5 Wash. 466 | Wash. | 1893
The second paragraph of the complaint in this action was as follows:
‘ ‘ That said plaintiff, on or about the 6th day of February, 1891, sought, solicited and asked for passage on one of the cars of the said company on its said road, from Fremont to Seattle; that said plaintiff sought, solicited and asked for passage of said company on said car by motioning and signalling to the ‘motor-man’ operating said car; that, at the time said plaintiff signalled to said motor man as aforesaid, said car was in rapid motion at some distance from said plaintiff, and approaching said plaintiff; that said motor man saw said plaintiff standing near said track signalling said motor man to stop said car, and that said motor man, in obedience to said signal, diminished the speed of said car to a rate of speed near approaching a stop, and that while said car was moving at the rate of speed last aforesaid, said plaintiff with due care and caution undertook to board the front platform of said car, and that while said plaintiff was in the act of boarding said car as aforesaid, and before said plaintiff had fully landed on the platform of said car, said motor man, suddenly and without warning or notice to said plaintiff, and negligently and carelessly, and willfully and maliciously set said car into fast and rapid motion, throwing and causing said plaintiff to fall beneath said car, with his leg under the front wheel thereof, and that when said plaintiff fell under said car, with his leg under the wheel of said car and across the rail of said track as aforesaid, the said wheel of said car caught, ran over and mangled the leg of said plaintiff so that, by reason of said injury, said plaintiff, of necessity, had to have his leg amputated, severed and cut off from said plaintiff’s body.”
At the trial, the only evidence to sustain these allegations was, in the first place, the statement of the plaintiff and several other persons, some of whom were in the car, and others who were in the neighborhood, that plaintiff stood along side of the railway track, in a cut made through a bank of earth which was several feet high, until the car
The first ground of error alleged is, that the court permitted the respondent to elicit from several witnesses answers to questions like these:
“1. State to the jury whether this place where the China-man attempted to board this car was a safe place in your opinion, a safe place to board a car in motion.
‘ ‘ 2. What would you say as to the manner in which a person should act if they wanted to board a car at that place, to get on the front platform?
“3. You may state to the jury whether, at the time this Chinaman jumped to get aboard the car at that place, it was a safe and careful thing for him to do. ’ ’
The next objection is to the 10th instruction that—
“If the jury believe from the evidence that the plaintiff attempted to board the front platform of the car while the same was running at its ordinary rate of speed, then the plaintiff was guilty of contributory negligence, and if you so find, your verdict will be for the defendant. ’ ’
The argument which appellant makes in support of his objection to this instruction is defective for the reason that it admits that the contention of the appellant was that the car was not at the time of his accident running at its ordinary rate of speed, but at a slower rate at which it would not necessarily have been negligence for the appellant to attempt to get upon it.
It is not always negligence per se for a person in good physical condition and unincumbered to attempt to get upon a moving street car. Eppendorf v. Brooklyn, etc., R. R. Co., 69 N. Y. 195; Briggs v. Union St. Ry. Co., 148 Mass. 72 (19 N. E. Rep. 19); Corlin v. West End St. Ry. Co., 154 Mass. 197 (27 N. E. Rep. 1000); Morison v.
The twelfth instruction was not open to objection. The portion complained of informed the jury that it was the. duty of a person seeking to take passage on a street car to make such signal as would attract the attention of the person in charge, and that if, without signalling, he attempted to board the car while in motion, and was injured, he could not recover. This is obviously true, since, under such a state of facts, there could be no negligence on the part of the person in charge.
Several requests to charge made by the appellant are all open to the objection that they assume facts concerning which there was no testimony in the case, and are appar
We find no error, and therefore affirm the judgment.