Pray v. Omaha St. Ry. Co.

• Decision Date: 05 March 1895
• Citation: 44 Neb. 167,62 N.W. 447
• Parties: PRAY v. OMAHA ST. RY. CO.
• Court: Nebraska Supreme Court

44 Neb. 167

62 N.W. 447

PRAY

v.OMAHA ST. RY. CO.

Supreme Court of Nebraska.

March 5, 1895.

Syllabus by the Court.

1. It is not such negligence for a passenger to stand on the front steps of a crowded street car, while in motion, as will per se prevent a recovery for injuries received in consequence of the negligence of persons in charge thereof.

2. It is evidence of negligence on the part of a street-railway company to carry passengers greatly in excess of the seating capacity of its trains, and permitting them to stand on the platform and steps of the cars.

3. A person standing on the steps of a moving street car, being unable to secure a seat or standing room within, is presumed to be there with the consent of the servants in charge of the train.

4. Street-railway companies, in this state, are common carriers, and are presumptively liable for the concurrent negligence of their servants and third persons resulting in personal injuries to passengers.

5. The plaintiff, a lad of 14 years of age, boarded the defendant's train at South Omaha, bound for the city of Omaha. When he reached the train, which was waiting at the terminus of the line, it was so crowded that he was unable to get inside, but secured standing room on the rear platform of the trailer. When the first stop was made, four blocks distant, he stepped off the train to allow a fellow passenger to alight, and was unable to get upon the platform again, his place being occupied by other passengers. He went forward immediately, and secured standing room on the front step of the trailer, holding on to the dashboard and to the iron rail attached to the car for the distance of a block, when he was forced, by the pressure of the other passengers on the platform, to relinquish his hold, and fell, receiving the injuries complained of. There was evidence tending to prove that the pressure which forced him off the train was occasioned by the conductor forcing his way through the crowd while engaged in collecting fares. Held, that the question of negligence was for the jury, and that it was error to direct a verdict for the defendant.

Error to district court, Douglas county; Davis, Judge.

Action by George Pray, a minor, by his next friend, John Pray, against the Omaha Street-Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.John O. Yeiser, for plaintiff in error.

John L. Webster, for defendant in error.

POST, J.

About 6 o'clock p. m. of the 29th day of November, 1892, the plaintiff, a lad 14 years of age, employed in one of the packing houses at South Omaha, boarded one of the defendant's motor trains, in order to reach his house, in the city of Omaha. When he approached the train, which was then waiting at the southern terminus of the line, he observed that the seats were all occupied, and that there was not even standing room remaining inside. He, however, secured standing room on the rear platform of the trailer, where he remained until the train started, about five minutes later, and until it made the first stop, four blocks distant, for the purpose of allowing a passenger to alight. At that point he was, according to his testimony, on account of the pressure of passengers from within, compelled to step from his position to the ground, in order to make room for the passenger above mentioned, when his place was immediately filled by other passengers, leaving no standing room on the platform. As the train was in the act of starting again, he went forward, and took a position on the right front step of the trailer, but was unable to get upon the platform, on account of the crowd thereon. He, however, remained clinging to the rod attached to the car and dashboard, holding a dinner pail in one hand, until the train had run the distance of one block, when he was forced to relinquish his hold, on account of the pressure of the other passengers, and fell, receiving the injuries complained of. He testifies further that the pressure which forced him from the train was occasioned by the movement of the passengers on the platform, but the cause of such movement he does not attempt to explain. Another witness testifies that the conductor was, when the accident occurred, near the front door of the trailer, and going forward, in the act of collecting fares; so that a reasonable inference is that the movement of the passengers on the front platform was caused by the approach of the conductor, forcing his way through the crowd. The district court, on the conclusion of the plaintiff's case, directed a verdict for the defendant, and which is the ruling now assigned as error.

It is necessary to notice but a single allegation of the petition, viz.: “That said defendant, through carelessness and negligence in not providing cars enough for the transportation between said points, caused a dangerously large crowd of people to board said car, on which the plaintiff was a passenger; that the said defendant, through its agents and servants, when said car on which the plaintiff was a passenger was loaded with all the passengers it could safely carry, negligently and carelessly suffered and permitted a large additional number of people to board said car, and overcrowd the same; that by reason of so dangerously large a crowd, negligently and carelessly suffered and permitted on said car by defendant, the plaintiff was forced off said car to allow fellow passengers to alight therefrom; that immediately plaintiff proceeded to re-enter said car, and before he could reach a safer position, while standing upon the steps, * * * the crowd so negligently and carelessly permitted upon said car * * * shoved back, to get room, and were forced back by the conductor of said line, one of the defendant's servants, while engaged in collecting the fares from said crowd, which pushed against the plaintiff with such force as to break his hold, and to throw him from said moving train; that in said manner plaintiff was crowded off of said car by defendant's negligence and carelessness.” It was held in Spellman v. Rapid Transit Co., 36 Neb. 890, 55 N. W. 270, that street-railway companies are common carriers of passengers, and, as such, are answerable for the negligence of...