Garvey v. R.I. Co.

• Decision Date: 19 March 1904
• Citation: 26 R.I. 80,58 A. 456
• Parties: GARVEY v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

58 A. 456

26 R.I. 80

GARVEY

v. RHODE ISLAND CO.

Supreme Court of Rhode Island.

March 19, 1904.

Case for negligence by Rose A. Garvey against the Rhode Island Company. On demurrer to the declaration. Sustained.

Argued before STINESS, C. J., and TILLING HAST and DUBOIS, JJ.

Richard E. Lyman, for plaintiff.

Henry W. Hayes, Frank T. Easton, and Lefferts S. Hoffman, for defendant.

TILLINGHAST, J. The material allegations of the plaintiff's declaration are that, being desirous of boarding one of the defendant's street cars in Providence at the place known as "Turk's Head," she signaled the motorman of the car of her desire to take the car while it was rounding the curve at said point, and that in consequence of her signal, the car was slowed down and nearly brought to a standstill on said curve, whereupon the plaintiff walked towards it for the purpose of boarding it when it came to a standstill. The declaration then alleges that it became the duty of the defendant to then bring the car to a standstill, so that plaintiff might board the same with safety, but that the defendant negligently disregarded this duty. and. while the plaintiff was standing in the street, near to said curve, waiting for the car to stop, she being in the exercise of due care, the motorman suddenly increased the speed of the car around said curve, thereby causing the read end of the car to swing or kick out over that part of the street where the plaintiff was standing, and strike against her, whereby she was thrown down and injured.

The defendant demurs to the declaration on the grounds (1) that it appears thereby that she voluntarily assumed a position of danger, relative to said ear; (2) that the plaintiff was negligent in assuming a position of danger, relative to said car, before it had come to a standstill; and (3) that the declaration does not set forth any legal duty owing by the defendant to the plaintiff. We are of the opinion that all of the grounds of demurrer are well taken.

By voluntarily assuming a position of danger, relative to said car, the plaintiff assumed the risk incident thereto. And although the speed of the car was being slackened in response to her signal before she assumed the position of danger on said curve, yet, as it had not come to a standstill, she had no right to infer that it would do so at any particular point on the curve, and hence she had no right to take a position where the swing or overhang of the car would come in contact with her person. It is to be noted in this connection that the plaintiff was not attempting or intending to board the car while it was in motion, but to wait until it came to a standstill. And hence it was her plain duty not to get in the way of the car, or of any part thereof, while it was in motion. That the plaintiff knew that the position which she took while the car was rounding the curve was a dangerous one must be presumed, as every person who is of sufficient intelligence to be capable of being left alone in the streets must be presumed to take notice of the obvious fact that the body of a street car, in rounding a curve, must necessarily swing out some little distance from the track on the outside of the curve. And for one to place himself within reach of the swing or overhang of a car while it is in motion is as much a bar to his recovery in an action against the company as though he bad negligently placed himself in front of a moving car, and been injured thereby. Indeed, the former act would seem to be a stronger bar to his recovery than the latter, for, when one negligently places himself in front of a moving car, the motorman, who is in a position to see him, is bound to avoid injuring him. If possible, notwithstanding his own negligence. But where one places himself in such a position that the motorman is unable to see him, as must have been true in the case at bar, and is hit by the swing or kick of the rear part of the car when rounding a curve, we fail to see how any liability can be fastened upon the company.

Again, we fail to see that the defendant was guilty of any negligence in the premises. Even assuming that, from the act of the motorman in slackening the speed of the car in response to the plaintiff's signal, she had the right to assume that it would stop shortly, and while on the curve, yet, as already suggested, she had no right to assume that it would stop at any particular point on the curve, nor was it the duty of the motorman to stop at any particular point thereon. And until the plaintiff had been given to understand by some act of the motorman or conductor that she could safely attempt to board the car, or at any rate until the...