Bridges v. Jackson Electric Ry., Light & Power Co.

• Decision Date: 17 July 1905
• Citation: 86 Miss. 584,38 So. 788
• Court: Mississippi Supreme Court
• Parties: PARHAM B. BRIDGES v. JACKSON ELECTRIC RAILWAY, LIGHT, AND POWER COMPANY

38 So. 788

86 Miss. 584

PARHAM B. BRIDGES v. JACKSON ELECTRIC RAILWAY, LIGHT, AND POWER COMPANY

Supreme Court of Mississippi

July 17, 1905

FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge.

Bridges the appellant, was plaintiff, and the railway company, the appellee, defendant in the court below. From a judgment for defendant, the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Alexander & Alexander, and George B. Power, for appellant.

It is a matter of common knowledge that street railways daily undertake to carry passengers greatly in excess of the seating capacity of their cars, and that they stop their cars and take on passengers so long as there is standing room on the platforms and footboards, and that they collect fares from those on the platforms and footboards as wall as from those, within the cars.

The defendant railway company was no exception to the general rule.

To allow passengers to ride on the running board of a car under any circumstances is to extend an implied invitation to ride there under all circumstances; and from the fact that the company allowed passengers to ride there, collecting fares and not objecting, one would be entitled to presume that the running board of a car is reasonably safe, and that the construction of the company's track and trolley poles is such as to make it safe.

A further invitation was impliedly extended to plaintiff to use this running board, not solely for the purpose of riding there, but for the purpose of passing from one part of the car to another, by reason of the fact that the guard rail was up on the side where plaintiff was sitting, and there was nothing to prevent him from passing from his seat to the running board. The mere fact of this guard rail being used would entitle one to conclude that when the guard rail was up there would be no danger. Clark's Accident Law (2d ed.) Street Railways, sec. 13; Elliott v. Newport Railway Co., 18 R. I., 707; McCord v. Atlanta, etc., R Co., 45 S.E. 131; Seymour v. Citizens' Ry. Co., 114 Mo. 266; Geitz v. Milwaukee, etc., R. Co., 72 Wis. 3071; Citizens' Street R. Co. v. Hoff Bauer, 56 N. E. Rep., 54; Augusta R. Co. v. Glover, 2 Am. Neg. Cases, 466; Buie v. Greenville, etc., R. Co., 10 So. 574.

Affirmed.

Williamson & Wells, for appellee.

The evidence for the plaintiff in this case establishes beyond controversy the following facts:

1. The plaintiff was seated in the car in a place of perfect safety; and if he had remained in his seat, he would not have sustained an injury.

2. The car was not crowded, and there was no reason for plaintiff to go upon the running board.

3. At the time of plaintiff's injury he was not standing or riding on the running board, but was walking along on it, making his way to a seat, when it was just as easy for him to have entered the ear and gone to his seat through the aisle in the usual and safe way.

4. Plaintiff was perfectly familiar with all of the surroundlugs, and knew that the line of trolley poles was alongside of the track, and he had heard of persons being struck by them.

It is obviously more dangerous to ride on the step or footboard of a car than to occupy a seat inside. Therefore it is the duty of a passenger in the exercise of ordinary prudence in boarding a car, if possible, to place himself in a safe position in the car. Ashbrook v. Fred. Ave. Ry. Co., 18 Mo. App., 290; Clark v. Eighth Ave. R. Co., 36 N.Y. 135.

If a passenger voluntarily rides on the step or on the footboard of an open car, when there is ample room inside, and is injured by a collision with an obstacle in the street, his negligence is prima facie established, and the burden is upon him to rebut the presumption. Clark v. Eighth Ave. R. R. Co., supra; Schoenfeld v. Milwaukee City R. R. Co., 74 Wis. 433; Craighead v. Brooklyn City R. Co., 123 N.Y. 391; Branch on Contributory Neg. (2d ed.), 294.

We do not contend that it is contributory negligence per se for a passenger on a street car to ride on the running board of a car. It cannot be said to be negligence as a matter of law, under all circumstances, for a passenger to stand upon the running board. If no seat is furnished and the carrier permits a passenger to ride in that way, the carrier assumes the duty of exercising the care demanded by the circumstances. But the seats in street railroad cars are provided for passengers to occupy, and if there is room to be seated inside the car and no special reason exists why the passenger should not occupy it, he is negligent as a matter of law in remaining on or going upon the running board, and if, without reasonable cause, he leaves the car or places himself outside of it while in motion, he must assume the risk of so doing. Thane v. Scranton Tract. Co., 191 Pa. St., 249; Coleman v. Sec. Ave. R. Co. , 114 N.Y. 612; Dixon v. Brooklyn, etc., 100 N.Y. 171; Hickey v. B. & L. R. Co., 14 Allm. (Mass.), 429; Moody v. Springfield St. R. Co., 65 N. E. Rep., 29.

