Mr. Justice Stafford,
of the Supreme Court of the District of Columbia, who sat with the Court in the hearing and determination of the appeal in the place of Mr. Justice Robb, delivered the opinion of the Court:
The plaintiff, Francis W. Fitzpatrick, sued the defendant, Capital Traction Company, in damages for injuries sustained by him by being thrown, or caused to fall, from a car of the defendant through the negligence of the defendant’s conductor in leading the plaintiff to believe that the car had come to a stop, and thereby inducing him to take a position upon the platform or step from which be fell or was thrown to the ground, while the car was still in motion. Verdict and judgment for defendant. The car was one having sliding doors, operated by a lever, between the car itself and the platform, intended to he kept closed except when the car was at a stop, and the negligence alleged was in the conductor’s opening the door while the car was still in motion, thereby inducing the plaintiff to believe that the car had stopped and to pass through the door to the platform or to the step from the platform. The declaration contains no allegation that the plaintiff was led to step off the car, nor that he did, in fact, step off the car. The allegation is clear and distinct that he fell off or was thrown off.
The defendant pleaded not guilty, and contributory negligence.
It is plain, therefore, that as the plaintiff was bound to recover, if at all, upon the case made in his declaration, he could not recover upon proof that he voluntarily stepped from the car and that he was led to do so by the negligent act of the conductor.
The court instructed the jury in a manner satisfactory to the plaintiff so far as the question of the defendant’s negligence [18]*18was concerned; but the plaintiff assigns error in three respects touching the question of contributory negligence. The point chiefly relied upon is that the court instructed the jury that if after the plaintiff had passed through the door to the platform he voluntarily stepped or jumped therefrom while the car was moving at a rate of speed which made the act dangerous'for a man of ordinary prudence he could not recover. Touching this assignment it is enough to say that if the plaintiff voluntarily-stepped or jumped from the car he could not possibly recover under his declaration, whether in so doing he was guilty of contributory negligence of not.
Another assignment concerns the exclusion of an offer of evidence. The accident happened in the night, and the plaintiff offered to show as a part of the occurrence that another car was passing in the opposite direction upon a track parallel to and adjoining the one on Avhich plaintiff’s car was running. So far as concerns the question of the plaintiff’s negligence in stepping or jumping from the car, if that is what he did, the same remarks would apply to this offer as to the preceding assignment of error. If, hoAvever, the offer concerns the alleged negligence of the plaintiff in passing through the door to the platform and in taking the position from which he alleged that he fell or was thrown off, it deserves a different consideration. Treating the offer in the latter vieAv, it is to be examined with respect to the point of time to which it was addressed. If it was offered to show that at -the very time AA'hen the plaintiff was rising from his seat or passing through the door or talcing his position upon the platform preparatory to alighting the other car was passing and the plaintiff obseiwed it, the fact might be admissible as having some tendency to show that the plaintiff as a reasonable and careful man was confused thereby and misled into thinking that the car in which he was riding, had come to a stop. Being offered upon the question of contributory negligence only, perhaps the plaintiff is right in urging that it was not necessary that the circumstance of the passing of the car should have been' mentioned in the declaration. . But when the offer is examined it will be found to be too general and indefinite to make its ex-[19]*19elusion error. It was not confined to the time which alone could make it material, but was stated as “at about the time of the aceident,” and again, as “at the time when plaintiff was on ihe cast track going north,” which may have been before the door was opened, or after he had reached the platform and the place from which his declaration alleged that he had fallen or been thrown. The plaintiff made no mention of the circumstance when he told fully the story of the accident upon the stand. II e was afterwards recalled and this offer was made. Apparently it was not a circumstance of any particular importance in the mind of the plaintiff.
