#### GRACE M. SPITTLE, Administratrix, v. CHARLOTTE ELECTRIC RAILROAD COMPANY et al.

(Filed 8 May, 1918.)

1. Street Railways — Negligence—Proximate Cause — Fire Engines — Municipal Corporations — Cities and Towns — Streets—Railroads.

Where street cars, under a valid ordinance of a city, are required to stop for fire trucks, etc., going to a fire, and there is evidence that the motorman on one of them, on such occasion, could have heard the approach of a second fire truck after the passage of one of them, and also understood the signals given by the first of the approach of the second one and ran his car at a speed of 8 or 10 miles an hour into a street intersection where the second truck was to cross, running at 25 or 85 miles an hour, which could not have been stopped on seeing the street car in time to avoid the injury; in an action by an employee of the city on the second truck, driven by another employee in charge, to recover for a uer-sonal injury thus received; Held, defendants’ request for instruction eliminating the element of proximate cause was properly refused.

2. Same — Evidence.

When it is material to the inquiry in a personal injury negligence suit, whether defendant’s motorman on its street car should have heard the approach of a fire truck at a street crossing a block or two away, evidence is properly admitted tending to show the distance similar trucks could be heard by other motormen on similar cars under like conditions.

3. Instructions — Evidence—Negligence—Prayers for Instruction.

A modification of defendant’s request for instruction in a personal injury negligence case, so as to incorporate other negligence acts of defendant, the evidence tended to show and omitted from the request, is proper.

4. Instructions — Negligence—Concurring Negligence — Prayers for Instruction.

Where the evidence tends to show concurring negligence of the defendant in a personal injury negligence case, defendant’s request for instruction which omits this phase of the controversy is properly refused.

5. Instructions — Evidence—Questions of Fact — Prayers for Instruction.

A request for instruction is properly refused in a personal injury negligence case when erroneously based upon a conclusion of law instead of an issue of fact, or upon a principle of law unsupported by the evidence.

6. Street Railways — Municipal Corporations — Cities and Towns — Ordinances —Negligence—Question of Law.

Where a personal injury is alleged to have been proximately caused by the negligence of the defendant street ear company’s motorman, and there is evidence, among other things, tending to show he was running the car, under the circumstances, at a speed greater than that allowed by a valid city ordinance, his thus running the car is negligence as a matter of law, if established, entitling the plaintiff to recover if it was the proximate cause of his injury.

*4987. Municipal Corporations — Fire Regulations — Ordinances.

An ordinance regulating the speed of street cars therein outside of the fire limits, requiring them to stop for the passage of fire engines going to a fire, etc., giving the firemen thereon the right of way upon the streets, etc., is'a valid one.

Appeal by defendant from Long, J., at February Term, 1918, of MECKLENBURG.'

This action is by the administratrix of her deceased husband, who was a fireman in Charlotte, for his death caused by collision between the automobile fire truck upon which he was riding and the street car of the defendant. The collision took place at-the center of the intersection of two streets which crossed at right angles. The fire truck hit the street car about the center of the car, knocking it around and turning it crosswise.

The deceased was a machinist in the city fire department and riding on the fire truck, but had nothing to do with driving it or controlling its movements. The fire alarm having been given, the truck- was running at a speed of 25 to 35 miles per hour, exhausting, sounding its gong, and blowing its horn continuously from the time it left the central fire station until the collision. On approaching‘the Southern Eailroad crossing, it slowed up to about 15 miles an hour. Thereafter it again increased its speed to 25 to 35 miles per hour until the driver of the fire truck saw the street car, just before he reached the street upon which ■the street car was running. The driver of the truck, on perceiving the 'street car, applied his emergency brake and locked the rear wheels of his truck. According to the testimony of the draftsman who had prepared the blue-print in evidence, the distance from the Southern Eail-road crossing to the point of collision is 500 feet, and there is testimony that 150 feet'further the truck could have been seen by the motorman on the street car, who by that time was 80 feet from the point of collision.

The street car as it approached the crossing where the collision occurred was running 8 to 10 miles an hour until it got within 10 feet of the line of Park Avenue, on which the fire truck was coming, when it slowed down to 4 to 5 miles an hour, as if in the act of stopping. But when the motorman, looking down the avenue, saw the approach of the fire truck some hundred feet away, he suddenly speeded up the car and ran it on the crossing just in time to be hit by the fire truck. The motorman'admitted that if he had seen or had heard the approach of the fire truck he could have stopped his car within 45 feet if running from 8 to 10 miles an hour. Two of the defendants’ witnesses testified that if the car was running 6 miles' an'hour it could have been stopped within 12 feet.' The plaintiff’s witness testified that he had made the test with a similar fire truck, at the same point, under similar conditions, *499and tbat running- 27 miles an bour tbe truck could not bave been stopped in less tban 200 feet.

Tbe plaintiff’s witnesses testified tbat when this fire truck was running at a speed of 25 to 85 miles an bour, making its usual noises and signals, it could be beard from balf a mile to a mile, and tbat motormen operating cars similar to tbe one used should bave beard it from 2 to 8 blocks away. Tbe motorman testified tbat under sucb conditions be should bave beard it a block away.

The Ordinances of Charlotte, sec. 93, require all street cars running outside of tbe fire limits to stop on tbe approach of any fire engine being operated in response to tbe fire alarm. Section 94 gives fireman operating fire trucks tbe right of way over all streets while responding to a fire alarm. Section 408 (14) requires tbe driver of street cars upon tbe approach of fire trucks to stop bis car and keep it stationary until sucb fire truck shall bave passed. Tbe jury found tbat tbe plaintiff’s intestate was killed by tbe negligence of tbe defendant Southern Public Utilities Company as alleged in tbe complaint, and assessed tbe damages. From judgment upon tbe verdict tbe defendant appealed.

