Mr. Chief Justice Alvey
delivered the opinion of the Court:
There is but the single question presented on this appeal, whether there was evidence sufficient to require the c'ase to be submitted to the jury for their consideration. We think the case should have been submitted to the jury. Whatever the court may have thought of the weight of the evidence produced by the plaintiff, there was certainly some evidence bearing upon the questions involved, as to all the defendants, which would have justified a rational conclusion as to their liability. And, this being the case, the evidence should have been considered by the jury. Whether there was contributory negligence on the part of the plaintiff in producing the injury complained of was [64]*64not a question of law for the court, but one of fact for the jury, to be determined upon consideration of the whole evidence before them. The liability of the several defendants as charged in the declaration depends upon their connection with the cause of the injury, — whether they had an actual agency in producing that cause. That they may be all jointly liable is unquestionable.
The question of the right of the municipal corporation of the District to construct the sewer, arid of the right to contract for the execution of the work, though to occupy the bed of the public streets, can admit of no doubt. The opening and construction of the sewer in this case was done under and by an express authority of Congress. But this authority did not excuse the municipal government from the duty of exercising due and reasonable care in the execution of the authority conferred by Congress. In the construction of the sewer along or under the public streets of the city, the municipality was bound to erect and maintain suitable railings or other barriers, where a dangerous place existed in such close proximity to the highway or street as plainly to make the way unsafe for travelers, exercising ordinary care and prudence, while traveling on the street cars along said sewer. The question whether a railing or barrier placed along the same is suitable and sufficient to afford safety to passengers on the cars is ordinarily a question of fact for the jury. Norris v. Litchfield, 35 N. H. 271, 69 Am. Dec. 546; Murphy v. Gloucester, 105 Mass. 470; Gillespie v. Newburgh, 54 N. Y. 468; Lyman v. Amherst, 107 Mass. 330. And the fact that the dangerous object which caused the accident was permitted to exist by the municipal authorities contrary to law, or that its existence was a cause which, conjoined with other causes illegally existing, produced the accident, may be evidence to charge the municipal corporation with liability for such accident, although the object in question was not actually in the highway or street. Bieling v. Brooklyn, 120 N. Y. 99, 24 N. E. 389. And whenever a barrier or guard rail is erected along or over an excavation in the street or near thereto, it should be of such a character and placed [65]*65in such position in reference to the use of the street as will afford protection, and not produce a peril to persons passing on the way; and this is a question for the jury. The obstruction here, it appears, consisted of a post with a projecting plank attached, which was too near the line of the running cars on the street.
The principle is well established that where an independent contractor, in performing his contract with the municipal corporation, makes holes or excavations in the street, or places obstructions therein, and by reason of his negligence a traveler is injured, the municipality may be made responsible in the first instance, or jointly with such contractor. Robbins v. Chicago, 4 Wall. 657, 678, 18 L. ed. 427, 432. In all such cases, the question is whether the municipal authorities have the right and power to interfere so as to prevent what is being negligently done, and if they have no such power there will be no responsibility of the municipality. Jones v. Waltham, 4 Cush. 299, 50 Am. Dec. 783. But the general liability of the corporation will not be limited by mere implication. Pollard v. Woburn, 104 Mass. 84; Charlock v. Freel, 50 Hun, 395, 3 N. Y. Supp. 226.
