
    THE METROPOLITAN RAILROAD COMPANY v. SNASHALL.
    Pleading and Practice; Amendment; Judicial Discretion; Street Railroads; Negligence; Charge to Jury.
    1. It is within the sound discretion of a trial court after a case has been called and the jury sworn, to allow or refuse to allow an amendment to a plea, in order that a special defense may be pleaded in bar to the action; and a refusal of leave to amend will not be disturbed on appeal except for manifest error, which would result in a denial of justice.
    2. Where the object of such a proposed amendment is to bring before a recently established appellate court a question of law previously decided against the defendant by its predecessor, and it does not appear that the trial court refused leave to amend in order to prevent the reopening of the question, such refusal is not reversible error.
    3. The defense of accord and satisfaction may be proved under the general issue in an action of tort, although it is better practice to plead such defense specially.
    4. Whenever there is uncertainty as to the existence of negligence, whether it proceed from a conflict of the evidence, or from the different conclusions which may be reasonably drawn from undisputed facts, the question is one of fact for the jury.
    5. Where a passenger upon boarding a street ear remained on the rear platform because of the crowded condition of the car and was thrown to the ground when the car rounded a curve and was injured, negligence on the part of the company is not to be presumed from the mere happening of the accident; nor can it be presumed from the fact that she fell that the passenger failed to exercise ordinary care. The existence of negligence on the one hand and contributory negligence on the other will depend upon the facts and circumstances surrounding the accident and illustrating its cause.
    6. In such a case, the plaintiff's riding voluntarily upon the platform is not an obviously dangerous act, constituting negligence per se, especially where the proof fails to show that the defendant had a rule to the contrary, but does show that the conductor knew of the crowded condition of the ear when he stopped it to take plaintiff on.
    
      7. Where a trial court in its general charge so explains and qualifies instructions granted for the plaintiff, which although not in themselves objectionable might not by reason of their condensed statement have otherwise been comprehended by the jury, and the charge and other instructions granted for the defendant embrace a principle of law contained in refused instructions asked by defendant, there is no reversible error.
    8. There can be no recovery where the negligence of both parties has concurred in producing an injury, but if one, knowing the situation and consequent danger of the other, might by the exercise of reasonable care under the circumstances have prevented the injury, he is liable.
    No. 255.
    Submitted April 18, 1894.
    Decided June 4, 1894.
    HeariNG on a bill of exceptions by the defendant in an action for damages by husband and wife for personal injuries to the wife.
    
      Judgment affirmed.
    