The only remaining assignment relates to another rejected offer of evidence asserted to have a bearing on the question of the plaintiff’s negligence. Judging from the bill of exceptions, the plainti ff testified fully and with great particularity touching all that occurred before the accident, except with respect to the precise manner of his leaving the platform or step. Whether he fell off or was thrown off he could not say. Whether he stepped off, he said, was “exceedingly doubtful,” but he was positive he did not jump off. As to all that occurred up to the time he had reached the platform he said that his recollection was very “vivid, clear,” but as to what happened immediately after, it was “very vague.” He made no claim in his own testimony that he was not in the full possession of his faculties, except that he said he had fallen asleep, and roused up after he passed the street where he had intended 1o get off and saw the red light at that corner. That he was startled, “as a man will be when awakened,” asked the conductor if they had passed Webster street, received the conductor’s reply that they had, and were near the barn; thereupon turned, pushed the bell button, turned back, saw the conductor also pressing a bell button, remained seated, waited a reasonable time for the car to come to a stop, and, being thoroughly convinced that it had come to a stop, arose to leave the car; that the conductor, still standing inside the rear exit door, put his hand behind him and opened the door and stepped to one side, and the plaintiff went out on the platform, bidding the conductor, “Good night,” as he passed him, [20]*20and hearing the conductor respond, “Good night.” All this without any suggestion in his testimony that the plaintiff was in any unusual condition as to his mental faculties, or any statement by him that he had been without sleep. Later in the trial, when one of his physicians was upon the stand testifying as his witness to the character and extent of his injuries, the physician ■was asked and stated about having seen the plaintiff twice on the day of the accident and prior thereto, first at about 9 o’clock in the morning and again at about 1:30 in the evening, at the hospital where his wife and daughter were for the purpose of an operation; that when the plaintiff left him he was much elated by having received good news of the patients’ condition, and was in good physical condition.
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Mr. Justice Stafford,
of the Supreme Court of the District of Columbia, who sat with the Court in the hearing and determination of the appeal in the place of Mr. Justice Robb, delivered the opinion of the Court:
The plaintiff, Francis W. Fitzpatrick, sued the defendant, Capital Traction Company, in damages for injuries sustained by him by being thrown, or caused to fall, from a car of the defendant through the negligence of the defendant’s conductor in leading the plaintiff to believe that the car had come to a stop, and thereby inducing him to take a position upon the platform or step from which be fell or was thrown to the ground, while the car was still in motion. Verdict and judgment for defendant. The car was one having sliding doors, operated by a lever, between the car itself and the platform, intended to he kept closed except when the car was at a stop, and the negligence alleged was in the conductor’s opening the door while the car was still in motion, thereby inducing the plaintiff to believe that the car had stopped and to pass through the door to the platform or to the step from the platform. The declaration contains no allegation that the plaintiff was led to step off the car, nor that he did, in fact, step off the car. The allegation is clear and distinct that he fell off or was thrown off.
The defendant pleaded not guilty, and contributory negligence.
It is plain, therefore, that as the plaintiff was bound to recover, if at all, upon the case made in his declaration, he could not recover upon proof that he voluntarily stepped from the car and that he was led to do so by the negligent act of the conductor.
The court instructed the jury in a manner satisfactory to the plaintiff so far as the question of the defendant’s negligence [18]*18was concerned; but the plaintiff assigns error in three respects touching the question of contributory negligence. The point chiefly relied upon is that the court instructed the jury that if after the plaintiff had passed through the door to the platform he voluntarily stepped or jumped therefrom while the car was moving at a rate of speed which made the act dangerous'for a man of ordinary prudence he could not recover. Touching this assignment it is enough to say that if the plaintiff voluntarily-stepped or jumped from the car he could not possibly recover under his declaration, whether in so doing he was guilty of contributory negligence of not.
Another assignment concerns the exclusion of an offer of evidence. The accident happened in the night, and the plaintiff offered to show as a part of the occurrence that another car was passing in the opposite direction upon a track parallel to and adjoining the one on Avhich plaintiff’s car was running. So far as concerns the question of the plaintiff’s negligence in stepping or jumping from the car, if that is what he did, the same remarks would apply to this offer as to the preceding assignment of error. If, hoAvever, the offer concerns the alleged negligence of the plaintiff in passing through the door to the platform and in taking the position from which he alleged that he fell or was thrown off, it deserves a different consideration. Treating the offer in the latter vieAv, it is to be examined with respect to the point of time to which it was addressed. If it was offered to show that at -the very time AA'hen the plaintiff was rising from his seat or passing through the door or talcing his position upon the platform preparatory to alighting the other car was passing and the plaintiff obseiwed it, the fact might be admissible as having some tendency to show that the plaintiff as a reasonable and careful man was confused thereby and misled into thinking that the car in which he was riding, had come to a stop. Being offered upon the question of contributory negligence only, perhaps the plaintiff is right in urging that it was not necessary that the circumstance of the passing of the car should have been' mentioned in the declaration. . But when the offer is examined it will be found to be too general and indefinite to make its ex-[19]*19elusion error. It was not confined to the time which alone could make it material, but was stated as “at about the time of the aceident,” and again, as “at the time when plaintiff was on ihe cast track going north,” which may have been before the door was opened, or after he had reached the platform and the place from which his declaration alleged that he had fallen or been thrown. The plaintiff made no mention of the circumstance when he told fully the story of the accident upon the stand. II e was afterwards recalled and this offer was made. Apparently it was not a circumstance of any particular importance in the mind of the plaintiff.
