Lead Opinion
delivered the opinion of the court.
Plaintiff brought this action to recover damages for personal injuries alleged to have been received by him through the negligence of the defendant company, while he was a passenger on one of its electric street cars in Denver. At the trial, plaintiff testified in his own behalf, and therе was also one other witness, who however did not see the accident, and whose testimony was not material as to the main point in issue. At the conclusion of the testimony offered by plaintiff, the court upon motion of defendant granted a nonsuit.
At the time of the accident, plaintiff was sixty-nine years of age. It appears from his testimony that about eleven o’clock at night, he boarded a Broadway electric car with the intention of alighting at Curtis street where it intersects Fifteenth street. Two cars were coupled together, the first or motor car being a closed one, and the second an open coach. Plaintiff took his seat in the motor car near the forward end. Upon reaching Curtis street at its easterly side, the car slackened its speed, and the plaintiff thinking it would stop, rose and walked to the rear platform for the purpose of getting off. When he reached the platform, the speed of the car was somewhat accelerated, and the plaintiff thinking that there was no intention of coming to a full stop, stepped on to the lowest step of the platform, and was in the act of stepping to the ground, when the cоnductor cried to him to stop, and at the same time seized him by the arm. He says that being in the act of stepping off, he had gone too far to stop and the result was that he fell. The conductor, still remaining upon the platform, clung to him for some little distance, and the plaintiff rolling under the step of the
It is needless to discuss or cite authorities in support of the proposition that a trial court may in any proper case grant a nonsuit. It has been repeatedly affirmed by numerous decisions of this court and of the supreme court, and the power is expressly given by the code. Code, section 166. The only question to determine is when a proper case arises for the exercise of this power. No general rule can be laid down which can be made applicable in all of its details to every case in such a manner as to relieve the trial court of any discretion. The rule, however, is by no means as broad in its scope as contended by plaintiff. It is not necessary that there should be an absolute want of all evidence in order to justify the trial court in exercising the power. The bettеr rule is, and one which is well sustained and firmly settled not only by reason but by the great weight of authority, that when it appears to the court, looking at the evidence in the most favorable light for the plaintiff in which the jury would be at liberty to view it, that there is no evidence which would justify or support a verdict for him, thеn it is not only the privilege but the duty of the court to sustain a motion for nonsuit; Schwenke v. Union D. R. Co.,
That the mere act of alighting from a moving car is not negligence per se is well settled by the weight of authority. This has been declared to be the rule in this jurisdiction by a recent decision of our supreme court, and further that the questiоn as to whether the act is or is not negligent is one of fact for the jury to determine. Denver Tramway Co. v. Reid,
Assuming however that the evidence warranted the conclusion that the act of plaintiff in attempting to alight at the time and in the manner which he did was negligent, the judgment of nonsuit was еrroneous upon another ground. It is a well-settled rule of the law of negligence, affirmed by repeated decisions of this court, of our own supreme court, and of the supreme court of the United States, that even though an injured party may have been guilty of negligence, this does not neсessarily defeat his right to recover damages. Notwithstanding the injured party may he chargeable with negligence without which he would not have received the injury complained of, yet, if the defendant, with knowledge of his exposed situation, did not exercise reasonable care and prudence to avoid the consequences of his negligence, a recovery may nevertheless he had. Denver, etc., Transfer Co. v. Dwyer,
On the same principle, and with equal if not more reason, a recovery will not be precluded if, instead of an act of omission, the defendant, with knowledge of plaintiff’s exposed and dangerous situation, without the exercise of reasonable care and prudence commits an act which increases the danger and which it can he reasonably inferred was the immediate cause of the accident, and without which the injury might not have been occаsioned.
Plaintiff testified positively that it was the act of the conductor in seizing and holding to him which caused him to fall and suffer the consequent injury. This might or might
We are aware that the law has such a high regard for human life that it will not оrdinarily impute negligence to an effort to preserve or even to protect one from great personal injury. Such an act may however become negligent in the eyes of the law, even though there be no question as to honesty of purpose, if done under such circumstances as to constitute rashness, or manifest great want of care and caution in the judgment of prudent persons. Before, however, this principle of the law could have been invoked in behalf of defendant, it was necessary to have first shown with reasonable certainty the state of facts upon which alone it could have been based. It did not sufficiently appear from the evidence on which the court granted a nonsuit that the plaintiff was in imminent or serious danger in attempting to alight from the moving car, nor that there was even such apparent danger as. to excusе or justify the act of the conductor, nor that the conductor’s act was not made negligent by a careless, imprudent or reckless manner of performance. All of these things may be shown by the further introduction of testimony, but none appear from the evidence in the record with sufficient сlearness and certainty to sustain a judgment of nonsuit.
For these reasons the judgment will be reversed and remanded for further proceedings in accordance with the views herein expressed.
Reversed.
Rehearing
ON MOTION FOR REHEARING.
One of the chief arguments urged in support of the petition for a rehearing is that the question of
The opinion of the trial court does not appear in the record, and we are not therefore advised upon what ground it based its action in sustaining the motion. Presumably the сourt considered all of the grounds assigned in the motion, and for aught we know, may have based its action entirely upon the ground of contributory negligence by the plaintiff. It was therefore not only proper, but fair and right to the trial court that this court should consider the evidence in the light of these rеasons assigned for the nonsuit, in determining the question as to whether the nonsuit was proper; and we do not consider that we were necessarily relieved from this obligation because defendant in its brief in this court failed to discuss the question of contributory negligence. It may have been the determinative question which induced the trial court to grant the nonsuit. It might have found as to all of the other questions raised that there was evidence tending to show negligence on the part of defendant, but because plaintiff himself had been guilty of negligence which contributed directly to the injury, his recovery was barred. We fail to see, therefore, wherein this court has gone outside of the record by discussing this question.
The motion for nonsuit was based upon the showing made hy plaintiff alone, and defendant presented no evidence whatever. ' We held in the opinion that upon the evidence as рre