Great Falls & Old Dominion Railroad v. Hill

34 App. D.C. 304, 1910 U.S. App. LEXIS 5808

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 12, 1910
• Docket: No. 2029
• Status: Published

Opinion

Mr. Chief Justice, Shepakd

delivered the opinion of the Court:

1. The first proposition, in regular order, is founded on the exceptions taken to the evidence relating to the frequent custom of passengers to get off the car at the stopping place, on the left or east side. The ground of the objection was that there was no evidence tending to show that plaintiff, a stranger, was aware of any such custom. The proposition of the appellant may be a sound one in a case where such a custom is set up to assert a right, or justify an act that the party asserting it must, ordinarily, have had knowledge of the custom. But where, as in this case, the purpose of proving such a custom is to show actual notice to the car company of a practice by passengers violative of its rules of caution, and accompanied with probable danger, we think it admissible as tending to sustain the charge of negligence in the failure to provide means to put an end to the practice by maintaining a gate, or some other ■ effective device. District of Columbia v. Armes, 107 U. S. 519-524, 27 L. ed. 618-620, 2 Sup. Ct. Rep. 840; District of Columbia v. Dietrich, 23 App. D. C. 577-582; Illinois C. R. Co. v. Davidson, 22 C. C. A. 306-309, 46 U. S. App. 300, 76 Fed. 517.

The evidence was competent, also, as bearing on the question of plaintiff’s contributory negligence, which was the main issue for the determination of the jury, under the evidence submitted. Illinois C. R. Co. v. Davidson, supra.

2. The first, second, fourteenth, and fifteenth assignment of error have been grouped by the appellant as raising the same question. They are founded on exceptions taken to the refusal of two prayers for instructions submitted by defendant, and to the granting of two submitted by plaintiff.

The first of the two refused prayers of the defendant was to the effect that, as a matter of law, if a safe platform had been provided on the west side of the car track for the use of passengers in getting on and off the car, it was the duty of a passenger to get off on that side, unless otherwise directed by defendant’s employees, and, if plaintiff disregarded this duty, a verdict should be returned for defendant. The second was to the effect that, as a matter of law, the failure to keep a gate or other contrivance closed on the east side of the front car platform was not an implied invitation to plaintiff as a passenger to step from that side, provided there was a safe platform on the other side, maintained for the use of passengers. The second instruction given at the request of the plaintiff was to the effect that, if the defendant stopped its car at a place where it was safe to alight on one side and dangerous on the other, then it was the defendant’s duty to exercise the highest degree of care to prevent plaintiff from falling off on the dangerous side; and if the jury shall find, from all the evidence, that defendant failed to exercise such care, and that such failure was the sole cause of the injury, their verdict should be for the plaintiff. The third instruction given at plaintiff’s request was to the effect that, if plaintiff was a passenger, she had a right to assume that any place where the car was stopped for her to alight would be reasonably safe; and she had a right to regulate her conduct on that assumption, and the degre’e of care she was bound to exercise was only such as a person of oi’dinary care, acting under such assumption, would have exercised under the circumstances of this case.

There is some conflict of authority with respect to the proposition contended for by appellant, as applied in the case of steam railways which stop at regular stations.' However this may be in the case of such railways under ordinary conditions, there appears to be no good reason for applying such a rule in the case of the ordinary electric railways, which run along the- streets of cities, and adjacent bridges and roadways, for the accomodation of persons traveling short distances. Ordinarily such cars have no stations, and stop in streets and public ways to answer the convenience of passengers. Whilst they may, in instances where .the track is permitted to be built above the surface of such ways, maintain platforms on one side, at suitable places, it is going too far to say that the entire duty of such carrier is discharged by merely making such provision. It is the duty of a carrier, as stated in another instruction given at the request of plaintiff, to exercise the highest practicable degree of care for the safety of its passengers, not only in the matter of carriage, but also in respect of means for getting on and off its cars. Washington & G. R. Co. v. Harmon (Washington & G. R. Co. v. Tobriner) 147 U. S. 571—580, 37 L. ed. 284—288, 13 Sup. Ct. Rep. 557; Warner v. Baltimore & O. R. Co. 168 U. S. 339-348, 42 L. ed. 491-497, 18 Sup. Ct. Rep. 68; Baltimore & O. R. Co. v. State, 60 Md. 449—463; Lehman v. Louisiana Western R. Co. 37 La. Ann. 705—707; Missouri P. R. Co. v. Wortham, 73 Tex. 25-27, 3 L.R.A. 368, 10 S. W. 741; Gulf, C. & S. F. R. Co. v. Gatewood, 79 Tex. 89, 10 L.R.A. 419, 14 S. W. 913; Louisville, N. A. & C. R. Co. v. Lucas, 119 Ind. 583—588, 6 L.R.A. 193, 21 N. E. 968; Boyce v. Manhattan R. Co. 118 N. Y. 314-318, 23 N. E. 304; McDonald v. Illinois C. R. Co. 88 Iowa, 345-350, 55 N. W. 102; Illinois C. R. Co. v. Davidson, 22 C. C. A. 306-309, 46 U. S. App. 300, 76 Fed. 517.

