38 Kan. 375 | Kan. | 1888
Opinion by
The defendant in error was a passenger on one of the open cars of the street railway company on the evening of October 1, 1885, at a time when there was a vast concourse of people in the city of Topeka, drawn together by a sham battle on the fair grounds during a soldiers’ reunion. The car upon which the defendant in error was riding was going north from the fair grounds along a street known as Topeka avenue. On this street, and between Huntoon and Thirteenth streets, is located alongside of the main track of the street railway, and to the east of it, a switch track, 217 feet long from point to point, used to allow cars to pass. The car upon which defendant in error was riding was what is called an open car; on each side of the frame of the car, extending its whole length, there was a foot-board from 8 to 10 inches wide, to enable passengers to step into and out of the car. And on occasions when there was a large and unusual number of passengers to be carried, these foot-boards were utilized by the company, and passengers were allowed to stand upon them, and to be carried on them from station to station. Higgs was standing on the west foot-board, north of the center of the car and near to its front end, when the car turned onto the switch, went so far north on it and approached so near to its intersection with the main track, that a closed car
It is said that he could have seen the car coming on the main track, and avoided the injury by the exercise of ordinary caution. This is a dangerous assumption for the plaintiff in error; it is virtually saying that the use of his eyes ought to
The case of Puller v. Talbot, 23 Ill. 357, cited by plaintiff in error, is a case of injury by a stage coach, and the court says: “Common carriers of persons are required to do all that human care, vigilance and foresight reasonably can under the circumstances, in view of the character and mode of conveyance adopted, to prevent accident to passengers.” All that human care cando is the “highest,” “utmost,” “possible” effort.
The case of Meier v. Pa. Railroad Co., 64 Pa. St. 226, is one in which a passenger in a sleeping-car was injured by the axle of the forward truck of the car breaking, by reason of a latent defect in its construction, not discernible by those who were skilled in such matters, and has no application here, the facts being entirely different; and yet the court says in that case: “The carrier may relieve himself, by showing that the
The supreme court of the United States, in its opinion in the case of P. & R. Rld. Co., v. Derby, 55 U. S. 468, says:
“When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and public safety require that they be held to the greatest possible care and diligence.”
The theory of counsel for the plaintiff in error seems to be that the rule of highest skill can only be applied to cars propelled by steam, because it is the most dangerous of all modes of conveyance. We think that the rule applies to street cars and other vehicles drawn by horses, to its full extent, the difference being in the means and instrumentalities used to prevent accident by reason of the mode, rather than to the degree in which the' preventive means are to be employed. To each
Objection is made to instructions four and six, wherein the court instructs the jury that the mere fact that the plaintiff Higgs was riding on the step of the car would not defeat his right to recover, if it was customary to ride there and the car was so crowded he could-not procure a seat, and if he rode there without objection from the conductor or other employé of the company; and it is said they were clearly wrong because there was no evidence of any permission to ride on the step, and because the evidence was undisputed that the plaintiff Higgs had been distinctly warned against riding there; and the case of Huelsenkamp v. Rly. Co., 34 Mo. 45, is cited and claimed to be decisive of this question. What are the facts as developed by the witnesses produced by the plaintiff in error ? The superintendent- said: “ I said to Higgs, don’t try to get on the cars while there is such a rush; as soon as I can, I will get you a seat; ” but he never did anything more than talk to him; made no effort to furnish a seat. It is not in terms a warning not to ride on the foot-board; it is an expression of fear that, as he was crippled, he might get hurt in the rush, coupled with a promise to get him a seat. He did not get hurt in the “rush,” and he did not get a seat. The superintendent also stated that at the reunion it was customary for persons to ride on the foot-boards, on the platform of the cars, and even on the top of the cars, and that the conductors collected fare from them wherever they rode, but they were requested not to so ride by him; that on all ears that started after he had promised Higgs to get him a seat, persons were riding on the foot-boards; that upon all the cars coming to and going from the city, the company allowed men, women and children to continuously ride upon the front platform, the rear platform, and also upon the foot-boards of the cars, and collected fare from them; that fare was collected from
The second instruction asked by the street railway company was properly refused, because it did not state the rule of diligence and care required by such company in the operation of its road and the management of its cars.
