Pray v. Omaha Street Railway Company
| Decision Date | 05 March 1895 |
| Docket Number | 6453 |
| Citation | 62 N.W. 447,44 Neb. 167 |
| Parties | GEORGE PRAY v. OMAHA STREET RAILWAY COMPANY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before DAVIS, J.
REVERSED AND REMANDED.
John O Yeiser, for plaintiff in error:
Street railway companies are common carriers of passengers and are liable for the slightest negligence.
Ordinary care in protecting himself is all that the law requires of a passenger. (Sheridan v. Brooklyn C. & N. R. Co., 36 N.Y. 39; Thurber v. Harlem B. M. & F. R. Co. 60 N.Y. 131.)
The crowded condition of the car was evidence of negligence. The act of plaintiff in standing on the step of a moving car was not such contributory negligence as would prevent a recovery for personal injuries. The court therefore erred in directing a verdict for defendant.
John L. Webster, contra, cited: Nichols v. Middlesex R. Co., 106 Mass. 463; Pitcher v. People's Street R. Co., 26 A. [Pa.], 559; Chicago West Division R. Co. v. Mills, 91 Ill. 39; Sanford v. Hestonville, M. & F. P. R. Co., 136 Pa. 84.)
The opinion contains a statement of the case.
About 6 o'clock P. M. of the 29th day of November, 1892, the plaintiff, a lad fourteen 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 home 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 dash board, 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 paragraph 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 in 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. Lincoln 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 their servants upon the principles of the common law; that in providing for the safety of passengers they are bound to exercise the highest degree of care and diligence consistent with the nature of their undertaking, and are responsible for the slightest negligence on the part of their employes. If it be true, as appears from the plaintiff's evidence, that the defendant's servants in charge of the train undertook to carry a number of persons greatly in excess of its capacity, so that passengers, including the plaintiff, were compelled to stand on the platform and steps of its cars, and the injury complained of is the direct result of such overcrowded conditions, that fact must, in the light of the authorities hereafter cited, be regarded as evidence of negligence; but it is said that the act of riding on the overcrowded train, and particularly on the steps of the trailer, is, under the circumstances of this case, per se, contributory negligence, which will prevent a recovery. In the consideration of that question it is deemed necessary to examine some of the authorities which seem to bear directly upon the subject.
In Ray, Negligence of Imposed Duties, 43, it is said that the front platform of a crowded street car is not a place of known danger so as to render it negligence per se for an adult person to stand thereon while the car is in motion.
In Germantown P. R. Co. v. Walling, 97 Pa. 55, the plaintiff voluntarily got upon a car so crowded that he was obliged to stand on one of the steps of the platform, which was also occupied by two other persons, and where, in order to retain his position, he was required to hold with one hand to the dashboard and with the other to the iron bar under the window of the car. The court, referring to the question of contributory negligence, say:
In Meesel v. Lynn & B. R. Co., 8 Allen 234, it is said ...
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