F. M. Redd and Gansler & Gansier for plaintiff.

G. ~W. Tillett and Osborne, Qocke & Robinson for defendants.

Clark, C. J.

Tbe issue is almost entirely one of fact as to tbe proximate cause of tbe collision in which tbe plaintiff’s intestate was killed.

Tbe plaintiff contends tbat tbe driver of tbe fire truck was not guilty of negligence; tbat running at a speed of 25 to 85 miles an bour in response to tbe fire alarm be bad a right to assume tbat tbe motormen of all street cars and other vehicles in obedience to tbe ordinances of tbe city would give tbe right of way. And tbat it was impossible for tbe driver of tbe truck to bave stopped in time to bave avoided tbe collision after be saw or should bave seen -tbe street car, and tbat if when be turned into tbe avenue on which tbe street car was running be bad endeavored to avoid tbe collision by slowing up and turning to tbe left or right, tbe truck would bave skidded broadside and bave done more damage to tbe occupants of tbe street car as well as to those on tbe truck.

Tbe motorman of tbe street car, according to bis own evidence, should bave beard tbe approach of tbe fife truck at least a block, and according to tbe evidence of tbe plaintiff’s witnesses at least three blocks away.

Assignments of error 1 and 2 cannot be sustained. It was competent for tbe plaintiff to prove by other motormen tbe distance in which they bad beard tbe approach of similar fire trucks while operating street cars under similar conditions.

As to assignments of error 4, 5, and 7, tbe trial judge committed no error in modifying tbe defendant’s prayers for instruction in regard to *500tbe negligence of tbe truck driver by requiring tbe jury to find tbat bis negligence was tbe sole proximate cause of tbe injury, before answering tbe issue as to negligence of tbe defendant “No.” Unless tbe negligence of tbe driver of tbe truck was tbe sole proximate cause of tbe injury, tbe court could not charge tbe jury to answer tbe first issue “No.” Crampton v. Ivie, 126 N. C., 894; McMillan v. R. R., 172 N. C., 853. In tbe latter case tbe Court said: “"Where intestate was killed by tbe collision of an automobile in which be was riding, independently driven by another, with a train at a crossing, tbe negligence of tbe driver may be considered only upon tbe question of proximate cause in tbe action against tbe railroad.”

WTiether on tbe facts of this case tbe negligence of tbe driver of tbe truck was tbe sole proximate cause of tbe injury, was a question essentially for tbe jury. According to plaintiff’s testimony, tbe approach of tbe truck could have been beard by tbe driver of tbe street car several blocks before tbe point of collision was reached. Tbe motorman says at least a block away, and tbe witnesses on both sides testify tbat tbe motorman could have seen tbe approach of tbe truck when it was 150' feet south of tbe place where tbe collision occurred.

Sixth assignment of error. It was proper for tbe judge to modify tbe defendants’ fourth prayer for instruction by requiring tbe jury to find tbe driver of tbe street car was not guilty of any other act of negligence, though not specified in tbe prayer, before answering tbe first issue “No.”

Eighth assignment of error. Tbe court also properly refused to charge as requested in tbe defendants’ sixth prayer, because tbat required tbe jury to answer tbe first issue “No,” even though they should find tbe motorman was guilty of concurring negligence.

Ninth assignment of error. Tbe court also properly modified tbe defendants’ seventh prayer by requiring tbe jury to find tbat tbe alleged negligence of tbe truck driver was tbe sole proximate cause of tbe injury before they could answer tbe first issue “No.”

Tenth assignment of error. Tbe court also properly refused the defendants’ eighth request to charge, for it was a question of fact as tO' whether tbe motorman beard, or understood, tbe warning of tbe driver of tbe first truck tbat another was following.

Eleventh and twelfth assignments of error. Tbe defendant’s ninth and tenth prayers were refused evidently because not based upon tbe evidence, tbe motorman having admitted tbat if tbe truck bad been making tbe usual noises be could have beard it a block away.

Thirteenth assignment of error. Tbe court properly declined to give tbe twelfth instruction asked because -if tbe motorman discovered, either from tbe warning of tbe driver of tbe first truck, or otherwise, tbat a *501second truck was approaching in consequence of the alarm of fire, the city ordinance required him to stop his car immediately.

The fourteenth assignment of error. The court did not err in charging as requested by the plaintiffs in their second prayer. If the motorman ought to have seen the approach of the second truck in time to have stopped, his failure to do so was in violation of a city ordinance and negligence as a matter of law. If such negligence was the proximate cause of the injury, the defendant was liable therefor.

The case turns almost entirely upon the question whether upon the evidence there was violation of the city ordinance by the motorman which was the cause or the concurring cause of the collision. There can be no question of the validity of the ordinances in question. The plaintiff not being in control of the fire truck, the defendant was not entitled to have the issue of negligence answered in its favor unless the negligence of the driver of the fire truck was the sole proximate cause of the collision. Crampton v. Ivie, supra.

The amount of damages, and the earnestness and ability with which the cause has been presented in this Court, and doubtless in the court below also, have caused us to consider with great care the contentions of the parties. Rut aside from the issues of fact, which were solely for the jury, the propositions of law are in a small compass, and we think are summed up in stating the above conclusions of the Court.

No error.