Washington & Georgetown Railroad v. Hickey

5 App. D.C. 436 | D.C. Cir. | 1895

Mr. Chief Justice Alvey

delivered the opinion of the Court:

It is shown by the evidence that the street car was an open summer car, crowded with passengers; and that when it approached the crossing, according to the testimony of some of the witnesses, it proceeded with more than ordinary speed. As this street car neared the crossing an east bound train on the steam car tracks approached the intersection of the tracks of the two roads; and this approaching train was plainly in view of both the driver of the street car and the gatekeeper, if they had been on the lookout for it. It appears that, as the street car approached the crossing, the gates were partially lowered, and the street car, if it did not actually stop, slackened its speed; but at that moment the gates were raised and the street car proceeded to cross the tracks of the steam car road in front of the approaching train. This, as the result showed, would have been entirely successful, and without producing alarm and terror to the passengers, though exceedingly perilous, but for the fact, that, just as the street car got upon the steam car tracks, the gates were let down again, the south arm of the gates falling about the manes of the horses, and the north arm over the top of the street car; and thus catching the street car immediately on the tracks of the approaching steam car train, and which, at that moment, according to the testimony of some of the witnesses, was only about fifty or sixty feet distant from the crossing. The passengers in the street car were at once naturally stricken with excitement and terror, many jumping from the car, and in the midst of the commotion and confusion, Mrs. Hickey, the female plaintiff, was either pushed or she jumped from the car, and fell upon the ground, and, in some way, not very clearly shown, one of her feet was caught and most seriously injured — whether by contact with the wheels of the car, or in some other way, may admit of some question. She thinks and testifies that the wheel of the car passed over her ankle, and produced the injury to it. In whatever way the injury may have been received, the evidence shows clearly that it was very serious.

In the midst of the excitement and confusion produced by the lowering of the gates and the obstruction of further progress of the street car, the gates were again raised, and the street car moved on, barely succeeding in escaping collision with the passing train of steam cars. The fault of ,the gatekeeper seems to have been, in not lowering the gates in time to keep the street car from attempting to cross the steam railway tracks, and in lowering the gates when the street car was immediately on the steam car tracks, and thus preventing, for the moment, further advancement. The fault of the street car driver was in the reckless approach to the -crossing, and attempting to cross, when he saw, or should have seen, the near approach of the steam-car train to the -crossing. Without the fault of both the gatekeeper at the orossing and the driver of the street car, it is not at all probable that the accident would have occurred.

As preliminary to the consideration of the questions that relate in common to both the defendants, there are some two or three questions specially raised as applicable to the one or the other of the defendants separately. The first of these is the question raised on the motion in arrest of judgment by The Baltimore and Potomac Railroad Company. This motion is based upon the supposed failure of the plaintiffs to allege in the declaration that the.gatekeeper at the crossing, to whom negligence was imputed, was a servant of The Baltimore and Potomac Railroad Company; and because of the supposed failure of the declaration to aver that the said railroad company was bound by any duty in connection with the gates at the crossing.

The declaration may not be very artistically drawn or full in its averments, but we think there is enough in the averments of the declaration, after trial and verdict, to sustain the judgment for the plaintiffs. The declaration avers that the defendants and each of them, and their and each of their servants and employees, so carelessly and negligently ^conducted themselves, that as the street car approached the crossing, the gatekeeper “who was operating the gates or .guards at said crossing, erected for the purpose of preventing damage to vehicles and foot passengers, negligently allowed the driver of the street car to drive the same,” etc. This averment must be read in connection with and as preliminary to the more general and comprehensive averment that follows, viz.: “That the injuries occasioned to the female plaintiff were caused by the gross carelessness and neglect of said defendants and each of them, their and each of their servants and employees.”

