Watson v. Portland & C. E. Ry. Co.

• Decision Date: 13 June 1898
• Citation: 91 Me. 584,40 A. 699
• Parties: WATSON v. PORTLAND & C. E. RY. CO.
• Court: Maine Supreme Court

40 A. 699

91 Me. 584

WATSON

v. PORTLAND & C. E. RY. CO.

Supreme Judicial Court of Maine.

June 13, 1898.

(Official.)

Exceptions from supreme Judicial court, Cumberland county.

Action by Albert N. Watson against the Portland & Cape Elizabeth Railway Company. Defendant had judgment, and plaintiff brings exceptions. Exceptions sustained.

This was a suit for injuries sustained by the plaintiff, who was thrown from the platform of the defendant's car at Knightville, June 16, 1896, by reason of the car on which he was riding being carelessly run, as he alleged, upon an open switch leading from the main line to the car barn at a rapid rate, the angle of the switch being 50 degrees. The jury returned a verdict for the defendant, being ordered to do so by the court.

The plaintiff's counsel requested the court to give the following instructions; but the court declined to do so except as appears in the charge given below:

"(1) Standing on the front platform of a car, even if there is standing room inside, is not of itself conclusive evidence that a person injured by the negligence of the persons managing the car was not in the exercise of due care.

"(2) That calling for and receiving fare from persons standing on the front and rear platforms of a car authorizes the jury to find that those so riding had been invited by those having charge of the car to ride in that place, and that implied assurance had been given by them that that was a suitable and safe place for them to ride.

"(3) That where negligence on the part of the plaintiff is connected with the cause of injury, the question to be determined is whether the defendant, by the exercise of ordinary care and skill, might have avoided the injury. If he could have done so, the negligence of the plaintiff cannot be set up as an answer to the action.

"(4) That if the running of the car upon the switch was the direct cause of the accident, and the running onto the switch could have been prevented by proper care and due diligence on the part of defendant's agents, if the other evidence in the case warrants it, the jury would be authorized to find for the plaintiff."

Charge to the Jury.

"This action, like the action which was first tried before you this term, is based on the alleged negligence of the servants of the defendant railroad company. I have had occasion to instruct you heretofore that, to entitle the plaintiff in an action like this to recover, the burden is upon him to prove not only the negligence of the railroad company, or of its servants, but that he himself was in the exercise of due care; or, in other words, that his own want of due care did not contribute to produce the injury.

"The question of contributory negligence, as it is called, is ordinarily a question of fact for the jury upon the evidence in the case; but there are a few cases where the evidence is of such a character that there is really no dispute about the facts, and it becomes a question of law for the court as to whether or not the plaintiff was in the exercise of due care.

"It is settled law in this state that the riding upon the platform of a passenger car upon a railroad is such negligence on the part of the passenger as will bar his recovery for injuries sustained by being thrown from the platform in rounding a curve.

"It is settled as a legal question that one who rides upon the platform of a car, and is injured by being thrown from it as the car rounds a curve, is guilty of contributory negligence.

"Now, giving the evidence in this case the most favorable view possible for the plaintiff,—even taking his own statement of how the accident occurred,—you perceive that there is no possibility, such being the law, of your rightfully returning a verdict for the plaintiff. You could not do it without violating a rule of law, because, taking the most favorable view possible of the evidence in the case, there is no dispute about the fact that at the time of the plaintiff's injury he was voluntarily riding upon the platform of the car. The car was crowded, undoubtedly; but there was standing room inside, according to the weight of the evidence. I do not understand that there is any dispute about it. And if he voluntarily took his position upon the platform, and was injured by being thrown off while the car was swinging around a curve, the fact that he was on the platform bars his right of recovery. There are so many accidents of this kind, caused by people persistently riding on the platform of cars, a place of known danger, that the law is now settled that, if they choose to ride there, they must ride at their own risk. Accidents might occur wherein the fact that a passenger was riding on the platform of a car would be no defense. For instance, if a rotten bridge should break down, and all on board the car should go down into the river below, the fact that a man was on the platform would not have anything to do with the accident; the rotten bridge would be the sole cause. But if a passenger is riding there, and is thrown off as the car rounds a curve, in such cases his being there is a bar to his recovery.

"Such being the law, I am requested by the learned counsel for the defendant to instruct you, taking the most favorable view of the evidence for the plaintiff, he is not entitled to a verdict in his favor, and I so instruct you. Therefore, Mr. Foreman, you will have nothing to do but to sign a verdict pro forma for the defendant of not guilty."

To the refusals to give the requested instructions the plaintiff was allowed exceptions. He also took exceptions to the order of the court to return a verdict for the defendant and the following portions of the charge:

"That the question of contributory negligence, as it is called, is ordinarily a question of fact for the jury upon the evidence in the case. That there was really no dispute about the facts, and it became a question of law for the court as to whether or not the plaintiff was in the exercise of due care."

"That the riding upon the platform of a passenger car upon the railroad is such negligence upon the part of the passenger as would bar his recovery for injury sustained by being thrown from the platform in rounding a curve."

"That it is settled as a question of law that one who rides upon the platform of a car, and is injured by being thrown from it as the car rounds a curve, is guilty of contributory negligence."

"That, giving the evidence in this case the most favorable view possible for the plaintiff,—even taking his own statement of how the accident occurred,—you perceive that there is no possibility, such being the law, of the jury rightfully returning a...