The cause which may justify a passenger, without negligence on his part, in leaving his seat and going outside of the car and occupying a position there while the car is running, must be such as impels or induces him to do so--as, for example, where it becomes necessary for his comfort because of the crowded condition of the car for him to do so. Wood v. Brooklyn City R. Co., 38 N.Y.S. 1077; Tanner v. Buffalo R. Co., 72 Hun. (N. Y.), 465; Martin v. Sec. Ave. R. Co., 38 N.Y.S. 320.

If a passenger is unnecessarily and voluntarily in a place of danger, he is prima facie guilty of negligence, and the burden is on him to show that his being in that position was not contributory negligence such as to prevent his recovery. Solomon v. Cent. Park R. Co., 31 N. Y. (1 Sweeney), 138; Ward v. Cent. Park R. Co., 42 How. Pr. (N. Y.), 289; Wills v. Lynn R. Co., 129 Mass. 351; Downing v. Hendric, 46 Mich. 498; Archer v. Fort Wayne R. Co., 87 Mich. 101; Maguire v. Middleaux R. Co., 115 Mass. 239.

Argued orally by George B. Power, and C. H. Alexander, for appellant, and by Benjamin H. Wells, for appellee.

OPINION

HOUSTON, J.

This was a suit by appellant (plaintiff below) for the recovery of damages for personal injuries alleged to have been sustained through the negligence of appellee while he was its passenger, said injuries being caused by appellant being struck by, or coming in contact with, one of the trolley poles on the side of one of the open cars of appellee on its street railway in the city of Jackson. Appellee pleaded the general issue, and a plea of contributory negligence. At the conclusion of appellant's evidence, the lower court sustained a motion to exclude all of it, gave a peremptory charge, and entered a judgment dismissing the case, from which plaintiff below prosecuted this appeal.

Able counsel for appellant in their brief say that the only question presented for decision is whether the case showed that appellant was guilty of such contributory negligence as to warrant the court in granting the peremptory instruction.

Of course, it is an elementary principle that, in actions for injuries through negligence, the plaintiff cannot recover if his own negligence or want of ordinary care produced, or even contributed as the proximate cause to produce; the injury complained of; and if the facts shown by the whole testimony for the plaintiff, and all just inferences from those facts, make this clear, then, in such a state of evidence, although the defendant introduce no evidence in support of his plea of contributory negligence, it is not only within the power, but it is the duty, of the court to decide upon the legal effect of the evidence, and to instruct the jury, as a matter of law, that the plaintiff cannot maintain this action. When the facts are not disputed and the inferences or conclusions resulting therefrom are indisputable, the question of contributory negligence is one of law for the court to determine, and not one of fact for the jury. Railroad Co. v. McGowan. 62 Miss. 682 (52 Am. St. Rep., 205); Railroad Co. v. Alexander, 62 Miss. 496; McMurtry v. Railroad Co., 67 Miss. 601 (7 So. 401); Swan v. Ins. Co., 52 Miss. 704; Todd v. Railroad Co., 80 Am. Dec. 49.

Now the evidence in this case establishes, beyond cavil, controversy, or dispute, that, on the night of the accident, plaintiff and his wife took passage and obtained seats on the car at Livingston Park, returning to their home, near the insane asylum; that, when the car stopped at Spengler's corner, plaintiff, according to his own evidence, voluntarily left his seat inside the ear, just behind his wife, to speak to a man whom he saw on the rear platform, and who he thought was a friend, about a personal matter. When he arrived at the rear platform, although he ascertained that he was mistaken in the identity of the man, and that he was not the one whom he had left his safe seat to see and converse with regarding a purely personal matter, still, instead of returning to his seat, which the defendant company had provided for its passengers, and which remained empty and awaited him, he engages in a nonbusiness conversation with this stranger. As the car was then standing still, and as he discovered that this was not the friend to whom he desired to speak, which was the sole and only reason assigned for his leaving his seat, he should have returned to it by way of the aisle provided for the purpose, and could have safely done so. But not content with failing to keep his seat, where he admits he would have been perfectly safe, or to return to it while the ear was standing, which he could have safely done, even by way of the running board, according to his own testimony, he continued a seemingly idle...