
    CONTRIBUTORY NEGLIGENCE IN ALIGHTING FROM A STREET CAR..
    [Common. Pleas Court of Hamilton County.]
    Albert Wehrenberg v. The Cincinnati Traction Company.
    Decided, June, 1904.
    
      Negligence — Street Railways — Notifying Motorman of Intention to Alight — Pleading—Inference of Contributory Negligence in the Petition — Ground for Demurrer, "When.
    
    1. In an action for damages against a traction company, where the petition avers that the plaintiff was hurt through the negligent operation of the car by the motorman while the plaintiff was in the act of descending from the step of the ear, and it also appears from the petition that the plaintiff notified the motorman instead of the conductor of his intention to get off, but it is not stated why he took this unusual course, the petition discloses contributory negligence on the part of the plaintiff; for a passenger ought to know that a motorman must give his attention to the operation of his car and not to the getting off of the passengers.
    2. When a person knowingly incurs probable danger on a public conveyance, without having any reason for so doing, and is then hurt by reason of the operation of the car without regard to his safety, he is guilty of contributory negligence.
    3. When the allegations of a petition in an action because of negligence suggest the inference that the plaintiff may have been guilty of contributory negligence, the petition is subject to demurrer unless it also contains the allegation that the injury was caused without the fault or negligence of' the plaintiff.
    4. It is a sufficient allegation of negligence on the part of the defendant to state that he negligently committed the act which led to the injury for which the suit is brought. It is not necessary to aver all the minor circumstances which together go to establish the defendant’s negligence.
    Littleford, J.
    A general demurer to the petition was filed in this case. The petition alleges that the defendant is a corporation, operating an electric street railway in the city of Cincinnati, and then contains the following averment:
    ‘ ‘ That on the said date plaintiff was a passenger on one of the cars of the route aforesaid, having paid his fare required by the said company to be paid. That some time before the car on which, he was riding approached said Forest avenue, his destination, he, the said plaintiff, notified the motorman in charge of said ear to stop at said Forest avenue, and that thereupon the motorman replied, “All right,” or words to that effect; that said plaintiff then made ready to alight, said car having come to the north side of said Forest avenue, and was in the act of descending from the step of said car when the motorman, the servant of the defendant company, negligently controlled and operated the power controller and the brake of said car, thereby precipitating said plaintiff to the street, throwing him under the wheels of said car, causing the said car to run over the right arm of the said plaintiff, and causing the injuries to the said plaintiff herein complained of.”
   It appears from the petition that-the plaintiff notified the motorman of his intention to alight instead of notifying the conductor. There is no reason given why he took this unusual course. It can not be told from the petition whether the defendant undertook to alight from the front or rear of the car, nor can it be told whether the ear started too soon while he was in the act of stepping off or did not stop for him at all. The allegation merely is that he was thrown while he was in the act of stepping off the car.

The court is of the opinion that on its face the petition discloses contributory negligence on the part of the plaintiff.

If the plaintiff undertook to alight from the rear end of the car after notifying the motorman of his intention to get off, he ought to have known that the motorman could not be looking after his safety; and if the petition means that he went to the front end of the car to get off from the inside step (which is the open side of the vestibule), it was equally out of the question to expect the motorman, whose attention ought to be entirely upon the management of his car, to look after his safety. Whether he was thrown while attempting to get off the car while it was in motion, or because the car started too soon, makes no difference; for in either case he had reason to apprehend danger in depending upon the motorman to operate the ear with due regard to his expressed intention to alight.

“But where there.is danger and the peril is known, whoever encounters it voluntarily and unnecessarily, can not be regarded as exercising ordinary prudence and does so at Ms own risk.” Schaefler v. The City of Sandusky, 33 O. S., 246, 249.

A. Julius Freiberg, for plaintiff.

George P. Stimson, for defendant.

In other words, when a person knowingly incurs probable danger on a public conveyance without having any reason to do so and is then hurt by reason of the operation of the ear without regard to his safety, he is guilty of contributory negligence in the opinion of the court, and it will be necessary for the plaintiff in this case to either state the facts more fully so as to show that he was not guilty of contributory negligence, or comply with the rule laid down in Nolthenius v. Street Railway Company, 40 O. S., 376. That rule is to the effect that when the allegations of a petition suggest the inference that the plaintiff may have been guilty of contributory negligence, it is necessary to allege that the injury was caused without negligence on his part.

The allegation that the motorman “negligently controlled and operated the power controller and the brake of said car” so as to throw the plaintiff to the street, is a sufficient allegation of negligence on the part of the motorman. It is a sufficient allegation of negligence on the part of a defendant to state that he negligently committed the act which led to the injury for which the suit is brought. It is not necessary to aver all the minor circumstances which together go to establish the defendant’s negligence. Davis v. Guarnieri, 45 O. S., 470, 485; Railroad Co. v. Janeski, 12 C. C., 685.  