Washington Co v. Tobriner

• Decision Date: 06 March 1893
• Docket Number: No. 116,116
• Citation: 37 L.Ed. 284,13 S.Ct. 557,147 U.S. 571
• Parties: WASHINGTON & G. R. CO. et al. v. TOBRINER
• Court: U.S. Supreme Court

147 U.S. 571

13 S.Ct. 557

37 L.Ed. 284

WASHINGTON & G. R. CO. et al.

v TOBRINER.

No. 116.

March 6, 1893.

Statement by Mr. Chief Justice FULLER:

This was an action brought by John H. Harmon to recover damages for a personal injury to him through the negligence of the railroad company. The supreme court of the District, in special term, rendered judgment on the verdict of the jury, on December 1, 1887, for $6,500; and this judgment was affirmed by the court in general term on June 12, 1889, and judgment rendered against the railroad company and its surety on appeal for the amount of the judgment of the court in special term, with interest thereon from December 1, 1887, when it was entered below, until paid, with costs. To review this judgment this writ of error was brought. The case is reported in 18 D. C. 255.

The evidence is comprehensively given by James, J., delivering the opinion, as follows:

'The plaintiff testified, in his own behalf, that on the evening of the 28th of April, 1882, at about 9 o'clock, he took passage in one of the defendant's cars on Pennsylvania avenue to go to his home, on Nineteenth street; that he took his seat about two thirds of the distance from the rear platform; that at or near Nineteenth street he signaled to the conductor to let him off; that the conductor was then inside the car, figuring up his accounts under the light; that upon receiving the signal the conductor rang the bell, and the car began to slow up, and, as he supposed, was about stopping; that there were not many passengers inside, but the platform was crowded; that he made his way through the crowd on the platform, and down onto the step, which was occupied by a man and a boy, who held onto the railings on each end of the steps; that the car was at that time almost at a standstill; that he could neither swing off nor get back; that just as he had gotten on the step the bell was rung, and the car started, and he was thereby thrown off onto the pavement, and injured. He further stated that the conductor did not go out to the platform to assist him to get off. On cross-examination he said that, at the time of his attempting to get off, there were only six or eight passengers inside of the car, while the platform was so crowded that the man and boy referred to had to stand upon the step.

'On the part of the defendant the conductor testified that the plaintiff was in the habit of riding on defendant's cars, and of getting off while the car was in motion; that, when the plaintiff signaled on the night in question, he (the conductor) rang the bell, and the car began to slow; that he was then standing on the rear platform; that he and a small boy were the only persons then on the platform; that the plaintiff 'without waiting for the car to stop after so signaling the conductor, immediately went out on the rear platform, and stepped down upon the step, at the same time holding onto the iron railing on the car, and while the car was still in motion, and moving at a slow rate of speed,—nearly at a standstill,—the plaintiff stepped off, and after he had let go of the car, he (the conductor) pulled the bell to go on again, and, as the plaintiff turned, he fell; * * * that he did not ring the bell for the car to start until after the plaintiff had stepped on the street, and let go of the car."

Upon the trial the court gave the following instructions, requested on behalf of the plaintiff:

'If the jury believe from the evidence that the conductor, at the request of the plaintiff, rang the bell to stop the car for him to get off, and that the car thereupon slowed, and that while plaintiff was waiting for the car to stop, and before it had fully stopped, the car started suddenly forward, through the negligent act of the conductor or driver, and that the plaintiff was thereby, and without any negligence on his part, thrown from the car and injured, then he is entitled to recover.'

'If the jury believe from the evidence that the conductor, at the request of the plaintiff, rang the bell to stop the car for plaintiff to get off, and that thereupon the car slowed, and the plaintiff went out on the platform, and, while the car was moving very slowly, stepped down on the step of the car to be in readiness to step off when the car should fully stop, and that, instead of stopping fully, the car moved suddenly forward, in consequence of the negligent act of the conductor or driver, and he was thereby thrown off and injured, it would be for the jury to say, under all the facts and circumstances of the case, shown in evidence, whether the conduct of the plaintiff caused or contributed to his injury; and if they further believe that the plaintiff did, under the circumstances, what an ordinarily prudent man would have done, then he was not guilty of contributory, negligence, and would be entitled to recover.'

