Brown v. Congress & B. St. Ry. Co.

• Citation: 13 N.W. 494,49 Mich. 153
• Parties: BROWN v. CONGRESS & BAKER ST. RY. CO.
• Decision Date: 11 October 1882
• Court: Supreme Court of Michigan

13 N.W. 494

49 Mich. 153

BROWN v. CONGRESS & BAKER ST. RY. CO.

Supreme Court of Michigan

October 11, 1882

Negligence is the failure to observe, for the protection of another's interests, such care, precaution and vigilance as the circumstances justly demand and the want of which causes him injury. And i cannot be presumed but must be affirmatively proved.

A passenger on a street car who wanted to smoke and knew the driver went to the front platform for the purpose. A large traveling trunk prevented his getting on the platform, and he stood on a lower step hanging only by the driving bar and the iron at the side of the car. He rode some distance and after the car stopped and the horses were watered the driver told him to go to the rear platform if he wanted to smoke. He started a minute later to do so, but as he was stepping down and his foot was nearly on the ground, the driver let go the brake, the car started and he was thrown down and injured. Held that in an action against the railway company for the injury these facts did not make out a cause of action.

Error to superior court of Detroit.

D.E Prescott, for plaintiff.

Brennan & Donnelly, for defendant and appellant.

MARSTON J.

This action was brought to recover damages for injuries sustained by reason of the alleged negligence of the defendant while riding upon one of its cars, and the important question, and only one in my opinion, is whether under the plaintiff's testimony the case should have been submitted to the jury. The plaintiff testified, in substance, that on the night of October 10, 1881, he with his wife and child entered one of the defendant's cars, in which there was an abundance of room; that he then went out of the car and walked around to the front platform to smoke; that the car was alike at both ends; that there was on the front platform a large traveling trunk which prevented him from getting onto the platform that he stood upon the step leading thereto, holding onto the iron on the dash-board with his left hand and the iron on the side of the car with his right; that the driver of the car and he were acquainted; that he rode in this way some distance and up to the company's barn where a stop was made, and some conversation had between the driver and one of the men at the barn. I now quote from plaintiff's testimony:

"I couldn't remember exactly what the conversation was and finally when the horses got watered, he (the driver) told me to go to the rear and have my smoke; to go to the rear platform if I wanted to smoke. Question. Were the cars stopped or in motion when he told you that? Answer. They were stopped. Q. What did you do? A. I let go my right hand from the car and leaned back to make a turn to step down. I had my right foot just nearly touching the ground. Q. How far from the ground? A. Just near enough to nearly touch; in an instant he let go the brake, the horses started up, the car gave a sudden jolt and by some means or other I was thrown round in front of the car nearly on the rail. *** Q. Now referring back to the accident, you say the driver tightened down the brake and stopped? A. Yes, sir. Q. Where were you standing or in what position were you until the time of the accident, until he told you to get off? A. I was in the same position that I was riding. Q. Did he tell you to get off while the car was in motion, or while it was stopped? A. While it was stopped."

On cross-examination the following: "Q. Now after he watered the horses he told you to go to the rear platform? A. Yes, sir. Q. And you started to do it, you say? A. Yes, sir I started to obey his order. Q. How long after he...