Nieboer v. Detroit Electric Railway

Citation128 Mich. 486,87 N.W. 626
CourtMichigan Supreme Court
Decision Date22 October 1901

Error to circuit court, Wayne county; William L. Carpenter, Judge.

Action by Peter H. Nieboer, by John H. Nieboer, his next friend against the Detroit Electric Railway. From a judgment for plaintiff, defendant brings error. Reversed.

Plaintiff about 6 o'clock p. m. desired to take one of the defendant's cars on the usual route to his home. Under the plea that the car was crowded, he climbed upon the deadwood or 'bumper' at the rear of the car. The deadwood is a block of wood 3 feet long at the longest part beveled at the corners, about 6 inches wide, and at the outside is from 2 feet 4 to 2 feet 6 inches long. Two large bolts go through the deadwood, and are bolted to a cast iron drawhead in the center. A drawpin an inch thick goes through the deadwood into the drawhead. Above the head of the deadwood are the bolts with the nuts thereon, the head of the drawpin, the staple to which the drawpin is fastened, and the chain attached thereto. The slack of the chain is also on top of the deadwood. The car platforms are inclosed for a space about 3 feet high, with a railing on top. The car was evidently in a crowded condition. Whether plaintiff could have obtained standing room on the platform or inside of the car in not clear. There was room for the conductor to go through the car and collect fares. Plaintiff testified that he was riding with both feet on the deadwood and both hands hold of the railing, and that it was necessary for him to thus ride to keep from falling off. Two others got on and stood upon the deadwood with him, plaintiff being in the center. Cars were running at intervals of from two to three minutes. The car on which plaintiff was riding had stopped. A rear car was approaching. The motorman, evidently not anticipating that the car in front would stop at that point was unable to bring his car to a stop before it struck the one in front. The blow was not a severe one, and no one in either car was injured but the plaintiff. In some way his ankle was injured. He was unable to tell how. Either his foot must have been hanging over the deadwood, or he must have been standing with his foot at right angles with the deadwood, so that either his heel or toes extended beyond it. Plaintiff testified that the conductor had not asked him for his fare. The conductor testified that he asked him for his fare, and that plaintiff replied that he would have to wait until he got his hands in his pockets. The conductor then said to him, 'You better get around and get inside, or wait for the car,' and then went through the car to collect fares. The conductor did not collect his fare, but intended to return and collect it after he collected the fares of the other passengers. Before he returned, the accident happened. The case was submitted to the jury, who rendered a verdict for the plaintiff.

Montgomery C.J., and Moore, J., dissenting.

Thomas T. Leete, Jr., for appellant.

Ira A. Lieghley, for appellee.

GRANT, J. (after stating the facts).

Plaintiff was not invited to ride upon the deadwood. No custom was shown permitting him to ride there. The company had instructed its employ�s not to permit it. It was not intended or sanctioned for the use of passengers. It needs no argument to demonstrate that the position was a dangerous one, and never intended as a place for passengers to ride. The place was so dangerous that the plaintiff considered it necessary to hold on with both hands. According to his own theory, then, it was a place where it would be next to impossible for him to pay fare. There was danger in rounding curves, from sudden stoppage and starting, and from collision both in front and from the rear, which are not of uncommon occurrence. The two passengers who were standing with plaintiff jumped from the car, which was then standing still, and escaped injury. Plaintiff testified that he did not have time to jump. There was neither an express nor implied assent for the plaintiff to ride in this dangerous position. The conductor advised him not to ride there, by telling him that he better get off and wait, or get inside. This language cannot be construed into an invitation. It was a busy time, when people were returning from their work and business to their homes. The conductor was not called upon to stop and put the plaintiff off. He had done all that was required in warning, if, indeed, he needed any warning. Plaintiff knew that, if the car was crowded, others were coming within two or three minutes, which he could have taken, and the testimony shows that there was room on the next car. Plaintiff voluntarily, and without invitation or permission, chose to ride in a dangerous place, rather than attempt to get inside or to wait a few minutes for another car. His negligent act was a continuing one, and directly contributed to the injury. When a place is one not provided or intended for passengers to ride upon, and is in itself dangerous, the employ� who assumes to permit a passenger to ride in such a place acts without authority, unless such authority be shown expressly or by common custom. The case comes within the principle established by the following authorities: Chamberlain v. Railroad Co., 11 Wis. 238; Jackson v. Crilly, 16 Colo. 103, 26 P. 331; Railroad Co. v. Miles, 40 Ark. 298, 48 Am. Rep. 10; Carroll v. Transit Co., 107 Mo. 653, 17 S.W. 889; Railroad Co. v. Jones, 95 U.S. 439, 24 L.Ed. 506; Bard v. Traction Co., 176 Pa. 97, 34 A. 953, 53 Am. St. Rep. 672. The last case is the parallel of this in its facts, except that the conductor in that case did not know that the plaintiff was standing upon the bumper. We have examined all the cases cited in support of the plaintiff's contention, and we think they are not applicable to this case.