    The Court in its opinion stated the case as follows:
    This is an appeal brought to review the judgment rendered in a special term of the Supreme Court of the District of Columbia, in an action brought by Caleb Snashall and his wife Emeline against the Metropolitan Railroad Company to recover damages for an injury received by the said Eme-line whilst riding as a passenger upon one of defendant’s horse cars in the city of Washington.
    Emeline Snashall was a resident of Evansville, Wisconsin, and came to Washington in May, 1888, in company with a party of friends, to attend a convention of the Baptist Church.
    The party came by the B. & O. Railroad, and left the cars at the terminal station on New Jersey avenue. Their intention was to proceed at once to a boarding house on Grant Place, to which some of the party knew the way. Mrs. Snashall was a stranger and did not know the way to Grant Place. Defendant’s horse cars run by the B. & O. depot and pass near Grant Place. The car had stopped as usual in front of the depot to receive passengers. There was quite a crowd, and the car was soon filled. The car had started with some of Mrs. Snashall’s party upon it when she signalled it to stop. The car having stopped, she, accompanied by her friend Miss Gillis, stepped upon the platform. Every seat in the car was filled and the aisle was also filled with people standing up. The evidence of Mrs. Snashall and Miss Gillis tended to show that they did not know the extent to which the car was crowded when they stepped upon it. They could not enter, but stood on the platform near the door. It is 330 feet from the B. & O. depot to a point where the defendant’s track made a sudden turn into another street. In turning this curve, of which they had no previous knowledge, Mrs. Snashall and Miss Gillis were both thrown violently from the car, the former having her arm dislocated at the shoulder and sustaining other injuries. Mrs. Snashall had a satchel and small umbrella when she stepped on the car, the former of which she deposited on the floor. She was in the act of getting out her pocket-book to pay her fare when the car made the curve and threw her out. There were some men standing upon the platform who were not thrown off. There was a good deal of testimony to show that the car had been delayed and was running very fast at the time it turned the curve. There was testimony to “a general shaking up of the passengers ” at the time, and to a “ general commotion ” among them. • It was down grade from the depot to the curve, and an unloaded car, if started opposite the depot, would run itself down to and around the curve. Passengers were customarily permitted to stand on the platforms and inside the cars. There was evidence tending to show that the conductor knew that plaintiff and others were standing on the platform. There was testimony tending to show that the conductor and driver had both been discharged immediately after the accident and on account thereof. The driver, who had re-entered the service of the defendant, testified that the usual speed of the cars on the line was about six miles per hour; that he was going no faster than usual; his horses were in a trot. It was his custom to “ slow up ” just before reaching the curve. On this occasion he put on his brakes and “ slowed up. somewhat rounding the curve as usual.” He said further that he reduced speed about one-half, which “ is about the usual rate that any good and careful driver ought to go around a curve.” The witness said that he lost time in waiting near the railroad station and that the custom was to make up all the time they could. The witness did not know that the ladies were on the platform until after turning the curve. The bell was rung and he stopped the car as soon as possible at a point “ one hundred feet or more ” beyond the curve, and looking back saw that two ladies had fallen. He said also that he knew the passengers who came from the station were generally strangers.
    On December 7, 1888, the defendant filed a plea in bar to the action to the effect that plaintiffs were citizens and residents of the State of Wisconsin at the time of the accident and have so continued; that by the law of said State the said Emeline Snashall was capacitated to contract in respect to her separate property and to bring actions in her own name for injuries to her person as if she were sole, all judgments for which inured to her separate use and benefit; that while temporarily in the District of Columbia and before the commencement of this suit, the said Emeline, having the right as aforesaid, entered into a covenant with defendant whereby it is released from any actions or demands against it, and the consideration of said covenant was accepted by her in full discharge, etc. Plaintiff’s demurrer to this plea was overruled and judgment was entered thereon for defendant in the special term. Upon appeal to the General Term this judgment was reversed, and the demurrer sustained December 2, 1890, with leave to defendant to amend within fifteen days upon refunding costs paid by plaintiff in special term. Within the time limited defendant pleaded the general issue. By consent, the depositions of a number of non-resident witnesses were taken on behalf of the plaintiffs. On April 10, 1893, the cause came on for trial, and after the jury had been sworn, the defendant moved for leave to amend by adding another plea, which was substantially the same as the overruled plea as aforesaid. A bill of exceptions was- taken to the denial of this motion. After the evidence was all in defendant moved an instruction to the jury to find for it, which having been overruled, an exception was taken, which embodies all the evidence that was-submitted to the jury.
    At the request of plaintiffs the court gave the following instructions to the jury, to which exception was duly taken:
    “ i. If the jury find from the evidence that the plaintiff Emeline got upon the car of the defendant company from which she fell or was thrown, as alleged in the declaration,, with the consent of the conductor thereof, and that she stood upon the rear platform of the said car with the like consent and without being directed or asked by the conductor to-move from the said platform; that she was ignorant of the existence in the company’s track of the curve in rounding which she fell or was thrown from the car, as described in the testimony, and that the said car was negligently driven around the said curve at an unduly high rate of speed for a car loaded as the jury shall find from the evidence the car in question was loaded, and that by reason of such negligent driving the said plaintiff was thrown from the car and injured, while in the exercise of ordinary care on her part, under the circumstances, in her position, the plaintiffs are entitled to recover in this action.
    “ 2. If the jury should believe from the evidence that there was negligence or the want of reasonable care upon the part of the plaintiff Emeline in boarding the car of the defendant company in its crowded condition (if the jury find it to have been crowded), their verdict should nevertheless be for the plaintiffs, if they further find from the evidence that the conductor and driver, or either of them, knew or by the exercise of ordinary prudence and care must have known her position on the car, and might by the exercise of reasonable care have avoided the injury..”
    The bill of exceptions shows that the court denied defendant’s prayer for the following instructions:
    