The only remaining assignment relates to another rejected offer of evidence asserted to have a bearing on the question of the plaintiff’s negligence. Judging from the bill of exceptions, the plainti ff testified fully and with great particularity touching all that occurred before the accident, except with respect to the precise manner of his leaving the platform or step. Whether he fell off or was thrown off he could not say. Whether he stepped off, he said, was “exceedingly doubtful,” but he was positive he did not jump off. As to all that occurred up to the time he had reached the platform he said that his recollection was very “vivid, clear,” but as to what happened immediately after, it was “very vague.” He made no claim in his own testimony that he was not in the full possession of his faculties, except that he said he had fallen asleep, and roused up after he passed the street where he had intended 1o get off and saw the red light at that corner. That he was startled, “as a man will be when awakened,” asked the conductor if they had passed Webster street, received the conductor’s reply that they had, and were near the barn; thereupon turned, pushed the bell button, turned back, saw the conductor also pressing a bell button, remained seated, waited a reasonable time for the car to come to a stop, and, being thoroughly convinced that it had come to a stop, arose to leave the car; that the conductor, still standing inside the rear exit door, put his hand behind him and opened the door and stepped to one side, and the plaintiff went out on the platform, bidding the conductor, “Good night,” as he passed him, [20]*20and hearing the conductor respond, “Good night.” All this without any suggestion in his testimony that the plaintiff was in any unusual condition as to his mental faculties, or any statement by him that he had been without sleep. Later in the trial, when one of his physicians was upon the stand testifying as his witness to the character and extent of his injuries, the physician ■was asked and stated about having seen the plaintiff twice on the day of the accident and prior thereto, first at about 9 o’clock in the morning and again at about 1:30 in the evening, at the hospital where his wife and daughter were for the purpose of an operation; that when the plaintiff left him he was much elated by having received good news of the patients’ condition, and was in good physical condition. Thereupon the witness was asked by plaintiff’s counsel: “Do you know whether he had been losing sleep' for some nights before ? ” The question meeting with objection, counsel “stated that his reason for wishing to show that, is that it is one of the circumstances surrounding the case, this man’s condition at that time resulting from losing several nights’ sleep on account of the sickness of members of his family, and relevant on the question of his contributory negligence.” The objection was sustained, but the ground of the objection or of the exclusion is not stated in the bill. In view of the time and method of the offer we are not impressed by it. No offer was made to show the physician had been with the plaintiff for the previous days and nights, and knew, or could have known, whether he„had secured a normal amount of sleep. The plaintiff himself, who of all persons was best qualified to give testimony on that subject, had not mentioned it, but, on the contrary, had testified minutely as to what occurred immediately before the accident and had assured the jury that his recollection was vivid. Although the fact of the plaintiff’s mental condition may have been material on the question of the reasonableness of his conduct, we should feel that in the circumstances heretofore related we should not be doing substantial justice to reverse the case by reason of the rejection of this offer, especially as we have no assurance by way of any distinct offer that the witness iñ fact knew anything about the matter. In offering [21]*21evidence from the mouth of his own witness a party is bound to know what the witness can say and to make the offer in such terms that the court has the assurance of the attorney that if permitted to speak the witness will so testify. The rule in cross-examination is, of course, different, because there the counsel cannot be supposed to know what the answer will be.
The result is that the judgment should be affirmed with costs.
Affirmed