It is a matter of common knowledge that passengers on street cars frequently get off on one side as well as another, unless one way be obstructed by closed gates or doors; and the evidence showed that such practice had prevailed at the- stopping place where plaintiff received her injuries. Charged with this knowledge, and knowing that the east side was unsafe, the defendant recognized its duty to its passengers,- at that point, in the strict rule that passengers were to be made to get off 'on the west side only, to which rule its conductor testified. This duty was not discharged by making such rule, merely, but extended to reasonable and effective means for its enforcement by barring the way or the giving of timely warning. As it is certain that there was no bar or closed gate on the east side of the car to prevent egress, and as the plaintiff’s evidence tended to show that the western exit was obstructed by the motorman and his acquaintance, and that the motorman neither obstructed the eastern exit, nor warned plaintiff in time against using it, it was proper to submit the question of negligence to the jury, as' was done in the instructions given on behalf of the plaintiff, the last one of which, however, related rather to the question of contributory negligence.

Two other refused instructions of the defendant, which furnished the grounds of the third and fourth assignments of error, require no separate consideration, for, as stated in appellant’s brief, “the proposition involved. in these prayers is a corrollary of the proposition involved in the second and third prayers; namely, that if a suitable and adequate platform had been provided on the west side, the appellee was bound to use that platform, provided she had knowledge that such platform was in existence, or could and would have known of its existence had she exercised ordinary care and prudence.”

3. The fifth assignment of error is on the refusal of defendant’s seventh special prayer that the jury be instructed, as a matter of law, that if they believed that plaintiff, in alighting from the east side of the car, saw, or ought to have seen, or by the exercise of ordinary care, could have seen, that there was no platform on that side, but only an open roadway some distance down, and notwithstanding attempted to alight, then she did so at her own risk, and the verdict should be for the defendant. There was no error in refusing this instruction. In the light of the evidence in behalf of the plaintiff, heretofore recited, it cannot be declared, as a matter of law, that she was guilty of contributory negligence. It was a question of fact for the determination of the jury. Mosheuvel v. District of Columbia, 191 U. S. 247—265, 48 L. ed. 170—177, 24 Sup. Ct. Rep. 57; Indiana Union Traction Co. v. Jacobs, 167 Ind. 85—90, 78 N. E. 325; Boyce v. Manhattan R. Co. supra; Missouri P. R. Co. v. Long, 81 Tex. 253—257, 26 Am. St. Rep. 811, 16 S. W. 1016.

In submitting tbe question of contributory negligence the general charge covers the ground completely, and no exception was taken thereto.

4. The sixth, tenth, eleventh, and twelfth assignments of error relate to the admission of certain testimony as to the defective eyesight of the plaintiff, and the refusal of defendant’s eighth special instruction founded thereon. That instruction is as follows: “8. The jury are instructed as a matter of law that, in considering whether or not the defendant in this case was guilty of negligence, they should eliminate entirely any evidence in this case tending to show that the plaintiff’s eyesight was defective, or that she was near sighted; in other words, in considering the duty of the defendant in the premises, the plaintiff must be considered a normal person with normal eyesight, unless the jury find from the evidence that the defect in her eyesight, if any, was brought to the knowledge of the defendant or its agents.”

