Bishop v. The Union Railroad Co.

• Citation: 14 R.I. 314
• Parties: ALFRED H. C. BISHOP, by his next Friend, v. THE UNION RAILROAD COMPANY.
• Decision Date: 09 January 1884
• Court: United States State Supreme Court of Rhode Island

14 R.I. 314

ALFRED H. C. BISHOP, by his next Friend, v. THE UNION RAILROAD COMPANY.

Supreme Court of Rhode Island.

January 9, 1884

While two horse cars attached together in charge of a driver on the front platform of the leading car and drawn by a single horse were driving over the tracks of the company in a public highway in the city of Providence from the stables to the repair shops, a lad six years old, to outstrip a playmate with whom he was racing, jumped on the rear platform of the leading car and soon afterwards fell off, or jumped off, and was seriously injured. The lad's mother testified that he told her that he fell off, but in cross examination, when asked if he did not say that he was afraid the driver would see him and therefore jumped off, replied, " Yes, sir; I think probably he did, but am not quite sure he told me he fell off." The driver testified that he did not see the boys and knew nothing of the accident, which occurred between two and three o'clock P. M., until the evening.

In an action against the horse car company to recover damages for the injury:

Held, that the company was not chargeable with negligence.

Held, further, that the driver of the car was not chargeable with any neglect of duty.

Held, further, that the company was not bound to employ a second man to guard the cars from intrusion during their transit.

Held, further, that the company was under no duty nor obligation of care to the boy.

A city ordinance provided that " cars driven in the same direction shall not approach each other within a distance of three hundred feet except in case of accident, when it may be necessary to connect two cars together, and also except at stations."

Held, that the ordinance applied only to cars going in the same direction and driven separately, and was inapplicable to the case at bar.

PLAINTIFF'S petition for a new trial. The facts involved in the case are stated in the opinion of the court.

Two street cars were being drawn by a single horse, in charge of a driver on the front platform, from the stables to the repair shops, when the plaintiff, a lad six years old, in play jumped on the rear platform, and fell off or jumped off, sustaining injury. The driver knew nothing of it. Held, that there was no negligence on the part of the railroad company.

George T. Brown & William H. Sweetland, for plaintiff.

The defendant was negligent. Jetter v. N.Y. & Harlem R. R. Co. 2 Ab. Ct. App. Dec. 458; Beisegel v. N.Y. Central R. R. Co. 14 Ab. Pr. N. S. 29, 35; McCully v. Clarke & Thaw, 40 Pa. St. 399, 406; Baltimore City Passenger R. R. Co. v. McDonnell, 43 Md. 534; Karle v. Kansas City, St. Jos. & c. R. R. Co. 55 Mo. 476; Wright v. Malden & Melrose R. R. Co. 4 Allen, 283, 290.

The age of the plaintiff precluded contributory negligence. Wharton on Negligence, §§ 88, 308; Chicago & Alton R. R. Co. v. Becker, 76 Ill. 25, 32, 33; Hestonville, & c. R. R. Co. v. Kelly, 102 Pa. St. 115; Plumley v. Birge, 124 Mass. 57; 2 Thompson on Negligence, 1180, 1191.

Whether or not the plaintiff exercised such care as could be required from a child of his age is for the jury to decide. McMillan v. B. & M. R. R. Co. 46 Iowa 231, 233; Baltimore & Ohio R. R. Co. v. The State, 30 Md. 47; Railroad Company v. Gladmon, 15 Wall. 401; Smith v. Atchison, Topeka & Santa FéR. R. Co. 25 Kans. 738, 742; Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99; Bernhard v. Rensselaer & Saratoga R. R. Co. 1 Ab. Ct. App. Dec. 131, 134; Bigelow on Torts, 320; Costello v. Syracuse & c. R. R. Co. 65 Barb. S.C. 92; Philadelphia & Reading R. R. Co. v. Spearen, 47 Pa. St. 301; Chicago & Alton R. R. Co. v. Gregory, 58 Ill. 226; Benton v. C. R.I. & P. R. R. Co. 55 Iowa 496; Meeks v. Southern Pacific R. R. Co. 56 Cal. 513; Wyatt v. Citizens' R. R. Co. 55 Mo. 485; Gray v. Scott, 66 Pa. St. 345.

Francis W. Miner, for defendant, cited Dietrich v. Baltimore & Hall's Springs R. R. Co. 58 Md. 347; Hestonville Passenger Railway Co. v. Connell, 88 Pa. St. 520; Central Branch Union Pacific R. R. Co. v. Henigh, 23 Kans. 347; Morrissey v. Eastern Railroad, 126 Mass. 377, 380.