It is argued that, as the railroad defendant had nothing to do with the erection of the obstruction in the street or along the sewer that produced the accident, therefore it cannot be held responsible for the consequences of the accident. But this argument puts out of view the fact that the railroad company must be taken to have known of the existence of the obstruction and the peril created thereby to its passengers who were allowed to ride on the running or foot board of its cars. The testimony shows that it was carrying, at the time of the accident, several passengers beside the plaintiff, who were allowed to ride on the foot board of the car, and that the plaintiff was not the only one of these passengers who was struck or brought in collision with the obstruction that produced the accident to the plaintiff. The testimony of the plaintiff is quite clear upon this subject. He admits that he knew of the existence of the erection of the obstructive object along the sewer on the side of the railroad, but he had only noticed it from a distance, and did not know of the dangerous proximity in which it stood to the road. He [66]*66says in his testimony, that on the morning of the accident, desiring to take the car going in a westerly direction, he “went to the corner of Second and E street, southeast, that there were several gentlemen there when the car was approaching, and he got on with them; that the car was going west; that he does not recollect that the car stopped, bnt it checked up he knows, and they all stepped up; that he supposes there were a half dozen standing there; that he did not know any of the persons, — they were all strangers to him; * * * that at the time he got on the car it was pretty crowded inside and out with passengers, and all through the aisles; that it took but a very short time from where he got on the car to get down to where the accident occurred ; that, as near as he can recollect, it was probably over 100 yards; that the street from where he got on the car to the place where the accident happened is something on a down grade going west; that he was standing with his hands hold of the rail and had the ticket between his fingers, and he did not know anything at all — did not see the place — but was looking right inside of the car, and the first thing he knew, something caught him right in the back of his overcoat, that he has here now, and just twisted him right off, and it was in the twinkling of an eye afterwards that it was all over; that there were a lot of spikes driven in a derrick that went down to the bottom, and one of them caught his coat and broke the fall some, but that gave way and he went down, and when he fell, he fell right on his face in a large puddle of mud and water at the bottom of it; that after he was struck in the back he became unconscious and did not know anything hardly until he got up in the Providence hospital. That he does not know who picked him up, but heard it was some sailors, four of whom were in the car, hut he did not know them at all. That when he got on the car at Second and E street he was standing on the north side of the car on the running board, probably nearer the rear.” He was asked how fast the car was going when he got on, and he replied, 3 or é
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Chief Justice Alvey
delivered the opinion of the Court:
There is but the single question presented on this appeal, whether there was evidence sufficient to require the c'ase to be submitted to the jury for their consideration. We think the case should have been submitted to the jury. Whatever the court may have thought of the weight of the evidence produced by the plaintiff, there was certainly some evidence bearing upon the questions involved, as to all the defendants, which would have justified a rational conclusion as to their liability. And, this being the case, the evidence should have been considered by the jury. Whether there was contributory negligence on the part of the plaintiff in producing the injury complained of was [64]*64not a question of law for the court, but one of fact for the jury, to be determined upon consideration of the whole evidence before them. The liability of the several defendants as charged in the declaration depends upon their connection with the cause of the injury, — whether they had an actual agency in producing that cause. That they may be all jointly liable is unquestionable.
The question of the right of the municipal corporation of the District to construct the sewer, arid of the right to contract for the execution of the work, though to occupy the bed of the public streets, can admit of no doubt. The opening and construction of the sewer in this case was done under and by an express authority of Congress. But this authority did not excuse the municipal government from the duty of exercising due and reasonable care in the execution of the authority conferred by Congress. In the construction of the sewer along or under the public streets of the city, the municipality was bound to erect and maintain suitable railings or other barriers, where a dangerous place existed in such close proximity to the highway or street as plainly to make the way unsafe for travelers, exercising ordinary care and prudence, while traveling on the street cars along said sewer. The question whether a railing or barrier placed along the same is suitable and sufficient to afford safety to passengers on the cars is ordinarily a question of fact for the jury. Norris v. Litchfield, 35 N. H. 271, 69 Am. Dec. 546; Murphy v. Gloucester, 105 Mass. 470; Gillespie v. Newburgh, 54 N. Y. 468; Lyman v. Amherst, 107 Mass. 330. And the fact that the dangerous object which caused the accident was permitted to exist by the municipal authorities contrary to law, or that its existence was a cause which, conjoined with other causes illegally existing, produced the accident, may be evidence to charge the municipal corporation with liability for such accident, although the object in question was not actually in the highway or street. Bieling v. Brooklyn, 120 N. Y. 99, 24 N. E. 389. And whenever a barrier or guard rail is erected along or over an excavation in the street or near thereto, it should be of such a character and placed [65]*65in such position in reference to the use of the street as will afford protection, and not produce a peril to persons passing on the way; and this is a question for the jury. The obstruction here, it appears, consisted of a post with a projecting plank attached, which was too near the line of the running cars on the street.
The principle is well established that where an independent contractor, in performing his contract with the municipal corporation, makes holes or excavations in the street, or places obstructions therein, and by reason of his negligence a traveler is injured, the municipality may be made responsible in the first instance, or jointly with such contractor. Robbins v. Chicago, 4 Wall. 657, 678, 18 L. ed. 427, 432. In all such cases, the question is whether the municipal authorities have the right and power to interfere so as to prevent what is being negligently done, and if they have no such power there will be no responsibility of the municipality. Jones v. Waltham, 4 Cush. 299, 50 Am. Dec. 783. But the general liability of the corporation will not be limited by mere implication. Pollard v. Woburn, 104 Mass. 84; Charlock v. Freel, 50 Hun, 395, 3 N. Y. Supp. 226.
