Hawley v. Columbia Railway Co., 25 App. D.C. 1

Hawley v. Columbia Railway Co.

25 App. D.C. 1 | D.C. Cir. | 1905

Mr. Justice Morris

delivered the opinion of the Court:

That there was ample evidence to go to the jury on the question of the defendant’s negligence, if that were the only issue in the case, is too clear to need elaboration. What we have already cited was amply sufficient for the purpose. But it is upon the supposed showing of contributory negligence by the plaintiff on his own part that it is sought to sustain the ruling of the trial *4court. And the case of Chunn v. City & Suburban R. Co. 23 App. D. C. 551, in which we probably carried the doctrine of contributory negligence to its extreme limit, so far as it removed the cause from the consideration of the jury, is cited in support of the contention.

We think there were some important distinctions between the Ghunn Case and that now before us. In the Ghunn Case it was not at all certain that the injured person had the right to stand or be in the place where she was injured, — some planks laid down between the two tracks of the defendant company’s railroad, and apparently only used as a platform by a kind of sufferance or tolerance of the employees of the company. But principally it appeared that there was amply sufficient distance, 1 feet and 10 inches, between the nearest rails of the two tracks, leaving 3 feet and 6 inches by actual measurement between two cars standing abreast on the two tracks, — a space abundantly sufficient for a person proposing to board a passing car to stand on and from which he might enter in safety, if, as the testimony was, he was careful to see what he was doing. It was only because the plaintiff in that case was careless in what she was doing that she went beyond the limit of safety, and was injured.

In the present case the plaintiff was where he was entitled to be. It was the usual place for passengers to alight from and to enter the cars of the Capital Traction Company at that point. But the place was of very much smaller dimensions. The outer rails of the tracks of the two railway companies were only 4 feet and TO inches distant from each other, and the testimony is that when the cars stand abreast of each other there, there is only about 16 or 18 inches between them, and “that unless a man is standing sideways he is very apt to be hit with cars on both sides of him.” If in such a situation a high degree of care was required of the appellant, so was there a commensurate degree of care required of the appellee, and it was not competent for the latter to run the former down and maim or kill him, when the motorman, with the exercise of reasonable care and prudence, could have guarded against the result of the plaintiff’s contributory negligence, if such there was.

*5We are of opinion that the case before us falls -within the rule laid down by the Supreme Court of the United States in the case of Grand Trunk R. Co. v. Ives, 144 U. S. 408, 36 L. ed. 485, 12 Sup. Ct. Rep. 679, and in the case of Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 35 L. ed. 270, 11 Sup. Ct. Rep. 653, wherein it was held that the contributory negligence of a person injured will not defeat his action if the defendant by reasonable care and prudence might have avoided the consequence of such contributory negligence. Here the motorman of the defendant company had ample opportunity to guard against the accident if he had been using even ordinary care and prudence and attending to the proper performance of his duty, which he evidently was not doing, if the testimony of the plaintiff’s witnesses is to stand unimpeached. At one of the most dangerous crossings in the city of Washington he was not looking ahead, as he should have looked, and he had abandoned all control both of the controller and of the brake of the car.

It will not do in a ease of this kind to hold the plaintiff as the sole author of his own misfortune, when the defendant, by the use even of ordinary care and prudence, could have avoided the accident, even after the contributory negligence had supervened.

We are of opinion that the case was one proper to be submitted to a jury under suitable instructions, and that it was error to withdraw it from their consideration.

The judgment appealed from must be reversed, with costs; and the cause will be remanded with directions to vacate the judgment and the verdict, and to award a new trial. And it is so ordered. Reversed.