'If the jury find for the plaintiff, they will find for him such an amount of damages as will fully compensate him for the suffering of mind and body inflicted upon him by his injury, for the personal inconvenience, the loss of time, and the expenses of cure that naturally and proximately resulted from the injury he suffered; and, if they find that the injuries sustained by the plaintiff are permanent, they will also find for him such damages as will fully compensate him for the suffering of mind and body, the personal inconvenience, and the loss of time that he will suffer in the future. In determining this, as to the future, they will consider plaintiff's bodily vigor and age, as shown by the evidence adduced.'

The defendant prayed the court to instruct the jury as follows:

'The burden of proof is upon the plaintiff to satisfy the jury that he sustained the injury which is the subject of this action by reason of the negligence of the defendant, and without contributory negligence on his part.'

But the court refused to give the instruction as prayed, and modified it by striking out the words, 'and without contributory negligence on his part,' and gave it as modified.

Defendant asked the court to give the following instruction:

'If the jury shall find that the platform was crowded, and that the plaintiff made his way through the crowd, and got down from the platform, and onto the step below, and stood on the step without any means of support, with a person on each side and a crowd behind, and whilst the plaintiff was so standing a sudden movement of the car caused the plaintiff to fall from the step onto the pavement, whereby he received the injury alleged, then it will be for the jury to determine from the evidence whether or not the plaintiff is chargeable with contributory negligence through such acts; and, if the jury shall find that he is so chargeable, then the plaintiff is not entitled to the verdict.'

But the court refused to give the same without modification, and modified it by inserting after the word 'chargeable,' in the last line of the instruction, the following: 'And that such negligence contributed to the injury.'

Defendant also asked the court to give several instructions, which need not be repeated, and which were refused or modified, and, among others, this, omitting the words in brackets:

'It was not the duty of the conductor of the street car from which the plaintiff was injured to exercise any physical control over the plaintiff in getting off the car, and if the jury shall find from the evidence that when the conductor rang the bell to stop the car, and when the plaintiff passed out of the car upon the platform and upon the step, the conductor was standing on the inside of the car, and that the platform was crowded with passengers, and that a boy was on the step next to the car, and a man was also on the other end of the step, in such a position as to prevent the plaintiff from supporting himself by either of the railings at the time the plaintiff stepped down upon the step, and that the car was in motion, and that while so on the step the plaintiff was thrown off the car by a sudden jerk or start of the car, caused by the ringing of the bell or otherwise, then it will be for the jury to determine whether or not the plaintiff is chargeable with contributory negligence [by such acts,] and if the jury shall find that he is so chargeable, [and that said negligence contributed to the accident,] the verdict must be for the defendant.'

But the court refused to give this instruction without modification, and modified it by the insertion of the words given above in brackets.

At defendant's request the court gave the following instructions:

'First. If from the evidence the jury shall find that the injury would not have occurred if the plaintiff had waited until the car stopped, and that the injury was caused by the plaintiff attempting to get off the car whilst in motion, then the plaintiff contributed to the injury, and is not entitled to recover.

'Second. If the jury shall be satisfied from the evidence that the plaintiff himself so far contributed to the accident by his own negligence, or want of ordinary care and caution, that but for such negligence or want of ordinary care and caution on his part the accident would not have happened, the plaintiff cannot recover, and the verdict must be for the defendant.'

The court also charged the jury as follows:

'This case suggests four theories as to the cause of this accident which is complained of under the declarations, and as many propositions of law applicable to them. How far there is sufficient evidence in the case, or any evidence, to support any one of these theories, I shall leave to you. In the first place, the testimony on the part of the defendant is to the effect that the plaintiff had descended from the car in safety, and that he stepped and fell, from some cause not attributable to the conduct of the defendant, but from some unforeseen accident. If you find that to be the case, it is perfectly apparent that there is no ground of action...