9 D.C. 277 | D.C. | 1875
delivered the opinion of the court:
The responsibility of a railway company to a third person is quite distinguishable from that which it owes to a passenger. In the case of the latter, the very highest care and the greatest possible diligence are to be exercised for his safety, while toward a stranger ordinary care, adapted to the circumstauces of the case, is all that the law requires. The discretion which would be exercised in running a train of cars attached to a locomotive when passing through the open country would be very different from the prudence to be employed in traversing the streets of a crowded city. Hence, it is their duty to check their speed, to ring bells, or sound a whistle, and to employ generally the means at their command for the purpose of warning persons using the streets of the danger. A person driving a carriage or a wagon would not be required to use such method of signaling the public. What would be extraordinary care in their case would amount only to ordinary diligence upon the part of a company which wielded such powerful machinery as constitutes a running train of cars. These precautions are so> obviously necessary, that railroad corporations have required them to be used by their own regulations, and in many cases the statute makes them imperative. Indeed, the safety of the public demands that they should be regarded as matters of ordinary care where the danger is so great and the means of avoiding it so easy of exercise. We think, therefore, that the judge who tried the cause was justified in giving the instruction to the jury asked for by the plaintiff’s counsel, that if they should find there was no notice given of the movement of the train either by ringing a bell, blowing a whistle^ or otherwise, and should also find the other facts referred to in the instruction, the defendant would be liable, as these facts made it the duty of the defendant to give notice of some kind before moving. Another of the circumstances to be found by the jury in order to impose liability ■was,“ that the plaintiff got on the train when it was standing still; that the injury to the plaintiff was occasioned by suddenly starting the train either backward or forward.” If the
It was also said on the argument that the plaintiff was a trespasser on the defendant’s cars, and is, therefore, entitled to no redress; but if it be true, and the j ury have found that it is true, that the defendant permitted persons to pass over their trains under the same circumstances as existed in this instance, the plaintiff can hardly be regarded as a trespasser; and even if we assume that he had no right to be there, yet this would not absolve the defendant from the exercise of ordinary care. We do not forget the doctrine that a plaintiff cannot recover for an injury unless he was himself free from fault, but it would be a serious injustice to apply this rule if the party had done no more than act in conformity to a custom or habit which had grown up with the acquiescence of the defendant. The act of the plaintiff in attempting to pass -over the cars, at most, was only a technical trespass, so that, even if the jury had found the facts to be as claimed by the plaintiff, it is doubtful whether he would be»precluded from a right to recover, as the conduct of defendant in neglecting the ordinary precautions at the time of starting the train was the direct and proximate cause of the injury. In Isbell vs. New York and New Haven Railroad Company, 27 Conn., 393,