Downey v. Hendrie

• Decision Date: 05 October 1881
• Citation: 9 N.W. 828,46 Mich. 498
• Court: Michigan Supreme Court
• Parties: DOWNEY v. HENDRIE.

9 N.W. 828

46 Mich. 498

DOWNEY v. HENDRIE.

Supreme Court of Michigan

October 5, 1881

It is contributory negligence for a passenger of ordinary common sense to sit on the driving-bar of a street car even at the driver's invitation if there is room for him inside the car Courts must take judicial notice of what everybody knows with regard to the incidents of railway travel.

In an action from an injury caused by falling off the front rail of a street car, and being run over, the defendant's testimony, which was not contradicted, showed that the driver made an effort to rescue the plaintiff as he fell, and stopped his car as soon as he could. Held, that so far as running over him was concerned there was no question of negligence, on defendant's part, to go to the jury.

Error to superior court, Detroit.

Griffin Dickinson, Thurber & Hosmer, for plaintiff in error.

Brennan & Donnelly, for defendant in error.

GRAVES J.

The plaintiff having taken passage on a street car of the defendant fell from the car and the wheels crushed his elbow. He was between 40 and 50 years old, a butcher and dealer in fat cattle, had lived many years in Detroit, was familiar with street cars and with that which injured him. He brought this action to recover for the injury and when the evidence was closed, the learned judge being of opinion that it was too obvious to be questioned that the plaintiff's own negligence was the material if not the exclusive cause of his being hurt directed a verdict for defendant. It is now urged that in view of the state of the evidence the plaintiff was entitled to have the sense of the jury on it,

The facts of negligence alleged as the cause of injury are claimed to present two separate grounds of recovery; and viewing the declaration under the theory, and as favorably as possible for the plaintiff, they may be stated substantially as--First, assigning the plaintiff to a seat from which there was danger he would be thrown and injured in case of a sudden jerk of the car and then causing such jerk by starting up the horse by a blow of the driver's whip and, second, negligently running over the plaintiff after he had been thrown from the car to the track.

Whatever color is found in the case for the claim made by the plaintiff's counsel for a submission to the jury on the ground first mentioned, is confined to the plaintiff's own testimony. He entered the car at the rear end, passed right through to the front platform where the driver stood and sat down, with his back out, on the driving-bar, a thin iron rail not exceeding an inch in thickness. The car was moving at a moderate pace, and when it had gone a short distance only, the plaintiff fell off backward and the wheels passed over his arm.

There was no conductor except the driver and fare was paid at a box placed at the front door. Both doors were standing open, and the plaintiff, as he testified, went forward to pay his fare at which the driver called him out and invited him to be seated on the bar and he seated himself accordingly. That there was abundance of unoccupied seating room inside the car and that he was not hindered by any one from sitting there. That the car had moved about one block when the driver struck the horse and "tipped" plaintiff over. That the blow caused the car to "jump him right off." There is no evidence that the driving of the car was not according to the usual and proper mode.

This part of the case is not much pressed; but the point is understood as being, that granting the driving bar to have been, as the plaintiff knew, a dangerous seat, and also admitting that the fact of his occupying it was a proximate contributory cause of his injury; yet as his sitting there was on the driver's invitation it ought not to be reckoned as contributory negligence. There is no doubt that it has been laid down as a rule that an assignment of the passenger by the carrier to a position of danger may in case of injury estop the carrier from setting up the occupation of that position as contributory negligence. But the rule is plainly not one of universal application.

Regard must be had to the passenger's capacity to look out for himself; to the opportunity there may be to get a safer position; to the distinctness, certainty and extent or degree of the peril, and so on.

Take the case...