
    Samuel J. Andrews vs. The Capitol, North O Street and South Washington R. R. Co.
    At Law. No. 16,505.
    5 Decided December 2, 1882.
    
      1 The Chief Justice and Justices Cox and James sitting'.
    1. Where there is abundant standing room inside of a street car, in which there are pendent straps whieh a passenger may hold while standing, he is guilty of contributory negligence who rides npon the platform, and if an injury result to him, which would not have occurred had he been in the inside of the car, he cannot maintain an action for such injury.
    2. In an action to recover damages for injuries sustained while riding on the platform of a street car, the court will presume, in the absence of evidence to the contrary, that the car was a good one.
    STATEMENT 0E THE CASE.
    Motion for judgment on the following special verdict:
    “ We, the jury, duly impanelled and sworn to try the issue joined in tbe above entitled cause, find the following to be the facts in the case, as made by the plaintiff and defendant, to wit:
    “ The defendant is a corporation created by act of Congress, operating a street railroad in tbe city of Washington.
    “ On the evening of the 20th of August, 1876, the plaintiff hailed one of the defendant’s cars, which, answering his call, stopped on the corner of Twelfth and E streets, northwest, in the city of Washington. The plaintiff stepped npon the rear platform, where he stood a few seconds, and then advancing to the door, which was open, looked in, as though searching for a seat, but seeing none he stepped hack on the platform. The car continuing its course east' on E street, the driver rang his bell to remind the plaintiff of his fare. He thereupon commenced feeling in his vest pockets for it, and having found it stepped forward, and had one foot within the car. He had hold of the jam of the door with one hand and held his fare in the other, and while hesitating whether to pass up his fare or to go forward with it himself, the car struck the curve at the corner of Eleventh and E streets, where the road changes its course from east to north, producing a jar, which caused the plaintiff' to be thrown backwards upon the railing of the rear platform, and from thence to the ground, and so seriously injured as to be permanently disabled. The car, at the time of the accident, was going at a medium rate of speed, which was not slackened at the curve.
    “ The cars upon the defendant’s road, like those of most other r'oads in this city, have no conductors or agents inside the car to collect the fares. The driver has exclusive control of the car, but is not allowed to receive fares, and the passengers are required to deposit their fares in a box at the front end of the car.
    “ The plaintiff' had frequently ridden upon the defendant’s cars, aud was familiar with the streets where the accident occurred. The car was from twenty to thirty seconds in going from where the plaintiff got'aboard to the curve.
    “The seats inside were all comfortably filled, so'that the plaintiff could not have gotten a seat, without room had been made for him by the passengers sitting closer together. With the exception of one w'hite lady aud gentleman, the passengers were all colored persons. They were orderly and well behaved.
    “ There was plenty of room for the plaintiff' to have stood in the aisle of the car, and there were straps pendent from the roof, or from rods running lengthwise of the car near the roof, which wei’e intended for standing passengers to hold on to.
    “There were no standing passengers inside the car. The driver knew that the plaintiff was riding on the platform, and made no objection to it. Passengers sometimes rode upon the platforms of the defendant’s cars, and no objection was ever made to it by any one of the officers or agents of-the company. After this accident the defendant caused the rear platform to be removed from all their cars and substituted a single step to enable passengers to get into and out of the cars. The former platforms were the same as are usually attached to street cars, and were designed only for the convenience of passengers in entering and leaving the cars. No person inside the car was injured at the time of the accident to the plaintiff.
    
