Lobner v. The Metropolitan Street-Railway Company
| Decision Date | 10 April 1909 |
| Docket Number | 15,933 |
| Citation | 101 P. 463,79 Kan. 811 |
| Parties | DETLOF LOBNER v. THE METROPOLITAN STREET-RAILWAY COMPANY |
| Court | Kansas Supreme Court |
Decided January, 1909.
Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.
Judgment reversed and case remanded.
SYLLABUS BY THE COURT.
1. NEGLIGENCE--Overcrowding Street-cars -- Injury to Passenger. While it can not be declared negligence as a matter of law for a street-railway company to allow its cars to be crowded with passengers, yet if the company permits its cars to become so crowded that a passenger is pushed off and injured the question of whether the overcrowding of the cars is negligence is one of fact for the jury.
2. NEGLIGENCE--Contributory. The mere fact that a person rides on a crowded car or the platform of such a car on the invitation of a railway company can not be regarded as contributory negligence per se.
3 NEGLIGENCE--Same. One who rides on a crowded car assumes the inconvenience resulting from its crowded condition, but the company is not for that reason relieved from the responsibility of using due care for the safety of the passengers invited upon such crowded car.
4. NEGLIGENCE--Same. Whether a person who enters a car of a street-railway company which is already crowded and rides on a crowded platform, from which he is shoved off and injured, is guilty of contributory negligence is a question to be determined by the jury under all the circumstances brought out in the evidence.
J. E. McFadden, for plaintiff in error.
O. L. Miller, W. J. Buchan, and C. A. Miller, for defendant in error.
Detlof Lobner, who alleges that he was crowded off and caused to fall from a street-car in Kansas City, and thereby seriously injured, brought this action against the Metropolitan Streetrailway Company, which was operating the car, alleging that the injury was the result of the negligence of the company.
The grounds of negligence pleaded were substantially that the street-car on which he rode was overcrowded; that the company did not place gates on the cars for the protection of passengers; that it did not provide a sufficient number of cars to carry the passengers safely; that it permitted the car and its platforms to become so crowded as to make the plaintiff's position on the car perilous; that by reason of its crowded condition and while standing on the platform he was crowded off by his fellow passengers; and that when the car was already crowded the agents of the company at a certain junction and transfer point invited and permitted other passengers to come on the car, so as to imperil plaintiff, when they knew or should have known that the overcrowding of the car would cause the plaintiff to be crowded off and injured.
The plaintiff gave testimony in his own behalf to the effect that he boarded one of the defendant's cars to ride to his work and found all of the seats occupied, with passengers standing in the aisle and on both front and rear platforms, or vestibules; that after the car had proceeded a few blocks to Central avenue, a junction point, some persons left the car and many others got on; that at that time he moved from the aisle of the car where he was standing to the front vestibule, in order that he might get through the crowd more easily when leaving the car at his destination; that while standing in the vestibule holding to a rod on the side of the car with his left hand, with a dinner-bucket in his right hand, he was crowded out of the car and injured. He testified that he was shoved off by the pressure of the crowd against his back, but did not observe the person who was immediately against him. The conductor came into the front vestibule to collect fares just before the plaintiff was pushed off, and he says there were about ten or twelve persons, and perhaps more, standing in the front vestibule when plaintiff was crowded out of the car. There were no gates enclosing the vestibules, or platforms, of the car. After additional testimony showing the extent of his injuries the defendant introduced a demurrer to the plaintiff's testimony, which was sustained, and of this ruling plaintiff complains.
There is abundant evidence that the car on which the plaintiff was carried was overcrowded, and there is testimony tending to show that by reason of the overcrowding of the car the plaintiff was pushed from it and injured. It is the duty of the railway company to exercise the utmost care for the safety of passengers that the means of conveyance and the circumstances of the case will permit. The company controls the operation of its cars and the number of passengers permitted to ride on each of them. It is the duty of the company to provide a sufficient number of cars to accommodate and properly care for passengers, and to permit its cars to become overcrowded so that a passenger is exposed to a danger which reasonable foresight might have anticipated and avoided is negligence. (Topeka City Rly. Co. v. Higgs, 38 Kan. 375, 16 P. 667, 5 Am. St. Rep. 754.) In Pray v. Omaha Street R. Co., 44 Neb. 167, 62 N.W. 447, 48 Am. St. Rep. 717, it was held that "it is evidence of negligence on the part of the street-railway company to carry passengers greatly in excess of the seating capacity of its...
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