but one reasonable inference can be drawn therefrom it is the duty of the court to pass on questions of negligence, contributory negligence and proximate cause as questions of law.</p> <p>Same — automobiles—duty of driver at street crossings.</p> <p>The duty to observe ordinary care requires that the driver of an automobile must anticipate the possibility of meeting pedestrians or other vehicles at street crossings and have his machine .under such control as, may be necessary to avoid collision. The mere sounding of a horn is not a sufficient precaution when the circumstances demand that speed be slackened or the machine be stopped.</p> <p>Same — contributory negligence — the last clear chance.</p> <p>Where the evidence shows negligence on the part of both plaintiff and defendant, in order that the rule of “the last clear chance” may be applied, the plaintiff either must have been in actual peril and unable to extricate himself, or in immediate danger of getting into peril to the knowledge of the defendant, and there must have been a reasonable opportunity thereafter for the defendant to have averted injury, otherwise, the negligence of plaintiff and defendant being concurrent at the time of. the injury, the plaintiff’s negligence is to be regarded as a proximate cause of the injury, and the plaintiff cannot recover.</p> <p>Same — contributory negligence — wilful injury by defendant.</p> <p>The rule that contributory' negligence of the plaintiff does not preclude the recovery of damages where the injury was caused by the wilful act of the defendant has no application in a case where the gravamen of the plaintiff’s complaint was negligence — not wilfulness — and the case was tried on the theory of negligence on the part of the defendant.</p>