As the exception taken to the evidence has been practically waived, it is sufficient to say that it showed that plaintiff was fifty-nine years old, was nearsighted and wore glasses. It does not appear that her sight was worse than that ordinarily of ■persons of her age, who being nearsighted, wear glasses to correct the defect.

It was not pretended that she was so nearly blind as to require a higher degree of care' than other passengers, by a carrier having knowledge of the defect. A carrier must be presumed to know, however, that persons of all ages and conditions, strangers as well as those familiar with the surroundings, nearsighted people wearing glasses, as well as those of perfect sight, are frequently among its passengers, and it is required to provide appliances, ways, and means, adapted under the circumstances, to the safe transportation of all such persons. Metropolitan R. Co. v. Falvey, 5 App. D. C. 176-180; Illinois C. R. Co. v. Davidson, 22 C. C. A. 306—309, 46 U. S. App. 300, 76 Fed. 517. This consideration, however, is unimportant, for, as we have said, the testimony was not introduced in support of a claim that defendant owed plaintiff, on the occasion in question, a higher degree of care than was due other passengers. No instruction to that end was asked by the plaintiff, or given by the court in the general charge. The evidence had relation to the question of the plaintiff’s contributory negligence, which was the important issue in the case. In determining whether she exercised ordinary and reasonable care under all the circumstances, it was proper that the jury should be informed in respect of all the conditions surrounding her at the time. In the absence of any instruction on the point, it is conceivable, even, that they might have thought it her duty to exercise more care than would ordinarly be expected of one possessed of keener vision. We find no error in -the refusal of the instruction asked by defendant.

5. The thirteenth assignment of error relates to the exception taken to the first special instruction given at plaintiff’s request, which is as follows:

“The jury are instructed that it was the duty of the defendant company to exercise the highest degree of care and caution to provide a reasonably safe place at its regular stopping point or station at the south end of the aqueduct bridge for its passengers to alight from its cars; and that it was also the duty of the defendant company to exercise a like degree of care to provide a safe means of egress from its cars at said point, so that the passengers alighting from its cars at such a point or station would not alight in a dangerous or unsafe place; and if the jury find, from the evidence in the case, that the defendant company failed to exercise such care, and that such failure was the immediate and direct cause of the injury to the plaintiff, then their verdict should be for the plaintiff.”

It is a well-settled rule of the law of carriers that they must, in respect of their passengers, exercise the highest degree of reasonable care in providing safe means of transportation. Stokes v. Saltonstall, 13 Pet. 181-191, 10 L. ed. 115-121; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291-295, 23 L. ed. 898, 899; The City of Panama, 101 U. S. 453—462, 25 L. ed. 1061—1064; Gleeson v. Virginia Midland. R. Co. 140 U. S. 435-443, 35 L. ed. 458-463, 11 Sup. Ct. Rep. 859. And this rule, as heretofore stated, extends to means for the safe egress of passengers, under ordinary conditions. The rule was- correctly applied in the instruction excepted to.

6. The sixteenth, and last, assignment of error is addressed to language of the court in the general charge, which, it is complained, instructed the .jury that proof of the injury hy plaintiff made a prima facie case of negligence, which shifted the burden of proof to the defendant In the beginning of his charge the court stated the law relating to the burden of proof which is on the plaintiff in such cases, and- then added the following: “Now the law goes a- step further, and it says that where a plaintiff has been a passenger upon a railway cars, meaning of course street car- likewise, and an accident happens to the plaintiff whilst being a passenger, that she meets the requirements of the law as to the weight of the testimony by showing that she was a passenger on the train, and that whilst such a passenger she was injured by the defendant company. Now the law says that, when that is done, the plaintiff has met the requirements of the law, and-the burden then shifts or changes to the defendant to show that the-accident did not happen by reason of the negligence of the defendant, or,' if the defendant was negligent, still if the plaintiff was likewise negligent and the plaintiff’s negligence contributed'to her injury, then the law says that she would not he able to recover. So that in this case, whilst the burden is upon the plaintiff to show by a fair weight of the testimony that she was injured hy the defendant company, that burden is met for a prima facie case by showing that she was injured whilst she was a passenger upon that train. Therefore, she has sustained the burden for a prima facie right of recovery, then it changes and the defendant company must then .rebut that prima faciecase, by showing that it was not through their negligence, or, if they were negligent, that the plaintiff was also negligent, and that, the plaintiff’s negligence having contributed to the injury, she would not be entitled to recover.”