Judgment reversed, and no new trial ordered.

HOOKER and LONG, JJ., concurred with GRANT, J.

MOORE J. (dissenting).

The plaintiff recovered a judgment of $2,000 against defendant for injuries received while he was riding on the deadwood of a car. The injuries were caused by a car following the one upon which plaintiff was riding running into him. The case is brought here by writ of error. The plaintiff, when hurt, was 20 years old. When he attempted to board a car, it was full of passengers. He, with two others, stepped upon the deadwood of the car, which was a piece of wood on the outside of the rear platform, from which it projected. It is a little over 6 inches wide, and nearly 3 feet long. It was put on the car to enable a coupling to be made with another car. The drawbar runs into it, and a coupling pin drops through it into the drawbar. It would also serve as a bumper in case of a rear-end collision. It was separated from the rear platform by a railing a little more than 3 feet high, and was not intended for the use of passengers, though it was sometimes used by them when the car was crowded. After verdict, a motion was made to set aside the verdict. Upon overruling the motion, the trial judge filed a written opinion, which states so clearly the issues involved that we insert a part of it here:

'Plaintiff was injured while a passenger on one of defendant's cars. As the car was crowded, he and two others stood upon the deadwood outside the rear platform. While in this position he received an injury to his leg by a rear-end collision between the car upon which he stood and another car of defendant's following it. He was the only passenger injured, and the inference is clear that, except for the position he occupied, he also would have escaped. The case was submitted to the jury, who found a verdict for the plaintiff. Defendant moves for a new trial on the ground that the court should have decided, as a matter of law, that plaintiff's contributory negligence precludes recovery. I think that the position of the defendant is unsound, for two reasons: First, I do not think it can be held, as a matter of law, that plaintiff was guilty of contributory negligence; second, plaintiff's negligence, if contributory, was not so connected with his injury as to bar recovery. We will discuss each of these questions separately:
'(1) As a matter of law, was plaintiff guilty of contributory negligence? The evidence warrants, if it does not compel, the conclusion that the car was crowded. It warranted the inference that plaintiff occupied his position by consent of the conductor in charge of the car. That evidence consists of the conductor's own testimony. He testifies that he asked the plaintiff and the other two passengers who were with him on the projection to pay their fares. They replied that they were compelled to use their hands to maintain their position, and that therefore they could not then respond to his request. He then said, 'You had better get inside the car, or get off and wait for another car.' He then left them in this position, intending, as he said, to return later and collect the fare. It was left to the jury to say whether this did not amount to a permission to remain where they were. The conductor manifested his willingness to take fare from the plaintiff and his companions. It was only because they could not pay that he advised them to seek another position. The fact that he did not attempt to enforce his advice, that he gave them no opportunity to get off the car, that he moved away, intending to return and collect the fares at a more opportune time, clearly warrants the inference, if it does not conclusively prove, that what was said was clearly not intended as an order, and that the conductor understood that his advice was rejected, and permitted plaintiff and his companions to continue in this position. In determining whether or not plaintiff was

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  • Nieboer v. Detroit Elec. Ry.
    • United States
    • Michigan Supreme Court
    • October 22, 1901
    ...128 Mich. 48687 N.W. 626NIEBOERv.DETROIT ELECTRIC RAILWAY.Supreme Court of Michigan.Oct. 22, Error to circuit court, Wayne county; William L. Carpenter, Judge. Action by Peter H. Nieboer, by John H. Nieboer, his next friend, against the Detroit Electric Railway. From a judgment for plaintif......

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