      “ The foregoing facts considered, we, the jury, say that we are ignorant in point of law on which side we ought to find the issue ; and if upon the whole matter the court shall be of opinion that the issue is proved for the plaintiff, we find for the plaintiff accordingly, and assess his damages at twenty-six hundred dollars besides costs; but if the court be of an opposite opinion, then we find for the defendant.’?
    Under the 99th rule of court the plaintiff moved the court in General Term for judgment on this special verdict;
    S. S. Henkle for plaintiff:
    It is settled by the special verdict, that the car striking the curve produced a jar, which caused the plaintiff to be thrown off and consequently injured; and the permanent injury shows that the force which threw him off must have been violent. It is perfectly certain if the driver had slackened the speed of his horse at the curve to a walk, the accident would not have occurred.' Is there any escape from the conclusion that the failure of the driver to slacken his speed at the curve was negligence ? In Stokes vs. Saltenstall, 13 Pet., 190, the Supreme Court of the United States says : “ But although he (the carrier) does not warrant the safety of the passengers at all events,-yet his undertaking and liability go to. this extent, that he or his agent, if as in this case, he acts by agent, shall possess competent skill ; and that, as far as human care and foresight can go, he will transport them safely.” The suit was against the proprietors of a stage coach for an injury to a passenger. And the doctrine of this case has been followed in all the cases. Peck vs. Neil, 3 McLean, 22; Muer vs. Penn, R. R. Co., 64 Penn. St. R., 225; Shearman & Redfield on Negligence, Sec. 266, and cases cited.
    Is the defendant chargeable with contributory negligence? If not he. is clearly entitled to a judgment.
    I maintain that it is not contributory negligence for a passenger upon a street car to ride upon the rear platform, if there are no vacant seats inside the car, and he is there by the permission or with the knowledge of the agent of the company, who makes no objection to it.
    In the case of Messel vs. Lynn & Boston R. R. Co., 8 Allen, 234, the plaintiff was injured while riding upon the front platform of a street car. The car was full, and he ivas told to go upon the platform by the conductor. The driver accelerated his speed in turning a curve, and the plaintiff was thrown off and injured -, held that it is not necessarily unsafe to ride upon the front platform of a street car, and the plaintiff was not bound to know that the driver would go fast around the curve. Tie should have slackened his speed, and not doing so ivas negligence, and standing on the platform was not contributory negligence. And see to same effect, Spofford vs. Harlow, 3 Allen, 176; Burns vs. Bellefontaine R. R. Co., 50 Mo., 139; Germantowm R. R. Co. vs. Walling, 97 Pa. St., 55; Maguire vs. Middlesex R. R. Co., 115 Mass., 239; Spooner vs. Brooklyn City R. R. Co., 54 N. Y., 230. The foregoing are all cases of injuries to passengers upon cars and other vehicles' drawn by horses. The following are cases of injuries to passengers upon cars drawn by steam: Edgerton vs. N. Y. & Har. R. R. Co., 39 N. Y., 227; Congrove vs. Harlem R. R. Co., 6 Duer, 382; Willis vs. Long Island R. R. Co., 34 N. Y., 670; Zemp vs. W. & M. R. R. Co., 9 Rich. Law, (S. C.), 84.
    The doctrine deduced from the cases is—
    1st. That riding upon- the platform of either a horse or a steam car is not per se negligence, but is a question for a jury-
    2d. That riding upon the platform of a horse car certainly ^ by the permission or with the knowledge and without objection of the agent of the company in charge of the car, is not negligence.
    3d. That it is the duty of a railroad company to furnish its passengers seats within the car, and if it does not a passenger may ride upon the platform, and if injured by the negligence of the carrier while so doing, this fact is not available in defence as contributory negligence.
    4th. Although the company may provide pendent straps from the roof of the car for passengers standing in the aisle to hold on to, the company cannot require, and should not permit, passengers to stand in the aisle, as the other passengers have a right to have the aisle kept open and unobstructed.
    5th. As a matter of fact the rear platform of a horse car is not ordinarily a place of any more danger than the inside of the car, and it only becomes so when overcrowded, or by the negligence or misconduct of the driver.
    6th. The railroad companies give the public to understand that the platforms of their cars are safe places to ride upon, and habitually stop for passengers and invite them to get on so long as there is standing room upon the platform or steps, and it would be strange indeed, if, when a passenger is injured while riding upon the platform, by the negligence of the company, it should be permitted to set up this fact as contributory negligence.
    In this case the seats were all full. The driver knew this, and yet stopped for the plaintiff to get on. He knew he was riding upon the platform and made no objection to it. They were in the habit of carrying passengers upon their platforms. Upon these facts how can the defendant escape liability?
    It may be said that the plaintiff' knew the streets and should have looked out for the curve. The reply is, that the plaintiff had a right to rely upon the prudence and care of the driver, and it was not his duty to anticipate that he would go whirling round the curve at such speed as to throw him off.
    Hiñe & Thomas for defendant :
    The plaintiff predicates his right to recover against defendant in this action upon the carelessness, negligence, and unskillfuluess of defendant’s driver — the bad condition of the track where the accident occurred, and the absence of negligenee or want of care on his part. The special verdict is singularly silent on the question of the driver’s unskillfulness and the bad condition of the track. The findings do not even inferentially' show that defendant’s track was in any worse condition at the point where the accident occurred than the curve necessarily made it. May we not, therefore, assume that the driver was careful and skillful, and that the track was in good condition? The averment of the declaration is: “That by reason of the carelessness, negligence, and unskillfulness of the driver, and the bad condition of the railway at or near the corner of E and Twelfth streets, and without any carelessness or negligence on his part, he (the plaintiff') was with great violence thrown from said car,” &c. These were certainly conditions most material to the plaintiff’s right to recover — their absence from the findings of the special verdict is not to be accounted for on any other hypothesis than that they were not 'true. '
    
