Washington Railway & Electric Co. v. Kramer

44 App. D.C. 154b

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 29, 1915
• Docket: No. 2813
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

Many times have we ruled that it is not contributory negligence per se for a passenger to ride upon the platform or running board of a street railway car when in so doing he is following a common practice acquiesced in by the railway company. Metropolitan R. Co. v. Snashall, 3 App. D. C. 420; Harbison v. Metropolitan R. Co. 9 App. D. C. 60, 9 Am. Neg. Cas. 168; Brown v. Washington & G. R. Co. 11 App. D. C. 37; Brightwood R. Co. v. Carter, 12 App. D. C. 155; Washington, A. & Mt. V. R. Co. v. Chapman, 26 App. D. C. 472, 6 Ann. Cas. 721; Capital Traction Co. v. Brown, 29 App. D. C. 473, 12 L.R.A. (N.S.) 831. We have further ruled that while such a passenger assumes the additional risks incident to his more exposed position, when the cars are being operated in the usual and customary manner, the railway company will be liable for any injury which befalls the passenger in such a position as the result of its negligence, provided of course that he was exercising due care at the time. The reason for this ruling is plain. The railway company, being responsible for the practice of riding on the platform or steps of its cars, must have due regard for the safety of such passengers as follow that practice. Hart v. Capital Traction Co. 35 App. D. C. 502.

But the facts in the present case differ very materially from the facts in any case heretofore considered by this court. The plaintiff, according to his own testimony, was occupying a position of safety- Failing to attract the attention of the conductor or motorman, and therefore knowing that they would be in ignorance of what he was about to do, he descended to the running board of a car that, according to his evidence, was moving at the rate of 25 or 30 miles an hour. And when he did this the car was in the middle of the block at the end of which he expected it to be stopped. Notwithstanding that another passenger sounded the stopping bell, plaintiff passed the first stanchion and remained upon the running board. It is clear from the evidence that there was ample room for him inside the car, and yet he chose to remain where he was. There is no evidence that the motorman saw him, and, therefore, the sole question to be determined is whether it can be said that plaintiff was guilty of contributory negligence. We are constrained to answer this question in the affirmative. He must have known, as every person who rides on a street car is bound to know, that considerable vibration attends the running of a car at such a high rate of speed, and he further was bound to know that the bringing of a car running at such a high rate of speed to a sudden stop would inevitably result in jerking and jolting. Jennings v. Union Traction Co. 206 Pa. 31, 55 Atl. 765; Baltimore Consol. R. Co. v. Foreman, 91 Md. 226, 51 Atl. 83. Yet, knowing all this, he deliberately left a place of security and exposed himself to certain danger. The lack of means on the rear seat for signaling a stop did not justify the plaintiff in thus exposing himself. He was not without redress for any failure of the railway company to fulfil its implied obligation to stop the car at the proper time and place. Had the car been running at a normal and reasonable rate of speed the case would be different. Coleman v. Second Ave. R. Co. 114 N. Y. 612, 21 N. E. 1061.

It follows that the first instruction requested by the defendant should have been given. The judgment, therefore, must be reversed, with costs, and the cause remanded for a new trial.

Reversed and remanded.