Baltimore & Potomac Railroad v. Webster

6 App. D.C. 182, 1895 U.S. App. LEXIS 3583

Opinion

Mr. Chief Justice Alvey

delivered the opinion of the Court :

This is an action by the plaintiff, Joseph W. Webster, for personal injuries suffered by him, occasioned, as he alleges, by the negligence of the defendant company. The accident occurred on the nth of December, 1884, when the plaintiff was a boy less than twelve years of age. The case was tried in the court below in January, 1895, after the plaintiff had nearly attained his twenty-second year of age. The trial resulted in a verdict and judgment for the plain-’ tiff, and the defendant has appealed.

The accident producing the injury happened on Maryland avenue in this city, between Eighth and Ninth streets, southwest. The defendant company, at the time of the accident, maintained and used on Maryland avenue four or five railroad tracks, the most northerly of which was generally used for passenger trains leaving the depot at Sixth street, and going south by way of the Long Bridge over the Potomac River. And it appears that the plaintiff was endeavoring to cross the tracks of the railroad between Eighth and Ninth streets, when he was run over by a passenger train on the north track and was severely injured.

According to the plaintiff’s own testimony, and he was the principal witness that testified in support of his claim, he says, that about half past 5 o’clock p. m., he started for home from the south side' of Maryland avenue in a run northward, along Ninth street towards Maryland avenue; and when approaching the railroad tracks he saw the smoke of a train coming from the direction of the Long Bridge, but thought he could get across the tracks; that a number of freight cars were standing on the track, extending eastwardly from Ninth street towards Eighth; that he turned to the right and ran through an opening between the cars; that he was looking at the train coming from the Long Bridge and did not observe any other train. But as he got on the other side of the car, he saw the passenger train coming from the depot “ right on ” him; that he could not have turned back then, because the freight train was almost on him; that he could not, before passing through the opening between the standing cars, see the train coming from the east (from the depot), because of the cars obstructing his view ; that the next thing he remembered was both engines passing; that he could not say which train ran over his foot; that after the accident he was taken home by persons who came to his assistance.

The plaintiff was cross-examined by counsel for the defendant at great length; but such cross-examination brought out nothing materially changing the substance of the examination in chief, as we have stated it. There, was other testimony produced, but nothing that affects the legal questions that are presented on this appeal.

At the close of the evidence the defendant asked an instruction from the court that the verdict of the jury should be rendered for the defendant. But that request was refused, and we think rightly so. There is no denial of the fact that there were freight cars standing on the tracks between Ninth and Eighth streets ; and if they were, as contended by the plaintiff, left standing there unnecessarily and impi'operly, and such standing cars did prevent a view of the moving train that inflicted the injury upon the plaintiff, and such injury would not have occurred but for such obstructed view of the moving train, then, clearly, it was right and proper that those questions should have been submitted to the jury for their determination, as showing negligence on the part of the defendant. The unauthorized act of allowing the cars to stand on the tracks in one of the thoroughfares of the city, which all persons have a right to use, and where such standing cars might be the means of exposing people to danger, cannot be otherwise regarded than an act of negligence, if-not as a positive nuisance. Hence the court below was quite right in rejecting the seventh and eighth prayers of the defendant for instruction, which requested the court to declare to the jury that the allowing the cars to stand on the tracks in the avenue between Eighth and Ninth, and Ninth and Tenth streets, could not be considered as evidence of negligence on the part of the defendant. Under the circumstances in proof, the court could not withdraw the case from the jury. The court could only determine the question, as matter of law, whether there was any evidence tending to prove the negligence complained of; and if such evidence was found to exist, it was the duty of the court to submit it to the consideration of the jury. Where a given state of evidence is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury; but where the evidence is such that all reasonable men must draw the same conclusion from it, the question of negligence is one of law for the court. Grand Trunk Railway v. Ives, 144 U. S. 408, 417. Or, as said by the court in a subsequent case, “ The question of negligence is one of law for the court only where the facts are such that all reasonable men must draw the same conclusion from them, or, in other words, a case should not be withdrawn from the jury unless the conclusion follows as matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish.” Gardner v. Mich. Central Railroad Co., 150 U. S. 349, 361.

