Chunn v. City & Suburban Railway, 23 App. D.C. 551

Chunn v. City & Suburban Railway

23 App. D.C. 551 | D.C. Cir. | 1904

Mr. Justice Shepard

delivered the opinion of the Court:

1. The grant or refusal of leave to amend is a power intrusted to the trial courts that- injustice and hardship may be prevented and the merits of the case fairly tried. Whether in the particular instance the leave should be granted or refused is a matter within the discretion of the trial court, and is not reviewable in the appellate court. German Evangelical Soc. v. Prospect Hill Cemetery, 2 App. D. C. 310; Brown v. Baltimore & O. R. Co. 6 App. D. C. 237, 242; Morris v. Wheat, 11 App. D. C. 201. That the amendment may relate to the withdrawal of a plea in bar and its substitution by one in abatement, or the reverse, does not- alter the rule. Eberly v. Moore, 24 How. 147, 158, 16 L. ed. 612, 614; Spencer v. Lapsley, 20 How. 264, 267, 15 L. ed. 902, 904.

2. The questions arising under the evidence offered by plaintiff were, first, whether it was sufficient to warrant the inference of defendant’s negligence, and, if so, whether it plainly appeared therefrom that, notwithstanding that negligence, the plaintiff’s injuries were the result of her own want of ordinary care under all the circumstances.

The contention of the appellant rests upon the proposition that running the outgoing car at a high rate of speed and not *563reducing the same to an easily controllable rate, or stopping it altogether, at the point where the incoming car, for which plaintiff waited, was about to stop to take on passengers, constituted culpable negligence. The case upon which the appellant most strongly relies for the principle to support her contention on both points is that where a passenger who had waited at a station for a local train going in one direction was run down and killed by an express train going in the other whilst he was crossing the tracks to take his own train, which was just coming to a stop at the platform on the opposite side. Warner v. Baltimore & O. R. Co. 168 U. S. 339, 344, 42 L. ed. 491, 495, 18 Sup. Ct. Rep. 68. That, being a steam railway, maintained stations at which the local trains, at least, always stopped for passengers, though the express trains did not.

In reasonable anticipation of the dangers attending the constant and forced crossing of the tracks at such stations, the defendant, itself, had promulgated a rule — though the same had been generally disregarded by its employees as too restrictive of rapid transit — prohibiting the running of trains past a station when another train might be there receiving and discharging passengers. Boentgen v. New York & H. R. Co. 36 App. Div. 460, 55 N. Y. Supp. 847, was that of a street railway operated under a like rule. The defendant in this case— an electrical street railway — maintained no stations, but stopped at street intersections and other places, including the one in question, upon signals given by passengers or persons waiting at the same. The evidence concerning the platform so often mentioned in the testimony is very unsatisfactory. It does not seem to be a platform for the use of passengers in getting on and off the cars, but consisting of planks laid upon the ground both within the rails of each track, and the space between the said tracks would seem to be for the purpose of a crossing for vehicles as vell as persons at the point. The appellee had no rule like the one mentioned in the cases cited, nor is there any evidence of its ordinary or customary practice in that regard. It *564was well aware, however, that persons frequently stood in the space mentioned when waiting to take the car for the city, and had given sanction to the practice by opening the car gates and permitting them to enter from that side.

Whether, then, under all the circumstances, it was an act of negligence to run the outgoing car past the place when people could be seen standing in the space waiting for the other car, and in such proximity to the track as to indicate the special danger of one of them, is a question proper for the determination of the jury ordinarily.

3. The question of contributory negligence remains to be considered, for if that has been so plainly shown as to make it a matter of law for the determination of the court, the negligence of the defendant is immaterial.

Carefully considering the evidence in the light of all reasonable inferences that can be drawn from its undisputed facts, our conclusion is that the plaintiff’s injuries were the result of her own want of ordinary care. The distance between the inner rails of the two tracks was 7 feet and 10 inches, and each car projected 2 feet and 2 inches beyond the rail. Consequently the clear space between uniting cars was 3% feet. A car approaching in either direction could readily be seen 1/4 of a mile away. One other person stood in the said space in safety while the car passed. He saw it coming, but did not leave the space. He saw plaintiff beyond him, but was unable to say what she was doing when struck. This witness said that there was “ample room to stand if you were thinking about what you were doing,” and his safety demonstrated the truth of his statement.

Plaintiff had no recollection of what she was doing or where she was standing at the time. It does not appear that she was deficient in intellect, and she ought to have seen the car and exercised her thought, as did her witness. Edgerton v. Baltimore & O. R. Co. 6 App. D. C. 516, 523; Harten v. Brightwood R. Co. 18 App. D. C. 260, 265; Barrett v. Columbia R. Co. 20 App. D. C. 381, 390; Stewart v. Washington & G. F. *565Electric R. Co. 22 App. D. C. 496. See also Miller v. St Paul City R. Co. 42 Minn. 454, 44 N. W. 533. The facts of that case are almost identical with those shown in this record; what little difference there is made that, if anything, more favorable to the plaintiff. The defendant had permitted the practice of entering the cars from the space between the tracks which was paved, while the other side was not, and yet there were but 2 feet of clear space between passing cars. Moreover, the grip-man of the cable car which ran down the plaintiff testified that he saw the plaintiff in the point of danger, and did not moderate the speed of his car. The appellate court reversed a judgment for the plaintiff on the ground that there could he no other reasonable conclusion than that his own negligence was the cause of his injury.

Being of the opinion that the trial court was right in directing the verdict upon the ground of the plaintiff’s contributory negligence, the judgment will be affirmed with costs. It is so ordered. Affirmed.