      “ 9. The law presumes all persons of adult age and sound mind to be aware of whatever ordinary risk there is in riding standing in a moving vehicle, especially on an outer and unprotected platform, and the plaintiff Emeline is chargeable with such knowledge.
    “ 11. If the jury find from the evidence that the plaintiff Emeline was negligent in taking the position she took on the platform and attempting to ride thereon in the manner she did, and that the accident would not have happened but tor such negligence on her part, then the plaintiffs are not entitled to recover in this action and the jury should find for defendant.”
    In the general charge the court told the jury: “Two things must concur in order for you to find for the plaintiffs. You must find from the evidence that the defendant was negligent, and you must also find either that the plaintiff was not negligent, or, if she was negligent, the negligence on her part was not the proximate cause of the accident; for if she was negligent, and her negligence was deemed the proximate cause of the. accident, the plaintiff cannot recover, although you may believe that the defendant was also negligent.”
    After giving the instructions on behalf of plaintiffs, stated above, the court gave certain others for the defendant (after modifying them slightly), as follows:
    “ 1. The jury are instructed that it is necessary for the plaintiffs to recover in this action to prove by a preponderance of evidence that the defendant was guilty of negligence in operating the car from which the plaintiff Emeline Snashall fell, and that they cannot infer negligence from the single fact of the said Emeline having fallen. But in determining whether there was negligence on the part of the defendant or not the jury will consider all the facts and circumstances shown in evidence, including the fact that the female plaintiff was thrown or fell from the car.”
    “ 2. The jury are instructed that evidence that the car was running rapidly is not, without more evidence, sufficient to establish negligence in the company unless it is also proved that it was faster than safety warranted. But the jury should consider all the facts and circumstances shown in evidence in determining whether there was negligence on the part of the defendant, including the speed of the car at the time of the accident.”
    “ 3. If the jury believe from the evidence that the plaintiff Emeline Snashall voluntarily and without invitation boarded the car from which she fell, in order to be on the same car with her companions, when it was obvious to her, if it was so obvious, that she could not enter said car, and undertook to ride on the rear platform, if she did so undertake or choose, the jury are instructed that she took upon herself all the risks of such position incident to the ordinary operation of the car, with reasonable care by the driver thereof, whether she had actual knowledge of its danger or not, and that if she was thrown or fell from said platform by reason of the ordinary motion of the car and without actual negligence on the part of the company or its servants in operating the same, she cannot recover. But in determining whether the car was driven or managed with reasonable care the . jury should take into consideration the condition of the car as to the load and the place where it was being driven at the time, as well as all other facts and circumstances in evidence.”
    
      “4. If the jury find from the whole evidence that Mrs. Snashall, one of the plaintiffs, voluntarily got upon the rear platform of the defendant’s car on the occasion described in the declaration when it was plainly visible, if it was so visible, and the fact was that the seats in said car were all occupied, if the fact was so, and that the passageway therein was so occupied by passengers that she could not obtain entrance into the car, if it was so occupied, and that the rear platform was also occupied by passengers, if it was so occupied, she took upon herself all the risks incidental to such a position and the defendant is not liable for any injury in consequence resulting to the said plaintiff from any ordinary jolting or swaying of the car while passing around the curve or the place described in the declaration, if the jury shall also believe from the evidence that the car was being driven and managed in a prudent and careful manner at the time of the accident, and in determining whether it was or not the jury should take into consideration all the facts and circumstances shown in evidence, including the condition of the car as loaded, the place and speed.”
    In connection with the foregoing, the court instructed the jury as follows: “You will see, gentlemen, that these instructions which I have read to you submit to you the important question of whose negligence it was that produced this accident. Was it the defendant’s negligence in moving that car too rapidly around the curve, or was it the result of negligence on the part of the plaintiff in placing herself in a dangerous position? If you shall believe that if she was in a dangerous position, standing there, then you have to consider whether, if the car hád been moved as a car loaded as that one was, should have been moved, she would have fallen off. Was the car moved around that curve as a car loaded as that one was loaded should have been moved? If it was moved as slowly as you think was reasonable to move a car loaded as you believe that one was loaded, and Mrs. Snashall fell not because of the rapid motion of the car or the too rapid motion of the car under the circumstances, but because she was in an exposed position and not taking proper care, then she could not recover, because the accident would be the result of her own negligence. But although you may believe that she was imprudent in taking that position, yet if the conductor or driver, or both, knew she was in the exposed position, that she or any one else in the car were in an exposed position, or if they would or might have known or should have known it by the exercise of due care on their part, then the very fact that she was in an exposed position with their knowledge required of them greater care in going around that curve than otherwise would have been required. In other words, you are not only to consider the speed of the car, and whether it went slowly or fast and how rapidly a car might properly go around that curve without being negligent, but you are to consider the condition of this particular car, whether it was loaded heavily, whether there were people standing on the platform, and whether the conductor and driver knew it. You notice that these instructions which have been read to you speak to you of Mrs. Snashall’s knowledge of the curve. I think the only consideration that her knowledge or want of knowledge of that curve can have in the case is as to whether she was surprised or not. ' I think she must be considered to have the general knowledge that every one has who goes into a street car, whether it is a line with which they are acquainted, or a line of which they are ignorant, that in the operation of street cars there are curves,, and that cars shake in going around them. But in that connection and in connection with her want of knowledge of this particular curve, it is proper for you to consider whether the car was going rapidly and whether she would naturally have supposed they were approaching a curve at a rapid rate. If the car approached that curve slowly and was not going so rapidly as to make it negligent on the part of the company to be moving so rapidly, then I do not think her want of knowledge of the curve would play any part in this case at all. On the contrary, if they were going very rapidly, or more rapidly than it was safe to go in approaching a curve, then the very fact that they were going rapidly might throw her off her guard, and, not expecting to go around a curve at such a pace as that, she might have been surprised and thrown off. These are all contingencies for you to consider in the case.”
    The jury returned a verdict for plaintiffs for $1,500, which was approved by the court and judgment entered thereon, after defendant’s motion for a new trial had been overruled.
    
