delivered the opinion of the court.
Action for damages for a personal injury alleged to have been suffered by plaintiff while a passenger upon one of the cars of the defendant street railway company, through the negligence of its agents and servants. The corporation owns and operates a railway, the lines of which traverse certain streets of the city of Butte. One of these lines extends to the village of Meaderville, lying to the northeast. Miners who reside in Butte and are employed in the mines in Meaderville and its vicinity commonly avail themselves of this line in going to and returning from their work. For the accommodation of such as work at night, three cars reach and leave 'the vicinity of the mines at about three o ’clock in the morning. These are known as ‘ ‘ owl ears. ’ ’ Those in use at the time of the accident were open for one-half of their length. Along the sides of the open portions extended footboards for the use of passengers in entering and leaving them. The defendant Wharton is the manager of the railway. On the morning of August 20, 1911, the plaintiff, having finished his shift in the Leonard mine, boarded one of the cars (the first one leaving) for Butte and became a passenger thereon. The complaint alleges, in substance, that the defendants negligently permitted such a number of persons to become passengers on this car that it became greatly crowded; that it became so overloaded that there was not sufficient room inside to accommodate all those seeking passage thereon; that for this reason the plaintiff was compelled to stand on the footboard, and did so with the knowledge and consent of defendants; that the track was so constructed that it was within a distance of less than four feet from a line of telegraph or telephone poles situated on the west side thereof; that, notwithstanding this fact and the fact that it was dangerous to move cars along the track while passengers were standing on the footboards the defendants negligently moved the car upon which the plaintiff was a passenger; that the plaintiff did not know that the track was so constructed that the car would pass near the line of poles; that, while plaintiff
1. When the plaintiff offered evidence to sustain the
2. It is argued that the evidence is insufficient to sustain the verdict: (1) In that it fails to show that there was not room inside of the ear to accommodate the plaintiff, and hence that it was necessary for him to stand upon the footboard; (2) in that it does not tend to show that the line of poles was within less than four feet from the line of the track; and (3) in that it does not tend to show that the plaintiff did not know, or could not by the exercise of ordinary care have^ ascertained, this fact. We shall not undertake to set out in detail and analyze the statements of the different witnesses with a view to reconcile them. As is usual in such eases, these statements are not in harmony upon any point with reference to which the defendant makes its contention. The testimony shows that there were some 250 men coming off shift and making ready to take cars into Butte. Of the three cars about due to leave, only one had arrived. Each man was anxious to secure passage upon it; hence there was a rush both for seats and for standing room. Plaintiff was among
It may be admitted that the case made by the evidence as a
The court proceeded upon the assumption that it was incumbent upon the plaintiff, in order to recover, to show that the particular pole which brushed him from the ear was within four feet of the track, and in the instructions so charged the jury
3. The third contention is that the verdict is contrary to the law as declared in instructions 8 and 9 submitted to the jury. In the former the court advised the jury that, “in order for the plaintiff to recover in the action, it is necessary that he should have established, by a preponderance of all the evidence in the case, that it was dangerous to run ears on the track if they were crowded and passengers were standing on the footboard.”. The latter instruction is in part as follows: “That in order for the plaintiff to recover in this action, he must have established, by a preponderance of all the evidence in the case, that he did not know, and could not, in the exercise of ordinary care, have known, that the said street-car tracks were so constructed that the car upon which the plaintiff was a passenger would come in such close proximity to Said telegraph or telephone poles as set forth in said complaint; and, unless you find that .this has been established by a preponderance of all the evidence in the case, the plaintiff cannot recover in this action.” It is insisted that, under each of these instructions, the jury were bound to find for the defendant because there is no evidence in the case furnishing a basis for the inference that the proximity of the line of poles to the track was a source of danger to one standing upon the footboard, nor tending to show that, if plaintiff did not actually know the conditions, he could not, by the exercise of ordinary care, have gained knowledge of them.
4. Complaint is made that the court erred in submitting to the jury instructions 2, 3, and 5. It is said that, while correct as abstract propositions of law, they have no application to the issues involved in this case. Instructions 2 and 3 define generally the duties of carriers of passengers, as they are laid down in sections 5302, 5303, and 5347 of the Revised Codes, with reference to overcrowding of their vehicles, the furnishing of accommodations for passengers, etc. Instruction 5 defines the rights and duties of such carriers when its cars have been permitted to become overcrowded, and declares it negligence on the part
5. Error is assigned upon the refusal of the court to give requested instructions 12, 13, 15, and 16. Instruction 16 is as follows: “If you believe from a consideration of all the evidence that it has been established by a preponderance thereof that the plaintiff was warned of the danger of standing upon the side board of the said car, and thereafter still continued to occupy the position, and by reason of so occupying said position was hit by the pole and knocked from the said car, and suffered the injury complained of in consequence thereof, then you are instructed that the plaintiff voluntarily assumed the position of danger and had notice of the said danger, or, by the exercise of reasonable care, could have known thereof, and assumed the risk incident to his said position, and cannot recover in this action. ’ ’
To justify a recovery, it was incumbent upon the plaintiff to show, by a preponderance of the evidence, that his injury was the result of the failure, on the part of the defendant, to observe such precautions as the exigencies of the case required. The substance of the charge in the complaint is that defendant
Instruction No. 13 is as follows: “You are further instructed that if the plaintiff voluntarily got upon the side board of said car after he knew that the said ear was crowded, and that there was no opportunity for him to get inside of the ear and in a position of safety, he thereby assumed the risk of the danger of being hit by the pole, even though the same was not brought to his knowledge or attention, and he cannot recover in this action. ’ ’ This instruction would have required the jury to return a verdict for the defendant, for the plaintiff testified that he took his position on the footboard because the car was crowded and there was no room inside. It is not contributory negligence per se
In Lobner v. Metropolitan St. Ry. Co., 79 Kan. 811, 21 L. R. A., n. s., 972, 101 Pac. 463, it was said: “The practice of inviting and permitting passengers to ride on the platform of street-cars is so common that it cannot be held, as a matter of law, that a passenger in doing so is guilty of contributory negligence. One who rides on a crowded ear assumes the inconvenience resulting from its crowded condition; but the company is not, for that reason, relieved from responsibility of using due care for the safety of the passengers invited upon the car.”
6. The last contention is that the verdict is excessive, and with
The cause is accordingly remanded to the district court, with direction to grant the defendant a new trial, unless, within thirty days after the remittitur is filed, the plaintiff shall file with the clerk his written consent that the judgment may be reduced to $2,500. If such consent is given, the judgment shall be modified accordingly as of the date of its original entry, and, together with the order denying a new trial, will stand affirmed. That part of the judgment awarding costs in the district court is not to be disturbed. The plaintiff shall recover the costs on appeal.