Elliott v. Newport St. Ry. Co.

• Decision Date: 08 November 1893
• Citation: 28 A. 338,18 R.I. 707
• Parties: ELLIOTT v. NEWPORT ST. RY. CO.
• Court: Rhode Island Supreme Court

28 A. 338

18 R.I. 707

ELLIOTT

v. NEWPORT ST. RY. CO.

Supreme Court of Rhode Island.

Nov. 8, 1893.

Action by William Elliott against the Newport Street-Railway Company for personal injuries. Verdict directed for defendant Plaintiff petitions for a new trial. Granted.

Patrick J. Galvin and Charles Acton Ives, for plaintiff.

Darius Baker, David S. Baker, Jr., and William C. Baker, for defendant.

MATTESON, C. J. This is an action of trespass on the case to recover damages for personal injuries alleged to have been sustained by defendant's negligence. The case was tried at the March term of the supreme court for Newport county. When the testimony on the part of the plaintiff had been submitted to the jury, the court directed a verdict for the defendant The plaintiff thereupon excepted to the direction, and filed this petition for a new trial.

The testimony shows that the plaintiff was injured September 1, 1892, while riding on one of the defendant's electric cars in Newport The. facts attending the injury were these: The plaintiff boarded the car a few minutes past 8 o'clock in the evening, at the foot of Touro street, on Spring street, with the intention of riding to Morton Park, in the southern part of the city. The car was an open one, with seats running crosswise, and with steps or footboards on each side lengthwise of the car. This car had in tow another car. All the seats in both cars, and also the platforms, were filled with passengers, and passengers were standing on the footboards. The plaintiff took a position on the footboard of the first car, on the left hand or easterly side of the car as it was going south, between the second and third seats from the rear end of the car, standing with his face turned towards the opposite side of the car, and holding onto the two stanchions supporting the roof of the car on either side of him. Instead of standing on the footboard, the plaintiff might have stood, if he had seen fit, between the seats inside of the car. Shortly after the car had started, while the plaintiff was reaching for his money to pay his fare, he was thrown from the car by coming in contact with a trolley pole, fell to the ground, and was run over by the wheels of the car in tow. No objection was made by the conductor to the plaintiff's standing on the footboard, nor was he warned that there was any danger in doing so. Between Touro and Franklin streets the defendant's track ran close to the curbstone on the easterly side of Spring street. The cars were propelled by the trolley system. Between Touro and Franklin streets the poles supporting the trolley wire were located on the edge of the curbstone, so that the distance from the rail to the inner side of the pole varied from 26 to 28 inches. The distance between the inside of the poles and the outer edge of the footboard of a passing car varied from 10 to 12 inches; the distance in the case of the pole by which it is alleged the plaintiff was struck being 10 1/2 inches. The plaintiff did not know of the location of the pole at the point where he was injured. He did not notice any poles from the time he got onto the car until he was struck, and could not have seen them, in the position in which he stood, because they were behind him. He had never ridden over that part of the defendant's road prior to the accident, and was familiar with the street only as he had occasionally driven through it From the point where the plaintiff got onto the car, to the point where he was thrown off, the car had passed eight poles, that by which the plaintiff was struck being the ninth.

The question raised by the plaintiffs exception is whether, on these facts, the court was justified in directing a verdict for the defendant. To have warranted the direction it must have clearly appeared,—so clearly that the court could say as a matter of law, —either that the defendant was not negligent, or that the plaintiff was guilty of negligence which contributed to the accident. We do not think that either of these propositions was sufficiently clear to warrant the court in taking the case from the jury, and directing a verdict for the defendant. Common carriers of passengers are required to do all that human care, vigilance, and foresight reasonably can, in view of the character and mode of conveyance adopted, to prevent accident to passengers. Tuller v. Talbot, 23 Ill. 357; Meier v. Railroad Co., 64 Pa....