It is a settled principle of pleading, that where there is any defect or omission in a pleading, whether in substance or form, which would have been fatal on a demurrer, yet, if the issue joined (in this case on the general issue) be such as necessarily required on the trial proof of the facts so defectively stated or omitted, and without which it is not to be presumed that the judge would have directed the jury to give the verdict, such defect or omission is cured. 1 Wms. Saund. 228; Township of Lincoln v. Cambria Iron Co., 103 U. S. 412, 416. At most, the supposed defect in the declaration is but a defective statement of a good cause of action, and not the statement of a defective or insufficient cause of action; and in such case the verdict always cures the defect. We do not say, however, that the declaration would have been adjudged bad on demurrer. It was not necessary to make a specific averment in the declaration that the gatekeeper was the servant of the railroad company, or that the latter was bound to maintain the gates. It was sufficient to allege that the injury complained of was occasioned by the negligence of the defendants, or their servants. Bank of Metropolis v. Guttschlick, 14 Pet. 19. And for a like reason there was no error in overruling the objection of the Baltimore and Potomac Railroad Company to evidence offered by the plaintiffs to prove that the gatekeeper was the servant or employee of that company, and for whose negligence that company was liable.

There is also a question made, whether there is not a fatal variance between the facts alleged in the declaration and those in proof, upon which the plaintiffs sought to maintain their right to recover. In the declaration it is alleged that the female plaintiff was pushed and shoved from her seat in the street car, and thrown violently to the ground, and in falling her foot and leg were caught, etc. But in the instruction given by the court, at the instance of the plaintiffs, having reference to the evidence in the cause, the jury were told that if they should find from the evidence that the female plaintiff either jumped off the car, in a reasonable effort to avoid injury from collision, or was pushed or thrown from said car by some other passenger or passengers, endeavoring in a reasonable manner to avoid injury from such apprehended collision, and was thereby injured, the plaintiffs could recover. The plaintiff herself says that she was pushed from her seat and fell on the ground. But whether she fell in consequence of a push received from some other terrified passenger, or in an attempt to save herself by jumping from the car, it would make no material difference in her right to recover. It is not so much the manner of leaving the car as it was the exciting cause that operated upon her, either directly and caused her to jump to save herself, or upon others whose actions were justifiably incited by the impending danger, and, by natural impulsive movement, forced her from the car. In either case, her fall to the ground and injury were the direct consequences of the apparent and impending danger produced by the negligent conduct of the defendants’ servants and employees. There is, therefore, no such variance as should defeat the plaintiffs’ right to recover, if the facts were found to exist, as we must assume they were, according to the hypothesis of the instruction given by the court. It is said by the Supreme Court of the United States that no variance ought ever to be regarded as material where the allegation and proof substantially correspond, or where the variance was not of a character which could have misled the defendant at the trial. Nash v. Towne, 5 Wall. 689. Here, the variance that is supposed to exist was mainly produced by the proof introduced on the part of the defendants, and therefore there was no surprise to them, and it is not pretended that they were in any manner injured by the supposed variance. There, is in reality, no substantial variance between the allegations and proof.

The defendant, The Baltimore and Potomac Railroad Company, requested the court to instruct the jury, that under the pleadings and evidence the plaintiffs were not entitled to recover as against that company; and the other defendant, the Washington and Georgetown Railroad Company, requested that the jury be instructed, that if the injury to the female plaintiff was caused by her being shoved or pushed from the car in the rush of passengers and confusion resulting from the sudden and negligent lowering of the gates at the crossing, as previously described, then there was no evidence that the conduct and management of the street car entered into or contributed to the negligence of the gatekeeper, and the verdict should be in favor of that •Company.

