Watson v. Portland & Cape Elizabeth Railway Co.

Wiswell,'J.

The plaintiff, while riding upon the front platform of one of the defendant’s electric street cars, was thrown from the car by its sudden jolting, and, striking the ground with considerable violence, sustained more or less injury.

It is claimed that this was caused by the negligence of the motor-man in allowing his car to come towards a switch with such speed that he was unable to see whether it was properly set or not, and, the switch being open, that the car was propelled so rapidly onto a siding as to cause violent jarring and jolting.

After the evidence upon both sides had been closed the presiding justice directed a verdict for the defendant. To which direction exception is taken. It becomes necessary therefore to- decide, whether upon all the evidence, regarding it in the most favorable aspect for the plaintiff that it is susceptible of, the jury would have been justified in returning a verdict for the plaintiff.

Upon the question of the alleged negligence of thé defendant, it is only necessary to say that in our opinion there was sufficient evidence to submit this question to the jury. Was there also sufficient evidence upon the question of the plaintiff’s own care to sustain the burden of proof resting upon him in that respect?

The question of negligence is ordinarily one for the jury. It is always, so, not only when the facts are in dispute but also when the facts are undisputed but intelligent and fair-minded men may reasonably differ as to tbe conclusions and inferences to be drawn from such facts. Because, in passing upon this question, a jury must not only decide what was in fact done or left undone but also as to what should have been done in the situation. But this is not true when the facts are not in dispute and when the undisputed facts are susceptible of but one conclusion. In such cases it is not only proper but it is the duty of the court to take the case from the jury. Romeo v. Boston & Maine Railroad, 87 Maine, 540.

In this case the presiding justice in directing a verdict for the defendant gave certain reasons why, in his opinion, a verdict for the plaintiff would not be warranted and could not be sustained, saying, among other things, “ 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.” And again, “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.”

In our opinion this was not a correct statement of law when applied to a street railroad car, whether propelled by horses, electricity or otherwise. Riding upon the platforms of such cars is too much encouraged by transportation companies and too much indulged in by the public, for the court to say, as a matter of law, that the mere riding upon the platform of such a car is conclusive evidence of negligence, or is negligence per se, or is negligence in law. It depends upon too many other circumstances and condi-» tions for a court to lay down any hard and fast rule in regard to it; but it is a fact which should ordinarily be submitted to the jury in connection with all of the other circumstances of the case.

That this is true with respect to horse street cars is not questioned, and has been frequently decided. Meesel v. Lynn & Boston Railroad Co., 8 Allen, 234; Maguire v. Middlesex Railroad Co., 115 Mass. 239; Fleck v. Union Railway Co., 134 Mass. 480; Germantown Passenger Railway Co. v. Walling, 97 Penn. St. 55; Vail v. Broadway Railroad Co., 147 N. Y. 377; Nolan v. Brooklyn City & Newton Railroad Co., 87 N. Y. 63; (41 Am. Rep. 345) ; City Railway Co. v. Lee, 50 N. J. Law, 435.

But it is claimed upon the part of the defense, that while this is true in the case of a horse car, as to electric cars the rule laid down in this state and generally with respect to trains of cars upon steam railroads should apply. Goodwin v. Boston & Maine Railroad, 84 Maine, 203. We do not think so. An electric street car is still a street car, and in our opinion the conditions, especially with respect to riding upon platforms, are more similar to those of the horse street car than those of a railroad train upon a steam railroad.

It is a notorious fact that street railroad companies, whose ears are propelled by electricity, constantly accept and invite passengers to ride upon the platforms of their cars when there is no room inside, and that persons having occasion to use such cars are frequently glad for even a foothold upon the platform, step or foot-board. Neither carrier nor public have regarded the street car platform as a known place of danger, and we are not disposed to say, as a matter of law, that a passenger who rides upon the platform of an electric street car is thereby guilty of such contributory negligence as to prevent bis recovery for injuries sustained through the fault of an employee of the transportation company. We hold rather that it is a circumstance to be submitted to and decided by the jury.

Such is the conclusion that many of the courts of this country have arrived at. Elliot v. Newport Street Railway Co., 18 R. I. 707, (23 L. R. A. 208): Pray v. Omaha St. Railway Co., 44 Neb. 167; Wilde v. Lynn & Boston R. R. Co., 163 Mass. 533; Reber v. Pittsburg & B. Traction Co., 179 Penn. St. 339.

It is further urged by counsel for defendant that the verdict was properly ordered, even if the reasons given therefor by the presiding justice cannot be sustained: that if' the court should hold that a person cannot be said, as a matter of law, to be guilty of negligence from the mere fact that he was standing upon the platform of an electric street car in motion, that this plaintiff was - nevertheless negligent in not taking such precautions as the obvious and usual dangers of his position required; and that it is immaterial that the reasons given by the presiding justice in ordering a verdict were erroneous, if upon the facts the verdict was properly ordered.

There is no question about the correctness of these propositions of law. A passenger who rides on the platform of a car necessarily takes upon himself the duty of looking out for and protecting himself against the usual and obvious perils attendant upon his position, such as, for instance, the danger of being thrown from the platform by the jolting or swaying of the car. Elliot v. Newport Railway Co., supra.

But the court is of the opinion that the evidence in this case does not sustain the defendant’s contention, that is, in the opinion of the court, the evidence does not so clearly show contributory negligence upon the part of the plaintiff as to authorize the withdrawal of this question from the determination of the jury. The case comes within the general rule, that the question of negligence is ordinarily one for the jury and not within the exception, that when the facts are undisputed and are susceptible of but one conclusion it is the duty of the court to take the case from the jury. The entry will therefore be,

Exceptions sustained,