It is argued that, as the railroad defendant had nothing to do with the erection of the obstruction in the street or along the sewer that produced the accident, therefore it cannot be held responsible for the consequences of the accident. But this argument puts out of view the fact that the railroad company must be taken to have known of the existence of the obstruction and the peril created thereby to its passengers who were allowed to ride on the running or foot board of its cars. The testimony shows that it was carrying, at the time of the accident, several passengers beside the plaintiff, who were allowed to ride on the foot board of the car, and that the plaintiff was not the only one of these passengers who was struck or brought in collision with the obstruction that produced the accident to the plaintiff. The testimony of the plaintiff is quite clear upon this subject. He admits that he knew of the existence of the erection of the obstructive object along the sewer on the side of the railroad, but he had only noticed it from a distance, and did not know of the dangerous proximity in which it stood to the road. He [66]*66says in his testimony, that on the morning of the accident, desiring to take the car going in a westerly direction, he “went to the corner of Second and E street, southeast, that there were several gentlemen there when the car was approaching, and he got on with them; that the car was going west; that he does not recollect that the car stopped, bnt it checked up he knows, and they all stepped up; that he supposes there were a half dozen standing there; that he did not know any of the persons, — they were all strangers to him; * * * that at the time he got on the car it was pretty crowded inside and out with passengers, and all through the aisles; that it took but a very short time from where he got on the car to get down to where the accident occurred ; that, as near as he can recollect, it was probably over 100 yards; that the street from where he got on the car to the place where the accident happened is something on a down grade going west; that he was standing with his hands hold of the rail and had the ticket between his fingers, and he did not know anything at all — did not see the place — but was looking right inside of the car, and the first thing he knew, something caught him right in the back of his overcoat, that he has here now, and just twisted him right off, and it was in the twinkling of an eye afterwards that it was all over; that there were a lot of spikes driven in a derrick that went down to the bottom, and one of them caught his coat and broke the fall some, but that gave way and he went down, and when he fell, he fell right on his face in a large puddle of mud and water at the bottom of it; that after he was struck in the back he became unconscious and did not know anything hardly until he got up in the Providence hospital. That he does not know who picked him up, but heard it was some sailors, four of whom were in the car, hut he did not know them at all. That when he got on the car at Second and E street he was standing on the north side of the car on the running board, probably nearer the rear.” He was asked how fast the car was going when he got on, and he replied, 3 or é miles an hour; and he also stated that he thought the car was moving at the rate of 9 or 10 miles per hour at the time of the accident, though other witnesses thought that it was not going so fast. All the witnesses concur [67]*67in stating that there were several passengers standing and riding on the running board beside the plaintiff at the time of the accident, and they all testify to the fact that the plaintiff was struck and knocked off the car by the collision with the post or other obstruction on the side of the sewer in close proximity to the running cars; and that there were other passengers on the running board also struck by the same obstruction, though not knocked from the car. The fact appearing to the plaintiff that other passengers were allowed to ride on the foot board was some assurance to him that it could be occupied with safety, or, at any rate, that there was no special risk in being so carried.
The railroad defendant was bound to use all needful care to carry its passengers safely, including the plaintiff, and to avoid exposing them to unusual risks; and with knowledge of the position of the erection in near proximity of its road, and to the cars moving thereon, which knocked off the plaintiff, it should not have allowed the plaintiff, or any other passenger, to ride on the foot board of the car, and thus to incur the peril of being struck and knocked off. It is true, the plaintiff, by taking a position and riding on the running or foot board of the ear, incurred the ordinary risk of such a position, which was greater than that of being inside the car, but to ride on the foot board of a street car does not constitute negligence in law, which would justify the court in directing the jury that such act of itself was sufficient to convict the plaintiff of contributory negligence, and to defeat his right to recover for the injuries suffered by him. Under the facts of this case, we do not think the court could declare,.as matter of law, that the plaintiff was chargeable with the special knowledge of the particular risk or danger in doing what he saw that others were allowed to do, and which he might reasonably suppose was being done with the knowledge and consent of those in charge of the cars. We think the testimony of the plaintiff himself, with that of the other witnesses examined on his behalf, presented such state of case as made it proper that it should have been submitted to the jury. The erection on or along the edge of the sewer, and which caused the injury, had been placed there as a barrier, and we may well presume was placed there by the [68]*68parties constructing the sewer; and, from the length of time that it apj>ears to have existed, the municipal authorities would be chargeable with notice of its existence and of the dangerous character thereof.
We must reverse the judgment and remand the cause for new trial; and it is so ordered.
Judgment reversed and cause remanded.