54 F. 466 | U.S. Circuit Court for the District of Eastern Louisiana | 1893
This case is submitted upon the petition and exception of no cause of action. The suit is for violation of defendant’s obligation as a carrier, in not carrying plaintiff safely upon a car operated by electricity. She avers that she was injured by her arm coming in contact with a post erected by the defendant in connection with the new “trolley” system, — -the alleged, fault in the erection of the post being that it was. placed too near the car; and an'additional fault is alleged in the construction of the switch. The position taken by the defendant in the attempt to maintain its exception is that the plaintiff having averred in her petition that she rested her arm upon the window sill, the window being open, she has averred negligence. The cause of the accident seems to have been contact with the trolley post. The negligence of the defendant is charged to have been too close proximity of the post to the car, and a badly constructed switch, whereby the post came in contact with the plaintiff’s arm. The averment of the plaintiff is as follows:
“That the weather was warm, and the windows in said car were raised and open when the petitioner got in and took her seat, and afterwards she rested her arm upon the window sill.”
The defendant is averred to be a corporation operating a street railway through and over the streets of the city of New Orleans. The question presented by the exception is: Is it negligence, per se, for the plaintiff, who was a passenger upon a street-railway car, to rest her arm upon the sill of a window which was open?
It is not necessary to consider whether it would, in law, make any difference if the car had been a steam-railway car; for the authority upon which I shall decide the question was a decision where the injured party was a passenger upon the latter, and the passenger upon a street car would be held to certainly no greater degree of
If, on the other hand, the question as to the meaning of the contract for transportation or carriage on street cars within a city wholly within a state belongs to that class of questions which are to be viewed as general, and not local, (lien the supreme court of the United States seems to have decided the precise question presented by the exception, and to have held that the resting of the arm upon the window sill of an open window is not contributory negligence. Farlow v. Kelly. 108 U. S. 288, at page 289, 2 Sup. Ct. Rep. 555, at page 556, the case is stated:
*468 •'Kelly [the plaintiff] was a passenger, and liad a seat near an open window. Having a severe lieadaelie, lie placed liis right elbow on the sill or base of the open window, and rested his head upon his hand. The forward right-hand comer of the coach in which Kelly was riding struck a freight car, and jarred his elbow from the window sill outward over the window sill, and outside the car, bringing his forearm in contact with the freight car.”
At page 291,108 U. S., and page 557, 2 Sup. Ct. Rep., the court say:
“In our opinion, it was not contributory negligence for Kelley! under the circumstances, to ride with his elbow on the sill of the open window.”
I think this last case so closely resembles the case made by the petition here as to be undistinguishable from it. True, Farlow v. Kelly was a case arising on a steam-railway car; but, when there has been a distinction attempted between negligent acts of passen,gers on steam cars and those on horse cars, given acts of exposure on the part of the steam-car passenger are, in the words of Mr. Bishop, (Bish. hfoncont. Law, § 1116,) “deemed the more recriminatory,” on account of steam power being more difficult of control than horse power. The measure of negligence on the part of passengers in taking this or that position could not be more exacting on electric cars than upon steam cars. My conclusion, therefore, is that, whether the law of this case is to be derived from the decisions of the state or the United States supreme court, the exception must be overruled.