    It does appear that the plaintiff had frequently ridden upon defendant’s cars, and was familiar with the street where the accident occurred. May we not add, and was used to street car travel generally, and knew of the curve in the track of defendant’s road at the corner of Eleventh and E streets, and that common observation had taught him that it was peculiarly dangerous to stand on the outside platform of a street car when it was rounding a curve?
    The special verdict shows clearly that the plaintiff' would have sustained no injury had he remained inside the car. His conduct was such that he could not recover had he received like injuries while traveling on a steam railway. Certainly, then, he cannot recover for injuries received, as in this case, on a street railway where the cars are drawn by horses, and the incidental dangers are few compared to the other mode of travel.
    By voluntarily taking a stand and remaining on the outside platform of the car while it was in motion and rounding a curve, when there was plenty of room for him to have stood on the inside, the plaintiff committed such a flagrant act of contributory negligence as disentitles him to recover for the injuries he sustained. He must charge his injuries to his own want of care.
    “The rule is without exception,” says Mr. Redfield in his note to McClurgs’ Case (56 Pa., 294), 2 Am. Ry. Cases, 552, “ in all the well considered cases, that the plaintiff' cannot recover for any damages he may sustain where his own want of ordinary care contributed directly towards it, however great or extreme may have been the negligence on the part of the defendant.”
    See the case of the Railroad Co. vs. Jones (5 Otto, 439), which was a much stronger case in every particular than this. And see, also, Hickey vs. Boston & Lowell R. R. Co., 14 Allen (Mass.), 429; Todd vs. Old Colony R. R. Co., 3 Id., 18; Gaverett vs. M. & L. R. R. Co., 16 Gray (Mass.), 501; Lucas vs. N. B. & T. R. R. Co., 6 Id., 64; Ward vs. R. R. Co., 2 Abb. (N. Y.) Pr. N. S., 411; Galena & Chicago Union R. R. Co. vs. Yarwood, 15 Ill., 468; Doggett vs. Illinois Central R. R. Co., 34 Iowa, 284; Pittsburg & Connellsville R. R. Co. vs. Andrews, 39 Md., 329; Geis’ Case, 31 Md., 266; Pittsburg & Connellsville R. R. vs. McClurg, 56 Pa. State, 294; Penna. R. R. Co. vs. Zebe and Wife, 9 Casey, 218.
   Mr. Chief Justice Cartter

delivered the opinion of the court:

The plaintiff brings this suit to recover damages for injuries received by reason of being thrown from the rear platform of the car of the defendant, a street railroad company. By a special verdict of a jury, the extent of his damages are fixed at $2,600, aDd’ he is entitled to recover this, provided the facts in the case form the predicate of action.

The declaration charges, in substance, that the defendant corporation, in its carelessness and through the heedlessness of its driver, and by reason of insufficiant facilities for carrying passengers safely, caused this injury, and that the plaintiff’ made no contribution to this accident.

The allegations of the declaration are denied by the defendant, and, issue being joined we are invited to a consideration of the law governing the facts of the case as set forth in the special verdict. The verdict shows that the car was travelling at ordinary speed in the ordinary way. There is nothing reflecting upon the skill of the driver, or attributing fault on his part. The statement of facts also advises the court that the car was a good one, for in default of proof to the contrary it will be presumed to have been so. Now we are admonished by authority, that while public carriers are chargeable with strict care and-circumspection in the preservation of the safety of passengers, they are not insurers in any event of the passenger’s life and limbs. Here is a car travelling at an ordinary rate of speed, a good car, with a good driver, and, unless the law underwrites the life and safety of every passenger riding on a railroad car, these facts constitute a full answer to the plaintiff. The law does not contemplate that these corporations shall take the keeping of a man’s discretion into their hands. If the plaintiff saw fit, under the facts found in this verdict, to stand on the platform, he took with him the perils of the platform, and cannot recover.

The judgment, therefore, must be for the defendant.

Mr. Justice James

said :

I desire to add a word as to the defendants’ part in this case. I concur with the view that the plaintiff' was responsible, or rather that he lost his right of action by contributing to the result; but I have not the least doubt that the defendant company was in fault. The special verdict found as a fact that the car was going around a curve at the same speed at which they ordinarily travel in a straight line. That is too fast to go around a curve, but it is said to be necessary from the construction of the car and from the fact that they have to go around pretty rapidly with one horse ; so that the rapid speed which they keep up in rounding a curve is largely attributable to the arrangement which they have chosen to make so as to use only one horse. I think, therefore, that the defendant was also in fault; but the plaintiff ought not to recover when his own act contributed to the accident. It is for this reason that I concur in the judgment.  