Edgerly v. Union St. R. Co.

• Decision Date: 17 March 1893
• Citation: 67 N.H. 312,36 A. 558
• Parties: EDGERLY v. UNION ST. R. CO.
• Court: New Hampshire Supreme Court

36 A. 558

67 N.H. 312

EDGERLY

v. UNION ST. R. CO.

Supreme Court of New Hampshire. trafford.

March 17, 1893.

Exceptions from Strafford county.

Action by Eliza J. Edgerly, administratrix of Charles J. Edgerly, against the Union Street-Railroad Company. There was a verdict for plaintiff, and defendants except Verdict set aside.

Case, for injuries to Charles J. Edgerly, the plaintiff's intestate and late husband, resulting in his instant death, November 22, 1890, from the negligent management of one of the defendants' cars, propelled by electricity. The action is brought under chapter 71, haws 1887. The first count in the declaration alleges that the deceased was run over and killed in consequence of the negligent management of one of the defendants' cars by its servants. The second count is similar to the first, except that it alleges that the deceased was lawfully in a public highway. The third count is similar to the second, except that it alleges that the deceased was a passenger in one of the defendants' cars to be carried from Great Falls to Dover, having paid the usual fare, was wrongfully ejected from the car by the defendants' servants, and on the same day, through the negligence of the defendants' servants, was run over by one of the defendants' cars, and killed. The plaintiff introduced evidence tending to show that Edgerly was lying, intoxicated, upon the defendants' track, November 22, 1890, at about 6 o'clock in the afternoon, and was run over and killed by an electric car of the defendants; that a passenger saw him on the track 1 1/2 car lengths ahead, though it was not light enough to distinguish the object as being a man; that the car was running at a pretty good speed, on a down grade. Subject to the defendants' exception, a witness who testified that he had worked two years as a motorman, and that he had examined the place of the accident, and had made observations to see how far a man lying on the track could be seen in the daytime by a motorman in his place on the car, was allowed to state his opinion that a man could be seen 200 feet in the daytime, and 30 feet in the nighttime, by the aid of a headlight; and that an electric car coming down that place at a speed of 6 miles an hour, with the current off, could be stopped by brakes in good order inside of 10 feet, and, if going 7 or 8 miles an hour, in 12 to 15 feet. The jury took a view of the place of the accident. Under the third count, there was much evidence on both sides as to Edgerly's condition and conduct previous to his ejectment from another car of the defendants, shortly before he was run over and killed, as before mentioned. This evidence is sufficiently stated in the opinion of the court When the plaintiff rested, the defendants moved for a nonsuit, on the ground that negligence had not been shown in the defendants or due care in the deceased. The motion was denied, and the defendants excepted.

The defendants requested the following instructions: "(1) The fact that the plaintiff's intestate was ejected from a car of the defendants on the afternoon of the accident has nothing to do with the present suit. (2) The conductor of the car had a right, and it was his duty to the other passengers, to eject him if, by his intoxication, he became offensive. (3) Nor was it the duty of the conductor to wait until some overt act of violence, profanity, or other misconduct had been committed, but he might have expelled the offender when his conduct or condition was such as to render it reasonably certain that he would occasion discomfort or annoyance to other passengers. (4) Had the conductor removed him from the car without any reason, it would have no bearing on this case; and, under the present circumstances, you will not consider whether the conductor was or was not justified in removing him, except to the extent that it may aid you in the determination of the fact as to whether or not Edgerly was in a condition to be in the exercise of due care. (5) Every person is bound to use reasonable care to prevent damage to his person and property, and, if an injury is attributable to himself in part, he cannot recover, though the other party was negligent also. (6) The burden of proof is on the plaintiff to show that he was acting with due care at the time of the injury, and that the defendants were negligent. (7) In order for the plaintiff to recover in this suit, it must be shown that Edgerly was in the exercise of due care, free from negligence on his part; and that the company was not in the exercise of due care, and was guilty of negligence. (8) If you find from the whole evidence that there was an absence of due care on the part of Edgerly, then you are instructed to return a verdict for the defendants. (9) Ordinary care means such care as men of ordinary sense, prudence, and capacity would take under like circumstances, in the conduct and management of their own affairs. (10) If you find that Edgerly was intoxicated or under influence of liquor, then you will find for the defendants, unless you find that a man, in the use of ordinary care, under the same circumstances, would be intoxicated, or under the influence of liquor. (11) If the plaintiff was expelled from the car by the conductor in the public highway, at the place where the evidence shows he was, by reason of his intoxication and misconduct, in a reasonably careful manner, the company would have performed all its duties to the plaintiff as far as that transaction went, and what occurred after would be just as though the plaintiff had not ridden upon the car that day. (12) The conductor of a passenger car has full authority to summarily expel any passenger from the car who is guilty of disorderly and lawless behavior. Accordingly, when a drunken passenger on a car uses abusive language to other passengers or to the conductor, the conductor would be justified in ejecting him from the car at the place where the car then and there was; and, if he is run over and killed by a later train, the company is not liable for his death if there was no fault on the part of those in charge of the train which killed him. (13) If you should find that Edgerly was intoxicated and abusive, it would be the duty of the conductor to remove him from the car, and, if he did not, a passenger who had paid his fare could sustain an action against the company for the conductor's neglect so to do. (14) The railroad owed a higher duty to its passengers than to the plaintiff when at the Mount house, and if by reversing the power, could it have been done with any effect, it might have occasioned any injury to the passengers, in his belief, then it was the duty of the motorman not to reverse it."

The instructions requested were not given except so far as they were included in those given, which were as follows: "If Edgerly died in some other way than from being run over by a car of this company, the plaintiff cannot recover, and your verdict must be for the defendants." "If killed by a car's running upon and over him, then the inquiry is whether his death was caused by want of due care on the part of the company's servants." "A passenger is bound to obey the reasonable rules and regulations of a common carrier of passengers. The defendant company is a common carrier of persons in cars over its road. It was chartered for that purpose, and is obliged to carry every person who applies for passage, and pays or tenders the usual fare, and complies with its reasonable rules. It cannot refuse without becoming liable in an action for damages to the person refused. But there are exceptions to this general statement. It is not obliged to carry a person sick of a dangerous, contagious disease, nor a person who, by his conduct, imperils the lives or safety, or disturbs unreasonably the comfort of the other passengers,—one whose conduct in act or language is so offensive or annoying to the other passengers as to imperil their safety or to disturb unreasonably their comfort." "The conductor of a car operated by a common carrier may remove, and it is his duty to remove, a passenger who, by reason of intoxication or otherwise, such as the use of boisterous, profane, or indecent language, unreasonably annoys the other passengers or imperils their safety. He is not bound to wait until some overt act of violence, profaneness, or other misconduct has been...