      Mr. Nathaniel Wilson and Mr. Wm. G. Johnson for the plaintiff in error.
    1. The plea of release by the wife was a good plea. By the common law, where a wife is injured, the tort-feasor is subject to two actions — one by the husband alone, in which he recovers every possible damage to himself, namely, for expenses in healing the wife, loss of her society and services; —the other by husband and wife, in which they recover every possible damage to the wife, namely, for her physical and mental suffering and injuries. Both those actions were brought and prosecuted to judgment for this alleged tort.
    The very existence of these two forms of action for the different injuries resulting to the different parties from the same tort, in principle precludes the idea of any right in either party to damages for the injury to the other. But as, by the common law, no wife could have a property right free from the control of the husband, although the law did not allow the husband alone to sue and recover a profit out of the physical and mental anguish of his wife, still, when reduced to possession, those damages, which were so far the wife’s as to require to be sued for in her name, were thereupon, like any other property, subject to his disposition and control.
    This right of action for tort is a chose in action, and as plainly personal property as goods or any other property capable of physical possession. Darlington on Personal Property, 7-8; 2 Kent’s Com. (13th ed.), star page 352. By the laws of this District, “ the right of any married woman to any property, personal or real, . . . shall be as absolute as if she were unmarried.” (R. S. D. C. Sec. 727.) And by the same laws she has, with respect to such property, the right to “contract” and “sue!' (Sec. 729.) By the laws of Wisconsin, the domicil of the plaintiffs, she has the same rights, and “ any judgment in such action [for injury to her person] is her separate property and estate.” (Defendant’s plea.) Of course, before judgment, the husband could exercise no control of this chose in action, as, even without the statutes, a husband would have no rights in choses in action until reduced to possession, either by suit, in which case, by the terms of both the local and the Wisconsin statutes, it became her separate estate, or by assignment. But a chose in action for a personal injury was not and is not assignable. Comegys v. Vasse, i Pet., 193, 213. So that under no view of the law could the husband have any interest in the claim. The law makes no exception. It provides for her exclusive right to “any property,” without qualification. That such a chose in action is, under acts relative to the separate estate of married women, properly subject to their disposition and control, has been frequently adjudged. R. R. Co. v. Dunn, 52 Ill., 260; Trader v. Lowe, 45 Md., 14; Berger v. Jacobs, 21 Mich., 215, 220; Musselman v. Galligher, 32 Iowa, 382, 387-8. Having, as appears by the record, released her demand upon a satisfactory consideration, it is both inequitable and immoral that she should be permitted to set up her co-verture as a ground for recovery against her solemn covenant.
    2. The evidence of the plaintiff clearly showed that the fact that the car was crowded was obvious to the plaintiff, and should have been known; that it was in fact known to her, and that she boarded the calr, not upon any assurance by the company that it was a safe place to ride, but for her own purposes took the chances of that position in order not to be separated from her friends. Having, therefore, placed herself in a place of danger, she was bound to take the consequences of that situation. One cannot assume a position of danger and then complain of injury from negligence which could cause no injury except to one in that dangerous position. R. R. Co. v. Jones, 95 U. S., 439. The plaintiff having placed herself in this position of danger, there was requisite some proof of negligence by the company with respect to her position, that is, that the special danger to which the party had placed herself was known to them, and that there was some special care required of them in consequence, which they failed to exercise, and by reason whereof the accident was caused. R. R. Co. v. Geis, 31 Md., 357.
    