The court below refused to give either of these proposed instructions, and we think very rightly refused to give them. There was evidence before the jury to be considered by them amply sufficient to affect both defendants with liability for the injury, if that evidence was allowed full credence. It was the clear duty of the gatekeeper to keep strict watch, not only for the approach of the locomotive trains, but for the approach of the street cars, and to let down the gates in such full and ample time as would certainly prevent the street cars from entering upon the crossing at a time when there was danger of collision with an approaching locomotive train. In this instance, this duty appears not to have-been performed by the gatekeeper. The letting down the gates upon the street car when the latter was immediately upon the crossing, with the locomotive train in such near approach, was more than ordinary negligence; it would appear • to have been a reckless indifference to the safety of human life. And the conduct of the driver of the streetcar was scarcely less reprehensible. He must have seen the near approach of the train, and therefore the danger of attempting to cross the tracks in front of the locomotive. If he did not see the approaching train, it was because of his negligent failure to keep a lookout for the safety of his passengers. The train was plainly in view, and he did see or could have seen it before he reached the crossing, and in time to avoid the peril of the attempt to cross. His failure to observe the proper precautions before attempting to cross, the tracks of the steam railroad amounted to gross negligence, and a reckless want of care for the safety of his passengers.

Both defendants, by their servants and employees, having been guilty of negligence and thereby contributed to the-production of the injury complained of, are equally liable for such injury. The rule is well established, that where a person suffers an injury from the joint or concurrent negligence of two parties, and both are negligent in a manner which contributes to the injury, they are liable jointly and severally for such injury, and no mere comparative degree of care required, or comparative degree of culpability shown, will affect the liability of either of the defendants. Bunting v. Hogsett, 139 Pa. St. 363; Gulf, etc., RR. Co. v. McWhirter, 77 Texas, 356; Rankin v. Central P. RR. Co., 73 Cal. 93.

In a case like the present, of an action brought to recover for injuries suffered by a passenger while being carried in a public conveyance, the law requires of the passenger that he or she shall exercise reasonable prudence in looking out for his or her own safety; hut the passenger is not bound to use the highest conceivable prudence and caution. In case of an accident to the car or vehicle, or other impending danger, the circumstances of confusion, dismay or terror into which the passengers may be suddenly thrown, are proper to be considered upon the question of contributory negligence of the party injured. An act done by a passenger, in the presence of impending danger to life or limb, for the purpose of escaping such impending danger, may not in the contemplation of law constitute contributory negligence, though it may in fact have contributed to the production of the injury complained of. Stokes v. Saltonstall, 13 Pet. 181. This is illustrated, and is strictly in point to this case, by the case where a passenger in a dangerous emergency jumped from a moving car to save himself, and was injured, although if he had remained in the car he would have escaped unhurt. The party is liable whose negligent conduct has brought about the dangerous emergency under which the injured party acted; the latter party acting according to the ordinary and reasonable motives and impulses that guide mankind under like circumstances. South Cov. & C. Street Railway v. Ware, 84 Ky. 267; Cody v. N. Y. & N. E. R. Co. 151 Mass. 462.

In view, therefore, of the principles of law just stated, and the evidence in the case, the court below was entirely right in refusing to give the instruction asked by the two prayers, to which we have referred, virtually taking the case from the jury as to each of the defendants.

We come now to the instructions granted on the part of the plaintiffs, and to the charge of the court upon the whole case.

By the facts, constituting the hypothesis of the first prayer of the plaintiffs, which was granted as explained by the court, the negligence of both defendants co-operated in producing the excitement and apparent danger that was the immediate cause of the injury. Without the negligence of the one that of the other might have been entirely harmless. Neither could claim exemption from liability upon the ground that the negligence of the other was the more immediate or direct cause of the injury that happened to the female plaintiff. All three of the prayers of the plaintiffs, enumerating the facts upon which the defendants would be liable, were entirely unobjectionable, as explained by the court in its charge to the jury.

Considerable confusion has been introduced into the case, by reason of the separate and adversary instructions sought by the defendants as between themselves — the defendants mutually attempting to place the exclusive blame or liability for the accident the one upon the other. But, according to the principles of liability in such cases, as we have shown, the rulings of the court upon these separate series of proposed instructions were correct, and the general charge upon the whole case was fair, and fully discriminated as to the elements of liability of both defendants.