Applying the principles just stated, it would seem to be clear that the case was fairly and properly submitted to the jury, and that there was no error in refusing the first prayer of the defendant.

With respect to the question of contributory negligence of the plaintiff, that was also properly submitted to the jury. As matter of defence, it was incumbent upon the defendant to establish such contributory negligence, unless shown in the proof produced by the plaintiff The plaintiff, at the time of the injuiy received, being a boy under twelve years of age, as shown by the proof, could not be expected to exercise the same degree of care and caution to avoid danger to himself as would be exacted of an older or an adult person, under like circumstances. The question in all such cases is whether the child has exercised such care as was reasonably to be expected from a person of his age and capacity; and the mere fact that he was old enough to know the probable consequences of the act which caused his injury will not conclusively determine that he was negligent in a degree to defeat his right to recover, since it is not to be expected that a child will exercise the measure of prudence or caution in avoiding danger that we expect of an adult. Railroad Co. v. Gladmon, 15 Wall. 401; Railroad Co. v. Stout, 17 Wall. 657, 660; Plumley v. Birge, 124 Mass. 57. Of course, if a child gets into a place of danger and is injured without the fault or culpable negligence of the defendant, there can be no ground of action. But, on the evidence in this case, the court could not declare, as matter of law, that there was contributory negligence, and therefore there was no right to recover. The evidence presented a case to be passed upon by the jury, though there were grounds for a diversity of conclusions from that evidence. The jury appear to have been very fully and clearly instructed, both as to the negligence of the defendant and the contributory negligence of the plaintiff, and, indeed, as to the entire case, by granting the first prayer of the plaintiff, and the fifth prayer of the defendant. These prayers were reiterated and enforced in the general charge to the jury.

The first special instruction granted upon request of the plaintiff is as follows :

“ If the jury believe from the evidence that the plaintiff, in attempting to run around an engine or train approaching 9th street from the west at or about the time of the accident, was exercising that degree of care which under like circumstances would reasonably be expected of one of his years and capacity, and that he was prevented from seeing the train approaching from the east by cars standing on defendant’s tracks on the open space east of 9th street, which cars had been or were being there unloaded, and that he did not see the said train coming from the east until it was too late for him to get out of the way of the said engine or train approaching from the west without imminent danger of being run over, and should further find that in a reasonable effort to avoid such danger he fell or was thrown upon the track along which the said train was approaching from the east and was thereby injured, then the plaintiff is entitled to recover in this action.”

And by the fifth prayer of the defendant, which was granted, the jury were instructed “that before they can find a verdict against the defendant railroad company they must be -satisfied from the evidence that the defendant or its agents was or were guilty of negligence and that such negligence caused the accident; and the jury are further instructed that the burden of proof is upon the plaintiff to show to the jury by satisfactory evidence that the railroad company was guilty of such negligence.”

There were three other special instructions granted at the instance of the defendant, which fully covered grounds of defence taken by the defendant in the course of the trial, but which the jury did not find to be supported by the evidence. The sixth and ninth prayers of the defendant were properly rejected, if for no other reason, because they wholly ignored the fact of the qualified degree of care and diligence required of the plaintiff by reason of his age, and withdrew from the consideration of the jury all possible éffect of the standing cars, on the conduct of the plaintiff in placing himself in a position of peril, according to his testimony, the credibility of which was exclusively for the jury to consider.

With respect to the general charge of the court to the jury, so far as the same has been excepted to, we perceive nothing ifi it inconsistent with the special instructions given and nothing of which the ‘defendant can in reason complain. It may be, that sentences extracted from the charge, if read apart from their connection, might need qualification. But such qualification was given in the context, and the jury could not possibly have been misled by the charge taken in its entirety. Evanston v. Gunn, 99 U. S. 660.

Finding no error, the judgment will be“affirmed.

Judgment affirmed.