      Mr. Henry E. Davis and Mr. J. J. Darlington for the defendants in error.
   Mr. Justice Shepard

delivered the opinion of the Court:

1. The right to permit an amendment to the defendant’s •pleading, after the case had been called and the jury sworn for its trial, in order that a special defense may be set up in bar of the action, is a matter within the sound discretion of the trial judge, and his refusal of leave will not be disturbed save for manifest error which would result in a denial of justice. There is nothing in the record to show any special or particular reason or excuse for deferring the application for leave to amend to this time.

The amendment, if allowed, might have led to a postponement of the trial, though doubtless a demurrer to the amended plea would have been entered and sustained in obedience to the decision of the General Term upon the demurrer to the original plea, which was substantially the same in form. It now appears that the real object of the proposed amendment, though not disclosed below, was to bring that decision of the General Term before this court (the law creating which had taken effect the week before) for review, by reopening the question in this way. As it is not made to appear that the court below refused the leave to amend upon this ground, we do not feel called upon to re-' open the question. Moreover, had it been the express purpose to reopen the question and force a decision in the court below, the evidence of accord and satisfaction might have been offered under the pleading as it stood. Whilst it is unquestionably the better practice to plead this defense specially, yet it is probable that under the general issue the same defense might have been proved. This seems to be the rule at common law in actions on the case, and we are advised of no decision of the courts of this jurisdiction to the contrary. 2 Greenleaf on Ev., Sec. 29; 1 Chitty Pl., 478-491; Bird v. Randall, 3 Burr., 1353.

2. There was no error in refusing to instruct the jury to return a verdict for the defendant. From the evidence, as shown in the record, it could not be fairly said that “ the conclusion follows as matter of law that no recovery can be had upon any view that can be properly taken of the facts the evidence tends to establish.” Whenever there is uncertainty as to the existence of negligence, whether it proceed from a conflict in the evidence, or from the different conclusions which fair-minded, reasonable men may. draw from undisputed facts, the question is.one of fact and must always be submitted to the jury. Gardner v. R. R. Co., 150 U. S., 349; Wash. Gas L. Co. v. Poore, ante, p. 127; R. R. Co. v. Carrington, ante, p. 101.

Let it be granted that the evidence of defendant’s negligence is not of a thoroughly satisfactory nature, and that it is not free from doubt that plaintiff’s injury did not proceed from her own want of care; still there was direct evidence upon these issues and their determination depended upon the credibility of the witnesses, the weight to be given to their testimony, and the reasonableness of the inferences to be drawn from the established facts. Under the circumstances of this accident, there having been no derailment, no collision, no failure of the means or appliances for transportation, no presumption of negligence on the part of the carrier could be indulged from the mere happening of the accident itself. Transportation Co. v. Downer, 11 Wall., 129. Nor is it to be presumed from the mere fact of plaintiff’s' fall from the car that she did not exercise ordinary care. The existence of negligence on the one hand, and of contributory negligence on the other, is to be established by reasonable inference from the facts and circumstances surrounding the accident and illustrating its cause, and not from the mere happening thereof. It has been well said by the Court of Appeals of Maryland: “That a party will act with due care both with reference to his own safety and the safety of others, is a natural presumption to be indulged in in all cases, until overcome by proof to'the contrary.” R. R. Co. v. Geis, 31 Md., 357.