DURFEE C. J.

This is case for negligence. The defendant is a horse railroad company, having its rails laid in the streets of the city of Providence. On the afternoon of July 7, 1883, a driver in the employ of the company took two empty passenger cars belonging to it from the stable in Elmwood to the repair shop on Thurber's Avenue. The two cars were fastened together, one behind the other, and drawn by a single horse. They were driven slowly along, the driver occupying the platform in front of the forward car, looking beside and before him. In their passage they were driven along Broad Street on the track close by the sidewalk of Grace Church Cemetery. The plaintiff, a boy six years old, was on the sidewalk with a boy named Hall, eleven years old. Hall was riding a velocipede and the plaintiff was racing with him. The plaintiff, to get ahead of Hall, jumped on the rear platform of the front car, and, after remaining there a little while, either fell off or jumped off and fell. The mother of the plaintiff, who was permitted to relate what her boy told her about the accident, testified at first that he told her that he fell off, but, on being asked in cross examination if he did not tell her that he was afraid the driver would see him and jumped off, replied, " Yes, sir; I think probably he did, but am not quite sure he told me he fell off." The accident occurred between two and three o'clock. The driver did not see the boys and knew nothing of the accident when it happened, and heard nothing about it until nearly seven o'clock. The plaintiff was badly injured, doubtless by collision with the second car. The plaintiff offered in evidence, for the purpose of proving the negligence of the company, an ordinance of the city of Providence containing rules and regulations for railroads in the city. The defendant objected, on the ground that the company had not consented to the ordinance, and that without consent it was not bound by it. The court sustained the objection and the plaintiff excepted. The defendant moved the court, after the plaintiff's testimony was in, to nonsuit him. The court granted the motion and the plaintiff excepted. The plaintiff now petitions for a new trial for error in these two rulings.

The ordinance was offered for the purpose of putting in proof the following rule, to wit: " Cars driven in the same direction shall not approach each other within a distance of three hundred feet, except in case of accident, when it may be necessary to connect two cars together, and also except at stations." We do not think the rule is applicable in the case at bar. It applies when two cars, going in the same direction, are driven separately, so that the distance between them may be increased or diminished. It requires that the cars so driven shall be kept at least three hundred feet apart. If the two cars were driven close together there would be danger of collision when the forward car stopped, particularly if the two cars were on a descending grade. The rule was obviously intended to prevent the occurrence of any such casualty. The rule itself permits the cars to approach for the purpose of being connected in case of accident. This shows that the rule was designed for cars separately driven. Of course if the rule was inapplicable, the refusal to admit it in evidence is not a ground for granting a new trial.

The reason given by the court for granting the nonsuit was that it appeared from the evidence submitted for the plaintiff that his own fault contributed to his injury. The court announced that the child jumped from the platform because he was afraid the driver would see him, and that he must therefore, have known that he was a wrong doer. It is contended for the plaintiff that he cannot be charged with contributory negligence, if he exercised as much care as could be expected of him considering his age, and that whether he did exercise that degree of care was a question for the jury. The cases cited to this point are some of them very strong. The plaintiff, however, was nonsuited not because he was simply careless, but because he was knowingly committing a wrong or trespass which directly contributed to his injury. Whether in this view his youth would entitle him to the same leniency may, perhaps, not be beyond question; but, if it would, we are nevertheless of opinion that the nonsuit was rightly granted, for the plaintiff, however excusable his own fault, was not entitled to recover without proof of fault on the part of the defendant, and we think there was no evidence tending to show that the defendant was guilty of any negligence toward him. The plaintiff was injured because, having got on the rear platform of the forward car, he jumped off or fell off before the following car. Now in order to show that the negligence of the defendant contributed to the injury, it is necessary first to show that the defendant owed the plaintiff a duty of care, which if it had duly observed, the injury would not have happened. Where no care is due there can be no liability for neglecting it. Now it appears that, before the accident, the driver did not know that the plaintiff had got upon the platform or that he had jumped or fallen off. The driver, therefore, is not chargeable with any want of care, unless it was his duty to have known that the plaintiff had got on the car. We think it was clearly the duty of the driver to look forward to his horse and to the road before him, rather than back to the empty cars behind him. The company is, therefore, not liable on account of any neglect on the part of the driver. If it be liable at all, it is liable either because it ought not...