47 App. D.C. 152 | D.C. Cir. | 1917
delivered the opinion of the court:
The appellant, Capital Traction Company, defendant below, complains of a judgment rendered against it in an action bottomed on negligence resulting in an injury , to the appellee, Henry F. Copland, one of its passengers, while he was riding-on one of appellant’s cars along- Calvert street, near the westerly end of the Rock creek bridge in this city. During a conversation with a fellow passenger, the plaintiff inadvertently made a gesture which carried his hand through the bars of an open window at his elbow and into contact with the collar of a pole standing near the track. The collar was 8 or 8% inches from the car. He averred that under the circumstances the defendant was negligent in maintaining the pole so near to its passing cars without taking proper precautions to protect passengers against injury from it; while, on the other hand, the street car company claimed that it was not negligent and that plaintiff was guilty of contributory negligence.
The first point raised by the appellant is that the court erred in admitting over its objection certain testimony with respect to prior accidents. These accidents resulted from the hands or arms of passengers coming into contact with poles located similarly to the one which injured plaintiff. This testimony was received for the sole purpose of bringing home to the company notice that there were poles so near its passing cars as to endanger the safety of passengers. The polo that caused one of the accidents was next to the one which injured plaintiff, while the pole producing the other accident was about three blocks away. In each case the pole stood about (the same distance from the cars. Appellant had knowledge of these accidents, suit having been brought against it by one of the injured parties. We think the evidence was competent. The supreme court of Minnesota said of testimony like this: “It was, of course, not com-
Appellant contends that, since the declaration in one of the prior accident cases Avas admitted as evidence in the present case, it should have been allowed to introdrice the entire record in that case, since, as appellant argues, it Avould show' that the jury in the former case had returned a verdict for the defendant, and hence that appellant Avas not negligent in that cast;; but, as avc have said, the declaration Avas not received for the purpose of establishing negligence, but for the sole purpose of showing notice. The complete record Avas therefore immaterial.
The next question- presented for our consideration is as to Avhethcr or not plaintiff established a cause of action. Appellant says it did not, and predicates its contention upon the theory that the evidence showed without dispute that the plaintiff Avas guilty of contributory negligence. It is said that the AvindoAv through Avhicli plaintiff pushed his hand against the polo Avas guarded by iron bars 3 inches apart, and that his hand must have passed between them; that these bars Avarned passengers
There is nothing in Chapman v. Capital Traction Co. 37 App. D. C. 479-490, which conflicts with tiffs. In fact that case is quite in harmony with wlrnt vre have said. Tlic accident happened under circumstances in many respects like those in the present case. The plaintiff, a passenger, projected her hand through window bars having the same space between them as
Much reliance is placed by the appellant upon the case of Christensen v. Metropolitan Street R. Co. 70 C. C. A. 657, 137 Fed. 708, 18 Am. Neg. Rep. 690, but the facts therein arc quite different from those in this case. There a screen with meshes
Testimony with respect to the swaying of the cars was admitted over the objection of the appellant; and it is claimed that this was improper because, as it is asserted, the testimony had no tendency to prove the negligence claimed by the declaration. We think the swaying was one of the circumstances proper to be considered by the jury in determining whether or not the company was negligent in maintaining the poles so near the car, with no protection for passengers other than that which was afforded by the bars across the window.
Appellant asked the court to charge the jury that the poles, one of which caused the accident, were placed with the approval of the Commissioners of the District of Columbia, and that, since they were, no negligence could be attributed to the defendant, and lienee that a verdict should be returned against the plaintiff. This ignores entirely the question as to what care the defendant took to protect its passengers from injury by reason of the juxtaposition of the poles to the ears, and was properly refused.
No instruction was given by the court relative to the burden of proof either as to negligence or contributory negligence. This, however, was not error unless the appellant made a request correct in point of law and applicable to the facts. (Catts v. Phalen, 2 How. 376, 11 L. ed. 306; Haffin v. Mason, 15 Wall. 674, 21 L. ed. 198.) The request presented upon the subject by the appellant, if given, would have told the jury
It is also claimed that the court erred in failing to tell the jury at the request of the defendant “that no presumption of negligence on the part of the defendant arises in the ease at bar from the mere happening of the accident in question.” We think the equivalent of this instruction was given by the court when it charged the jury that whether or not there was negligence on the part of the defendant was “a question of fact for you. It is for you, in your good judgment, to decide whether it was negligence on the part of the company to maintain the pole in that position with respect to the passing car. Of course you cannot divorce that question from the other question, — the warning. It is really one question.” In other words that the jury must not presume, but must determine from the evidence, that defendant was negligent. Anyhow there could be no error in refusing to give the request as framed, because it was a part' of the request concerning the burden of proof which we have just seen embodied an improper statement of the law, and hence could not be given.
Defendant requested an instruction identical with one given
Finally it is urged on behalf of appellant that the court’s charge gave the jury to understand that the plaintiff would not be chargeable with negligence unless he knowingly and intentionally protruded his hand beyond the bars, and that this was error. We do not so understand the charge. After stating that the plaintiff testified that “he had almost involuntarily” thrown his hands outward, and also that the conductor had testified that the plaintiff had told him that “he had put his hand out of the window to call the attention of his companion to some work he had previously done in that vicinity,” the court said: “Whíchevex way you find tlie fact to be, then you will have to consider the question of whether what he did was the act of a reasonably careful and prudent man in the circumstances.” There was no error in this respect.
The charge of the court is clear, well arranged, and untainted with error. Upon a careful review of the whole record we are satisfied that the judgment is in harmony with law, and it is therefore affirmed, with costs. Affirmed.