As will be seen in the statement of the case, the driver of the car admitted that due care required the speed to be reduced at least one-half in making the turn, assuming, at the same time, that the ordinary rate between such places was about six miles per hour. This would have been quite slow. There was testimony on behalf of the plaintiff to show that the car ran rapidly, and without any reduction of speed at the curve. The sole ground, then upon which the court could have taken the case from the jury would have been upon the presumption of the contributory negligence of the plaintiff, from the fact that the platform upon which she voluntarily attempted to ride was an obviously dangerous place. We are not to be understood as denying that there may be circumstances in which — especially upon regular steam railways — where there is a rule forbidding it, and where there is no recognition of the right and no occasion for doing so, riding upon the platform might raise a presumption of negligence on the part of the passenger, which, if it contributed materially to the accident, would exempt the carrier from liability. But be that as it may, to hold that under the circumstances of this case plaintiff’s voluntary riding upon the platform was an obviously dangerous act, constituting negligence per se, would be against reason and common experience as well as opposed to weighty authority. R. R. Co. v. Donovan, 94 Ala., 299; Crissey v. R. R. Co., 75 Pa. St., 83; R. R. Co. v. Walling, 97 Pa. St., 55 ; Meesel v. R. R. Co., 8 Allen, 234 ; Maguire v. R. R. Co., 115 Mass., 239; Burns v. R. R. Co., 50 Mo., 139; Nolan v. R. R. Co., 87 N. Y., 63.

It is a matter of common observation, of which courts may be supposed to take notice, that street car companies not only permit, but sometimes seem to encourage, passengers to ride upon the car platforms, cars being often stopped when filled inside to take on additional passengers. There was no proof that the defendant had a rule to the contrary. The act of stopping the car when crowded for plaintiff and her companion to get on was in accordance with the common practice. The evidence tends to show that the conductor knew the condition of the car when he stopped it to take them on, and that they would be compelled to stand on the platform until such time, at least, as other passengers might depart and thereby make room for them in the car. From this common practice, it would seem that neither the owner nor the operators of the car, nor the public generally, regarded the act of riding upon the platform as obviously dangerous, and it would be a harsh and unreasonable rule of law that would declare it to be so notwithstanding this common practice and general agreement of opinion.

3. The charge of the court, including the instructions given at the request of each party respectively, presented the law of the case, in all of its phases, with due regard to the rights of each. It was as favorable to the defendant as it had any right to demand. The instructions given at the request of the plaintiff were not in themselves objectionable, though, by reason of their condensed statement, they might not have been readily comprehended by the jury in all their bearings. But the court, not only through the several instructions given at the request of the defendant, but also through further elaboration in the general charge, so explained and qualified them that the jury could not possibly have been misled by them in any respect. The refused instructions asked by defendant, upon which error has been assigned, in so far as they contain a principle applicable properly to the facts of the case, are embraced in other instructions given at the request of defendant and in the general charge.

We deem it entirely unnecessary to consume time with an attempted analysis of the charge and discussion of its elements. It is set out with great fullness in the preliminary statement of the case, where it speaks for itself. Its general soundness is sustained by the principles announced in the discussion of the sufficiency of the evidence to warrant its submission to the jury, under the next preceding assignment of error, which is the main point of defendant’s contention.

There is, however, one proposition involved in the second special prayer of the plaintiff, and also the general charge which, in view of the argument made thereon, it may be proper to notice briefly. The instruction was substantially to the effect that, though the plaintiff may have shown a want of reasonable care, in getting upon the car in its crowded condition, and in attempting to ride upon the platform thereof, still this would not relieve the defendant from liability if, knowing her situation and consequent danger, it might, by the exercise of reasonable care under the circumstances, have prevented injury to her. This instruction does not infringe the general rule, itself well recognized elsewhere in the charge, that there can be no recovery where the negligence of both parties has concurred in producing the injury. It is a qualification of this general rule, applicable to the facts of the case, which has the sanction of the highest authority. Inland and Seaboard Coasting Co. v. Tolson, 139 U. S., 551 ; and cases cited, p. 558; R. R. Co. v. Geis, 31 Md., 357; see also R. R. Co. v. Didzoneit, 1 App. D. C., 482.

There being no error in the record, the judgment must be affirmed, with costs to the appellees ; and it is so ordered.  