
    (First Circuit—Hamilton County, O., Circuit Court.
    Jan’y Term, 1894.)
    Before Smith, Swing and Cox, JJ.
    Schwartz, Adm’r v. The Cincinnati Street Railway Company.
    
      Negligence causing death — To stand on the step of a street car, although entrance on that side is barred by a chain, is not negligence per se.
    
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

This was.an action in the court of common pleas for damages for the killing of one Schwartz. At the conclusion of plaintiff’s evidence defendant moved the court to direct the jury to return a verdict for the defendant, which motion the court granted. To this action of the court error is prosecuted in this court.

The facts are substantially as follows: Schwartz boarded defendant’s car while in motion, getting on the front step of the rear car. There was a chain suspended across the entrance, fastened with snaps so that i’t could be loosened and fastened by employes or passengers. He rode a square in the same position that he took upon boarding the car. By reason of a misplaced or defective switch, the car upon which Schwartz was riding left the track upon which it was going, and was brought in collision with one of defendant’s cars going in an opposite direction upon a parallel track on the same street, and Schwartz was killed. The car was crowded, but there was room further up on the front steps and platform, although other passengers were there. There were other facts, but we do not deem it necessary to mention them* The question is, can the court say, without having submitted the case to the jury, that Schwartz’s negligence contributed to the proximate cause of the injury ?

Courts will take judicial notice of the way streetcars are run. It is a matter of universal knowledge in a city like this, where a large portion of its citizens daily ride in street cars, that it seems to be taken for granted by the street car companies that the traveling public know how to act while boarding and riding in the cars; for, aside from gates, chains and fenders on the side of cars next to cars on parallel tracks, and the printed notice, Don’t talk to Motorman,” we know of no information conveyed to the public as to their conduct.

The gates, chains and fenders on the side of the ear next to a parallel track can convey but this information. The gate and chain at the steps is simply an arrangement to prevent passengers from getting on and off on that side of the car. It is evidently a reasonable and necessary precaution on the part of the company. The distance between the tracks is not great, and passengers would be in constant danger from a passing car in the opposite direction, and frequently the passengers would have no knowledge of the approach of this car.

The fenders along the sides of the cars are a reasonable and necessary precaution on the side next to cars passing on a near parallel track ; they are placed there for the purpose of preventing passengers from placing any portion of their bodies outside of the car, for fear of coming into collision with anear passing car.

These fenders are not on cars which run on single tracks, nor are they on the outside of cars on double tracks. The purpose is plain and simple.

The purpose of the gate or chain is equally plain. As said before, it it to prevent passengers from getting on and off on the side next to a passing car, on a near parallel track. To this extent, and no more, it is a warning to passengers. To this extent and no more, it is intended to be a warning by the street car company.

Schwartz was not injured in getting on or off the car by a car passing on a parallel track.

Was it negligence per se for Schwartz to remain on the step, or rather, did the court, as a matter of law, have the right to say so to the jury? We do not think the court could say that it was negligence per se for a passenger to ride upon the steps of a street car. Hundreds, probably thousands, ride upon the steps or running boards of street cars in Cincinnati every day, with the knowledge and at the request of the street car companies of that city. It is a matter of universal knowledge that such is the case, and certainly the street car company does not consider it dangerous so to ride, for if they did, the same care and precaution which prompts them to put up gates and fenders would cause them to devise some means of preventing passengers from riding on the steps of cars. If Schwartz, while on this step, had been struck by a passing car, in the same way that he might have been struck while boarding the car, it might well be said that he had contributed to his injury, for the chain was a warning to him that he was liable to be caught between passing trains. And it would have made no difference whether he had been struck just at the time of boarding the car, or shortly after, for we take it that the chain might fairly be considered as a warning that not only must a passenger not get on or off on that side of the car, but also that there are cars runnning so close on a parallel track that it is dangerous for the passenger to expose his body any distance beyond the limits of the ear, Further than this, we can see no notice to the passenger. It certainly is not a notice to him that it is dangerous to ride on the step. There can be no danger to one riding on a step of a street car from a passing car. If the car that killed Schwartz had passed by, as the company led its passengers to believe it would, and as the company and Schwartz believed it would, and which, but for the negligence of the company, it would have done, Schwartz would not have been hurt. How, then, can it be said that Schwartz contributed to his own injury ?

It is true that if Schwartz hadn’t been where he was, he would not have been killed. This may well be true, and yet Schwartz in law may not have contributed to the injury. Beach, ,2d Ed., at p. 47, says: “The law holds no one responsible for exposing himself to a a danger of which he knew nothing, and of which he was under no obligation to inform himself. We must use ordinary care and prudence to avoid the ordinary and usual perils that beset us; but we are not bound to guard against those which we have no reason, under the circumstances, to suspect. Hence, knowledge of the probable danger, or a sufficient reason to apprehend it, is essential to constitute contributory negligence.”

We believe the foregoing to be a clear and concise statement of the law.

Applying this principle to the facts in the case, what are the-rights of the parties ?

Evidently the company did not anticipate that there was any danger while running its cars that the switch in question would throw a car over onto the other track. If the company had so believed, it certainly would have removed the switch, or run its cars so carefully at this point as to avoid danger. Evidently, therefore, the company did not intend by placing a chain across the front steps of the rear car to give any notice to passengers that the switch in question was liable to throw the south car over to the north track, and bring it into collision with a car passing on the north track; and that, therefore, it would be a dangerous place for one to be on the front step of the rear car at the time of the collision. And if the company did not intend it to be a warning to the passenger for such purpose, it would hardly be reasonable to hold the passenger charged with such knowledge.

Wolfe & Michie, for plaintiff in error.

Paxton, Warrington & Boutet, and Kittredge, Wilby & Simmons, contra.

By what sort of reasoning should a passenger be charged with knowledge, in riding on the company’s cars, which the company itself did not apprehend; and by what sort of reasoning should the passenger be charged with notice of a danger which the company itself had not intended to give, and had not in fact given, of such danger.

It seems to us clear that Schwartz was not informed, and as a reasonable, prudent man, had no reason to believe that while he stood on the steps of defendant’s car, that he was in danger from a collision from a passing car. If he had no such knowledge, and as a reasonable, prudent man should not have apprehended such danger, the law will not charge him with it, and he stands without fault. The case should have gone to the jury as to the question of negligence of the company under proper instructions.

The judgment of the court of common pleas will therefore be reversed, and the cause remanded for further proceedings.  