Anderson v. City Railway Co.

71 P. 659 | Or. | 1903

Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

1. It is urged that the request for an instruction directing a verdict for defendant should have been given, because the evidence shows no breach of any duty that the defendant owed to plaintiff. Negligence is generally a question for the jury. The cases in which the courts will assume to decide it, and withdraw the case from the jury or direct a verdict, are generally those in which reasonable minds cannot differ as to the conclusions to be drawn from the facts. Where the facts are in conflict, or where they are undisputed, but honest minds might reasonably differ as to the conclusions to be deduced therefrom, the case must go to the jury. Now, it is admitted that the defendant constructed its tracks so near the superstructure of the bridge as to leave a space of only eighteen inches between the framework thereof and the outer edge of the footboard of its open cars, upon which passengers were permitted to ride, and there.is evidence tending to show that the car was moving at an unusual and unlawful rate of speed, and that no warning was given to the deceased of the approach to the bridge, or of any danger to be apprehended therefrom.. The question, then, is whether, under such circumstances, the court can say, as a matter of law, that the defendant was not negligent. The authorities all agree that it is negligence for a street railway company to permit permanent obstructions to stand so near its tracks that passengers getting off or on its cars, or riding thereon, are in danger of coming in contact therewith, and it is generally considered a question for the jury as to whether a given obstruction is so situated: Walsh v. Oregon Ry. & Nav. Co. 10 Or. 250; Johnston v. Oregon S. L. Ry. Co. 23 Or. 94 (31 Pac. 283); Elliott v. Newport S. R. Co. 18 R. I. 707 (28 Atl. 338, 31 Atl. 694, 23 L. R. A. 208); Whalen v. Illinois R. & Coal Co. 16 Ill. App. 320; Chicago & Iowa R. Co. v. Russell, 91 Ill. 298 (33 Am. Rep. 54); West Chicago St. R. Co. v. Marks, 82 Ill. App. 185 (affirmed in 182 Ill. 15, 55 N. E. 67); Geitz v. Milwaukee City R. Co. 72 Wis. 307 (39 N. W. 866); City Ry. Co. v. Lee, 50 N. J. Law, 435 (14 Atl. 883, 7 Am. St. Rep. 798); Topeka City Ry. Co. v. Higgs, 38 Kan. 375 (16 Pac. 667, 5 Am. St. Rep. 754); Dahlberg v. Minneapolis St. Ry. Co. 32 Minn. 404 (21 N. W. 545, 50 Am. Rep. 585, and note).

2. It cannot be said that the deceased was guilty of contributory negligence in riding on the footboard of the car: Lapointe v. Middlesex R. 144 Mass. 18 (10 N. E. 497); Graham v. Manhattan R. Co. 149 N. Y. 336 (43 N. E. 917); Seymour v. Citizens’ Ry. Co. 114 Mo. 266 (21 S. W, 739). He was there by the invitation and consent of the company, and, while he was, perhaps,required to exercise extra care and caution on account of the increased danger attending his position, it was nevertheless the duty of the company to furnish him a reasonably safe place in which to ride, and not expose him to injury from permanent obstructions unreasonably near its tracks.

3. “Where a railroad company,” says the Supreme Court of Illinois, “places its tracks so near an obstruction, which it is necessary for its cars to pass, that its passengers, in getting on and off the cars, and while upon them, are in danger of being injured by contact with such obstruction, it is a fair question for the jury whether the company is or is not guilty of negligence”: North Chicago St. R. Co. v. Williams, 140 Ill. 275 (29 N. E. 672). This doctrine is obviously sound, and the questión of negligence for the jury, where a street railway company invites or’expects passengers to ride on the footboard of its cars, and carries them, at a rapid rate of speed, in close proximity to dangerous obstructions, of which they have no knowledge, without warning them of the risk. A common carrier of passengers'by street cars is required “to exercise the highest degree of’skill and care which may reasonably be expéeted of intelligent and prudent persons engaged in that business, in view of the instrumentalities employed and the dangers naturally to be apprehended”: Booth, St. Ry. Law, § 328. And it is the duty of such a carrier to foresee the possible danger to which passengers riding on the footboards of its cars might be exposed by a slight movement of the body in consequence of the proximity of its tracks to permanent structures, and it is not negligence on the part of a passenger to omit to look out for such structures unless he has reason to anticipate some such danger. He has a right to assume that the company has performed its duty to carry him safely, and that it will not expose him to unnecessary hazard, and to act accordingly: Dickinson v. Port Huron Ry. Co. 53 Mich. 43 (18 N. W. 553). So that, upon the whole, we are of the opinion that the question of negligence was for the jury, and not the court.