The jury were then charged that the burden of showing contributory negligence was on the defendant, and the law applicable thereto was given.

It is a settled rule of law that when an injury occurs to a passenger through some accident happening as the result of defective cars and appliances, or defective and obstructed tracks, or through derailments and collisions, or, in other words, accidents which in the usual and ordinary course of things would not happen with proper care, a prima facie case of negligence on the part of the carrier is made out by the proof of the injury. Negligence is inferred from the happening of the accident, and it is then incumbent upon the carrier, assumed to have information in respect of the cause that is inaccessible to the passenger, to furnish an explanation of the accident, consistent with its obligation to exercise the highest degree of care. The rule is founded in reason and sound public policy. Stokes v. Salton-stall, 13 Pet. 181-192, 10 L. ed. 115-122; Gleeson v. Virginia Midland R. Co. 140 U. S. 435, 35 L. ed. 458, 11 Sup. Ct. Rep. 859; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 35 L. ed. 270, 11 Sup. Ct. Rep. 653; City & Suburban R. Co. v. Svedborg, 20 App. D. C. 543—549.

On the other hand, where the accident is not of the foregoing character, but one resulting from some unusual risk taken by the passenger, it has been said that the rule does not apply. Weaver v. Baltimore & O. R. Co. 3 App. D. C. 436—453; Harbison v. Metropolitan R. Co. 9 App. D. C. 60—69. In Weaver’s Case, the passenger, a railway mail agent, protruded his head from the opening near the middle of the car in the course of securing a mail bag, and was killed with contact with the side post of a bridge over which the car was passing at the time. In Iiarbison s Case, the plaintiff was riding upon the foot board of a crowded summer car, and so protruded a portion of his body that it was struck by a car coming on the adjacent track. It was held in each case that the mere fact of injury, under such circumstances, did not make a prima facie case; some other evidence of negligence was necessary. In another case it has been held that a prima facie case was made out where, the car having stopped to let off passengers, the plaintiff was thrown down by the sudden starting of the car as she was in the act of stepping off. City & Suburban R. Co. v. Svedborg, supra. See also Kehan v. Washington R. & Electric Co. 28 App. D. C. 108.

What was said in. Svedborg’s Case was not necessary to its determination, and the Supreme Court of the United States, in affirming the judgment, declined to discuss the point, because it said that, if the law was erroneously declared,—and this it neither affirmed or denied,—it could not have prejudiced the defendant. City & Suburban R. Co. v. Svedborg, 194 U. S. 201-204, 48 L. ed. 935-937, 24 Sup. Ct. Rep. 656. In that case, as in this, the material question was whether the plaintiff had been guilty of contributory negligence. The plaintiff in this case did not rest with proof of the injury merely, but assumed the proof of negligence as a necessary affirmative fact. She asked no instruction in regard to a prima facie case. Assuming her evidence to be true, as the jury found, there could be no other reasonable conclusion than that the defendant had failed to exercise proper care in obstructing the unsafe exit from the car. What the court said, in the extract above quoted, was, as was also the case in the Svedborg opinion, rather by way of introduction to the declaration that, as regards the contributory negligence of the plaintiff, the burden of proof was upon the defendant.

Afterward the court proceeded at length in the general charge, in the course of which it gave the several instructions asked by the plaintiff, in which no error has been found, and stated the law relating to contributory negligence in applicable and unobjectionable terms. We think it unnecessary to determine whether the statement in regard to a prima facie case, in application to the facts in this case, was erroneous or not.

Bearing in mind the evidence on both sides relating to the question of the negligence in fact, of the defendant, and the final submission of that issue to the jury, we think, as did the Supreme Court in Svedborg’s Case, that the error, if error it was, could not have worked prejudice to the defendant. As before suggested, the substantial question in the case was whether the accident was contributed to by the recklessness or want of ordinary care of the plaintiff.

Nor the reasons given, the judgment will be affirmed, with costs. Affirmed. .

Mr. Justice Van Orsdel dissenting.