The answer to special question No. 4, submitted to the jury, must be construed in the light of the evidence respecting the subject-matter of the interrogatory. In the view of counsel for plaintiff in error, a person in a crippled condition has no right to ride on a street car under any circumstances, except when a seat is furnished by some employé of the company. It is unquestioned that the company can make all such rules respecting the manner in getting off or on the cars; the place where passengers are to ride; and every other reasonable regulation that conduces to the safety and accommodation of the persons to be carried over its line, and has the undoubted right to insist on their due observance; but having done so,
It is also insisted in this connection, that the position taken knowingly and intentionally by the defendant in error, is negligence per se, and for that réason the company is not liable. While we have substantially disposed of this objection, in what we have said on another branch of the case, it is well to reinforce that view by citations from a few well-considered cases. In Germantown Rly. Co. v. Walling, 97 Pa. St. 55:
“ The passenger voluntarily got upon a car so crowded that he was obliged to take a position on the step of the front platform of the car, occupied at the time by two other men, between whom he squeezed into a position, where, for the purpose of retaining his place, he was obliged to hold fast with one hand to the dasher, and with the other to the iron bar under the window of the car. The car stopped when he hailed it, and received him as a passenger. The driver testifies that he knew the car was so full a man could not go through it to the rear platform. Crowded as it was, the conductor said there was room for more, both .inside and on the rear platform, but Walling first tried to get on the rear platform, and failing, went to the front. Conductor, driver and passengers acted as if*389 there was room so long as a mau could find rest for his feet, and a place to hold on with his hands. The companies do not consider such practices .dangerous, for they knowingly suffer it, and are parties to it. Their cars stop for passengers when none but experienced conductors see a footing inside or out. Street railway companies have all along considered their platforms a place of safety, and so have the public. Shall the court say that riding on a platform is so dangerous that one who pays for standing there can recover nothing for an injury arising from the company’s default? So little danger exists in riding on platforms, accidents to passengers while thus riding are so rare, that this is the first time the question raised has been presented in Pennsylvania.”
In Meesel v. L. & B. Rld. Co., 8 Allen, 234, the court said:
“The seats inside are not the only places where the managers expect passengers to rem'ain, but it is notorious that they stop habitually to receive passengers to stand inside till the car is full, and continue to stop and receive them even after there is no place to stand except on the steps of the platforms. Neither the officers of these corporations, nor the managers of the cars, nor the traveling public, seem to regard this practice as hazardous, nor does experience thus far seem to require that it should be restrained on account of the danger. There is therefore no basis upon which the court can decide, upon the evidence reported, that the plaintiff did not use ordinary care.”
The facts in this case were very similar to the one cited from Pennsylvania. Standing on the front platform of a horse car when there is room inside, is not conclusive evidence that the person injured by the driver’s default was not exercising due care. (Maguire v. Middlesex Rld. Co., 115 Mass. 239.)
A street railway company has the right to carry passengers on the platforms, and if a passenger be injured while standing there, without objection by the company’s agent, whether the injury was with his contributory negligence is for the jury to decide under all the facts and circumstances detailed in the evidence. (Burns v. Bellefontaine Rly. Co., 50 Mo. 139.) It has also been decided in other states, that if a passenger be in-' jured while standing on the platform of a street or horse car,
In Nolan v. B. C. & N Rld. Co., a very recent case decided by the New York court of appeals, 87 N. Y. 63: “ The plaintiff, a passenger on a street car, rode on the front platform, without warning or notice to the contrary, for the purpose of smoking. There was plenty of room inside, but the conductor took his fare without comment.” Being thrown off and injured by a violent and negligent jolt, it was held that he was not debarred from recovery by occupying the platform. It seems from these cases, that there could be no pretense for saying, under the particular facts of this case, that the defendant in error was negligent per se.
There is nothing in the other exceptions which would justify a reversal.
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.