4. The fact that the defendant’s road had been operated since 1890, and no accident had occurred from a like cause, is not conclusive evidence of the absence of negligence on its part, either in the construction of the road or the operation of the cars.

5. Nor was the deceased necessarily guilty of contributory negligence because he leaned back while in the act of returning his money to his pocket, or in looking after his friend. Conduct of' that kind on the part of passengers was such as might reasonably be anticipated by the railway company. The eases of Craighead v. Brooklyn City R. Co. 123 N. Y. 391 (25 N. E. 387), and Gilly v. New Orleants City R. Co. 49 La. Ann. 588 (21 South. 850), principally relied upon by the defendant, are in many ways to be distinguished from the case in hand. In the former, the plaintiff was injured in the daytime by a passing car, while going along the footboard of the car upon which he was riding, at a place where car's were passing as often as once every half minute. In the latter, the plaintiff was familiar with the obstruction by which he was injured, had ridden on the cars for six or seven years, and was fully aware of the danger. • '

6. That the instruction requested and refused, to the effect that it was not negligence on the part of the defendant to permit passengers to ride on the footboard of its cars, contains a correct statement of the law, is unquestioned. It is not negligence per se, either on the part of a passenger or a street railway company, that a passenger, reasonably competent to take care of himself, should ride on the platform or footboard of a crowded ear. It is, however, obviously more dangerous to occupy such a position than a seat in the car, and therefore the law imposes upon both the passenger and the railway company the duty of extra caution to prevent injury; and a railway company which accepts a person as a passenger, and permits him so to ride, is bound to carry him with a degree of skill, prudence, and care proportionate to the danger to be apprehended, but it is not negligent in permitting him to do so: Booth, St. Ry. Law, § 341; Sandford v. Hestonville R. Co. 136 Pa. 84 (20 Atl. 799); Craighead v. Brooklyn City R. Co. 123 N. Y. 391 (25 N. E. 387); Gilly v. New Orleans City R. Co. 49 La. Ann. 588 (21 South. 850).

7. It is insisted, however, that the instruction as requested was, in substance, given by the court, in the charge that, if the deceased voluntarily took his place' on the footboard, and by the exercise of reasonable care could have ridden safely, but did not use such care, and on account thereof was injured, the defendant is not liable. A comparison of the instruction refused and the one given will show that they are not the same. They are practically so as to the negligence of the defendant, and the result thereof; but the important part of the requested instruction — that it was not negligence on the part of the company to permit passengers to ride on the footboard of its cars —was refused. The instruction as given was declaratory of the obligation resting on the deceased to look out for himself, and was correct, whether the act of defendant in permitting him to ride on the footboard constituted negligence or not. If it was negligence, but the deceased was also guilty of negligence in projecting himself against the bridge, it would not be liable. If, on the other hand, it was not guilty of negligence in allowing him to ride upon the footboard, and the accident was the result of the negligence of the deceased, the plaintiff could not recover. But if the jury should find that the deceased was not guilty of negligence in leaning back from the car, then the vital question would be, was it negligence in the company to allow him to ride on the footboard? And upon this question the defendant was entitled to have the jury properly instructed as to the law. The error in failing to give the instruction requested was emphasized by the one given, to the effect that, if the accident was the direct result of the overcrowded condition of the ear, defendant would be liable, if deceased was not guilty of contributory negligence. The natural inference from the instructions given would be that the defendant was in some way guilty of negligence in permitting its cars to be so overloaded that passengers were required to stand on the footboard, while, under the law, such an act on the part of the street railway company is not negligence per se as to a passenger who voluntarily boards a crowded car, and assumes to ride on its footboard: Olivier v. Railroad Co. 43 La. Ann. 804 (9 South. 431).

It follows that the judgment of the court below must be reversed, and a new trial ordered. Reversed.