The court instructed the jury, at the instance of both defendants, that if the female plaintiff voluntarily jumped from the car, as testified to by the witnesses for the defendants, she could not recover; and the jury were also instructed, that while each defendant was bound to avoid danger to the passengers in the street car, neither of the defendants was responsible for the negligent acts or omissions of the other. And, at the instance of The Washington and Georgetown Railroad Company, the jury were instructed, that if the injury of the plaintiff was the result of the negligence of the gatekeeper in the management of the gates, and but for such negligence the injury would not have been sustained by the plaintiff, and that the street car company, through its agents and servants, was not negligent in driving the street car on the steam car tracks, and did not know, and had no reason to believe that the gatekeeper would be negligent, then the plaintiffs were not entitled to recover as against the latter company. This, in view of the undeniable facts, was certainly liberal to the defendant, the street car company.

The court also instructed the jury, at the instance of The Baltimore and Potomac Railroad Company, that if the female plaintiff was pushed or shoved from the car in which she was riding, and that she would not have been injured if she had been permitted to remain in the car, and that an ordinarily discreet and prudent person, under the circumstances, would have and ought to have remained in the car, and that the person who pushed or shoved the plaintiff from the car acted imprudently, indiscreetly and rashly in so doing, and from a rash apprehension of danger which did not exist» thereby causing the injury to the plaintiff, then the defendants were not liable. And so the jury were further instructed, that if the female plaintiff jumped from the car, and that she would not have been injured if she had remained in the car, and that an ordinarily discreet and prudent person, under the circumstances, would have remained in the car, and that the plaintiff jumped from the car imprudently, indiscreetly, and rashly, from an unfounded apprehension of danger, thereby causing the injury, then the defendants were not liable, and the verdict should be in their favor. And in a subsequent part of the charge, the court was explicit in stating the rights of the parties, and the manner of finding the verdict, thus: “ It does not necessarily follow, if you should find one of the defendants guilty of negligence that therefore the other should be excused; both may have been negligent. The question with you must be, has the plaintiff, by a preponderance of all the evidence, shown that both of the defendants are guilty of negligence? If not, has she shown that one is, but failed to show that the other is guilty? In either event the verdict should be for the plaintiff against one or both of the defendants, according as you may find one or both negligent; or, if you find that the proof fails to show either of the defendants negligent, your verdict should be for such defendant.”

We have thus extensively quoted from the charge to show the fairness and fullness with which the questions were submitted to the jury. The charge was full and covered the entire case; and there is nothing in the charge, or in the instructions given, that could likely be misapprehended, or that was calculated to mislead an ordinarily intelligent jury. The defendants received the benefit of all the law to which they were entitled. The questions of the negligence of both the gatekeeper and the driver of the street car were carefully distinguished and discriminated, the one from the other, so that neither defendant should be made liable for the consequences of negligence that was exclusively attributable to the other. The jury have found both of the defendants guilty of negligence in the production of the injury complained of; and for this finding there was ample evidence before them.

There is a question made upon the fourth prayer of the plaintiffs, which was granted, to the effect that its terms were too suggestive of excessive damages. But, assuming that the jurors were men of ordinary intelligence, we do not think they could have been misled by the terms of the instruction. They were simply told, that if they found for the plaintiffs they should award such damages, within the limits of the sum claimed in the declaration, as would fairly and reasonably compensate the female plaintiff for the injuries suffered by her. The jurors must have understood that fair and reasonable • compensation was the limit of the award of damages, under the instruction. The amount of damages laid in the declaration was $30,000, and the verdict was for $12,000; so that there was nothing in the verdict to indicate that the jury acted upon the idea that the amount claimed in the declaration, in any way, furnished the criterion for determining the amount of compensation to be awarded to the plaintiff. We must suppose that the jurors paid heed to the terms of the instruction, and only awarded such sum as, in their judgment, was a fair and reasonable compensation to the female plaintiff for the injury she had received.

Finding no error in the rulings of the court below, the judgment appealed from must be affirmed; and it is so ordered.

Judgment affirmed.

Case Details

Case Name: Washington & Georgetown Railroad v. Hickey

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 4, 1895

Citation: 5 App. D.C. 436

Docket Number: No. 364

Court Abbreviation: D.C. Cir.