137 F. 708 | 8th Cir. | 1905
This is an action brought by Augusta Christensen against the Metropolitan Street Railway Company to recover damages for personal injuries which she alleges were caused by the negligence of the defendant street railway company. The action was commenced in the state court, and removed by the defendant in error to the Circuit Court of the United States for the District of Kansas.
The plaintiff in error (also plaintiff below), in her amended petition, alleges, in substance, that the defendant was a corporation duly organized, and at the time of her alleged injury was engaged in maintaining and operating a system of street railway, upon and along certain streets in the cities of Kansas City, Kan., and Kansas City, Mo.; that one of the defendant’s branch lines, extending from the Union Depot in Kansas City, Mo., to a station called River-view, in the City of Kansas City, Kan., was constructed upon an elevated structure along Central avenue in Kansas City, Kan., and across the Kansas river, and along Ninth street, in Kansas City, Mo.; that for the purpose of conducting electricity, which supplied the power for running its cars, the defendant, overhead and on a line nearly perpendicular with the center of its tracks, strung a copper wire, known as a “trolley wire,” and, in order to hold the wire in position, had, on the side of the track, erected large poles of wood or iron upright; that extending out from the top, or near the top, of each of the poles, was an arm, and to the end of the arm, or near the end of the arm, the trolley wire was fastened. It is further alleged that, to make it reasonably safe for public travel, and to protect the lives of its employés and passengers transported by its cars, it was necessary to place these poles, supporting the trolley wire, at a distance not less than three or four feet from the rail on either side of the track; that, if the poles were placed nearer than that distance to the track, it would be necessary, in order .to
;::Tb this petition the defendant answered, first, by a general denial, aridy for a second and further defense, alleged that, if the plaintiff deceived-any injury at the hands of the defendant, she so carelessly 'and- negligently conducted and demeaned herself at the time of the
When the case was first called for trial in the circuit court, at the conclusion of the statement made by counsel for plaintiff, counsel for defendant moved for a judgment upon the statement, which application was overruled, and the case subsequently came on for trial before the court and a jury. At the conclusion of the plaintiff’s evidence, the defendant filed a demurrer to the evidence, which, after argument, was sustained by the court, and a judgment was thereupon entered in favor of the defendant. The plaintiff duly excepted to the ruling of the court upon the demurrer to the evidence, and sued out this writ of error to reverse the judgment entered in favor of the defendant.
The evidence set out in the record establishes the following facts: That the trolley wires that carry the current were suspended on cross-arms or brackets on perpendicular poles erected on the elevated structure upon which the tracks were laid; that the distance between these poles and the side of a passing car would vaiy from six to ten inches; that the seats in the car in which the plaintiff was a passenger ran lengthwise of the car, and were located along the sides of the car, with the back of the seat against the side of the car; that the plaintiff was sitting with her back to a window on the side of the car where she was seated, and facing the opposite side of the car; that the window was down, the upper end of the sash extending about two inches above the back of the seat; that extending across the windows on the outside of the car, and securely fastened- to the car, were iron screens covering the windows up from the window sills for a distance of from 14 to 16 inches, leaving an open space of something like 14 inches between the top of the screen and the top of the car window; that the meshes in these screens were about three-quarters of an inch square; that the screens placed across the windows of the car were such that would effectually prevent passengers from being injured by any involuntary action on their part; and that in order to put her head outside of the car window, over this screen, plaintiff would necessarily have to arise from her seat, turn about, and either stand or kneel upon the seat.
While a street railway company engaged in the transportation of passengers, as the defendant in this case was, is bound to exercise the highest degree of care and skill which a cautious or prudent man would exercise under the circumstances for the protection of its passengers, yet it has a right to assume that passengers patronizing its cars will travel in the usual way, and occupy the seats provided for that purpose, or, if the car is crowded, those standing will occupy the open space, or aisle, in the center of the car between the seats, and in either case the screens upon the windows of the car in which the plaintiff was injured, were entirely sufficient to protect passengers from any involuntary action on their part, such as might be caused by a lurching or swaying of the car while the car was in motion. In other words, we think that the company was not required to anticipate that the plaintiff might become ill
While the question of negligence and contributory negligence are ordinarily questions of fact to be passed upon by a jury, yet if it clearly appears from the undisputed facts, judged in the light of that common knowledge and experience of which courts are bound to take notice, that a party has not exercised such care as men of common prudence usually exercise in positions of like exposure and danger, or where the evidence is of such conclusive character that the court would be compelled to set aside a verdict returned in opposition to it, it may withdraw the case from the consideration of a jury. Railroad Company v. Husen, 95 U. S. 465, 24 L. Ed. 527; Schofield v. Chicago, Milwaukee & St. Paul R. R. Co., 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224, and cases there cited; Northern Pacific Railway Co. v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014; N. W. Rd. Co. v. Davis, 53 Fed. 61, 3 C. C. A. 429; Missouri Pacific Ry. Co. v. Moseley, 57 Fed. 921, 6 C. C. A, 641, and cases cited. In North Penn. Railroad v. Commercial Bank, 123 U. S., 727, 8 Sup. Ct. 266, 31 L. Ed. 287, the Supreme Court said : “It would be an idle proceeding to submit the evidence to the jury when they could justly find only in one way.”
■ While, the plaintiff’s sudden illness undoubtedly placed her in a very uncomfortable and distressing position, yet that fact would not authorize her to disregard unmistakable warnings of danger. She must have known that the heavy screens which barred the windows were placed there for no other purpose than to prevent passengers from extending their arms or heads out of the windows, as the meshes in the screen were too large to serve any other purpose. To disregard this plain warning was, we think', such contributory negligence upon her part as will necessarily preclude a recovery in this case.
The judgment of the Circuit Court is affirmed.