86 Miss. 584 | Miss. | 1905
delivered the opinion of the court.
This was a suit by appellant (plaintiff below) for the recovery of damages for personal injui'ies alleged to have been sustained through the negligence of appellee while be was its passenger, said injuries being caused by appellant being struck by,
Able counsel for appellant in their brief say that the only question presented for decision is whether the case showed that appellant was guilty of such contributory negligence as to warrant the court in granting the peremptory instruction.
Of course, it is an elementary principle that, in actions for injuries through negligence, the plaintiff cannot recover if his own negiigence or want of ordinary care produced, or even contributed as the proximate cause to produce, the injury complained of; and if the facts shown by the whole testimony for the plaintiff, and all just inferences from-those facts, make this clear, then, in such a state of evidence, although the defendant introduce no evidence in support of his plea of contributory negiigence, it is not only within the power, but it is the duty, of the court to decide upon the legal effect of the evidence, and to instruct the jury, as a matter of law, that the plaintiff cannot maintain this action. 'When the facts are not disputed and the inferences or conclusions resulting therefrom are indisputable, the question of contributory negiigence is one of law for the court to determine, and not one of fact for the jury. Railroad Co. v. McGowan, 62 Miss., 682 (52 Am. St. Rep., 205); Railroad Co. v. Alexander, 62 Miss., 496; McMurtry v. Railroad Co., 67 Miss., 601 (7 South. Rep., 401); Swan v. Ins. Co., 52 Miss., 704; Todd v. Railroad Co., 80 Am. Dec., 49.
Mow, the evidence in this case establishes, beyond cavil, controversy, or dispute, that, on the night of the accident, plaintiff and his wife took passage and obtained seats on the car at Livingston Park, returning to their home, near the insane asylum; that, when the car stopped at Spengler’s corner, plaintiff, ac
While this is a ease of first impression in Mississippi — this court never having decided the questions here presented for determination — the courts of last resort of other jurisdictions have settled the principles here involved. As held by numerous authorities, it is too obvious for proof, and therefore requires none to establish the proposition, that it is manifestly more dangerous to be on the running board of a car than to be on the seat — more dangerous even than to he on the platform of the car. Counsel for appellant concede this, and, with their usual frankness, also concede that there was no absolute necessity for appellant being on the running hoard at the time he was injured, and that in placing himself on the running board, even for the purpose of passing from one part of the car to another, he assumed the risks of the ordinary -perils of that position, and he will be held to have anticipated the dangers probably incident thereto.
Clark, in his Accident law (2d ed.) Street Railways, sec. 37, “Riding on Running Boards,” uses this language: “Although riding on the running hoard has apparently been attended with rather more danger than riding on the platform or steps, it is nevertheless held that riding in this position is not of itself lack of due care, as a matter of law, and the rule is the same whether the car is a horse car, an electric car, or stage sleigh. . . . Whether or not the car is crowded is perhaps the most important consideration in determining the question of the passenger’s due care. Where the car is crowded, and the passenger rides on the running board without objection from those in charge of the car, he is held not to- he guilty of lack of due care, as a matter of law; while, if there is plenty of room} inside, it has been held that the passenger assumes all the risks arising from the position'which he chooses to take, and in any event a passenger riding on the running hoard assumes the risk
The undisputed evidence in this case is that there “was plenty of room inside,” but appellant voluntarily chose to leave his seat, and not only to take his position on the platform, but waited there until the car was running rapidly; and then, instead of returning by way of the aisle, which would have been perfectly safe, he chooses the more dangerous route, on the side where he knew these posts were, etc. He thereby assumed all the risks arising from the position which he chose to take. In Thane v. Scranton Traction Co., 191 Pa., 249 (43 Atl., 136; 71 Am. St. Rep., 767), the court says: “The distinction sought to be made between an injury from ordinary risks and from a collision the result of the negligence of the carrier, is not sound. What the passenger took upon himself was the risk of his position from any cause.” Beach, in his admirable work on Contributory Negligence (2d ed.), see. 294, makes the question as to whether or not walking along the side steps or running board of an open car from the rear platform to a seat is contributory negligence depend on whether there was any other means of passing from one end of the car to another — that is, whether or not there was an aisle. Indeed, some of the authorities go to the extent of specifically holding (which it is not necessary to hold in this case) not only that it is the absolute duty of a passenger to go on the inside of a ear, if there is any room there-, but. that in the use of cars of steam railroads the rule admits of no exception which does not rest on necessity, and that, if he does not observe this, he takes all of the risks of his location elsewhere. Bumbear v. Traction Co., 198 Pa., 200 (47 Atl., 961), and cases cited.
We do not think that the simple fact that this trolley pole with which plaintiff came in contact was slightly nearer the track than two others just on each side of it proves, or even tends to prove, that said pole was dangerously near the track, or that .this shows any gross negligence on the part of defendant. The
ISTor do we think that the fact that the guard rail or bar was up, which appellant knew was ordinarily kept down along the side next to the posts to protect from the posts, was an invitation to him to expose himself to the danger from which the bar, when down,’ was intended to protect. If he understood it to be such an invitation, he should not have accepted it. He knew the posts were there. He knew, if from nothing else, at least from the customary use of the bar, that they were dangerous to any one on the running board, and, to use his own language, “had heard'of somebody being knocked off by posts previous to that, somewhere.” He was guilty of negligence in exposing himself, without cause and without the procurement of appellee, to an obvious danger, and was none the less guilty of such negligence simply because the servants of appellee did not fence him off from it. In the case of Indianapolis R. R. v. Rutherford (Ind.), 92 Am. Dec., 336, the court held that the duty of the carrier does not extend to barricading its cars and imprisoning its passengers so as to prevent them by their recklessness and folly from voluntarily exposing themselves to needless perils or obvious dangers. Such a doctrine would give power to railway officials to so restrain the liberty of their passengers in every respect that they could not by any act of their own put themselves in unnecessary danger, for such a power must necessarily exist if the duty to exercise it exists. The obligation to-answer in damages cannot be separated from the authority to-do what is necessary to avoid liability. Carriers have not, and ought not to have, any such powers, and hence no liability results. Their passengers are not their slaves. Though passengers, they are nevertheless free men. Sharkey v. Street Railway Co.,
We deem the second assignment of error also untenable.
Affirmed.