Dunlay v. United Traction Co.

Opinion by

W. D. Porter, J.,

The language of the court complained of in the first specification of error seems to have been fully warranted by the Evidence. The rule of the company, to which the learned judge referred, was shown by the evidence to have been enacted for the protection of the machinery and not for the safety of the passengers. The term “ bucking of the car,” used in the rule, seems to have had a peculiar significance among the employees of that line. It referred to an irregularity in the action of the machinery by which the car was propelled. It was described by John Murphy, defendant’s superintendent, as “ a sudden stoppage of the motor, trying to reverse itself; ” “a jerking of the motor; ” “ it checks the movement of the car.” This witness testified that when this occurred the car was disabled. The rule required the motorman who found this condition of the car to exist, to stop and have the following car push the one disabled to the shed. This witness testified that the danger was “ to the motor, not to the controller.” He went further, however, and testified: “ The danger to the motor is of the resistance being burned out, and the current getting from the copper wire to the iron pole-pieces.” He had already testified that the controller consisted of the resistance coils and a lever used in connection with them, by which the coils were interposed to retard the current, or cut out so as to permit the full current to reach the motor. It thus appears that the usual and ordinary consequence of using the machinery after it had exhibited symptoms of bucking was the burning out of the resistance coils, which were a part of the controller, and the purpose of the rule was to prevent this and the resulting injury to the motor. The rule was, therefore, corroborative of the testimony of the moterman, that when a car bucked there was danger of the controller burning out. There was no error in so saying to the jury, and the first specification of error is dismissed.

The complaint of the language of the court which is the subject of the second specification of error is that it refers to “ this grinding and thumping noise which is called bucking.” The witnesses had used various terms in describing the peculiar action of the machinery of the car. Some of them had referred to it as a thumping or rasping sound from underneath the car; others had called it a kind of a jerking of the car, while others had said it was a ripping sound under the car. The motorman had testified that, when a car bucked, there was a kind of rumbling noise of the machinery. The jury could not have been misled by this reference to the terms used by the witnesses, in describing the peculiar sound produced by the machinery while in this disabled condition. The motorman testified unequivocally that when a car bucked it indicated that there was danger of an explosion of the controller, but denied that this car had exhibited any symptoms of bucking. The court left the question of fact to the jury in a charge so clear that the defendant has no ground of complaint.

The request of the defendant for binding instructions was properly refused. The plaintiff had offered evidence which, if believed, warranted a finding that the motorman continued to operate the car after, he ought to have known that, unless he stopped, the usual and ordinary result would be the burning out of the controller. This testimony was contradicted by the witnesses of the defendant. The court left the question of fact to the jury, and instructed them that if upon this question they found in favor of the plaintiff, then, “ you have to consider whether it would have been the part of an ordinarily prudent man to have anticipated that this was likely to produce a panic and injury to the passengers, and that it was his duty either to stop for the aid of another car or to stop and caution the passengers so as to avoid this panic, but if there was no thumping or bucking or any premonitory symptoms of an explosion, then there is no evidence up to this point of any negligence which would make the defendant company liable.” It is, however, contended on behalf of the defendant that the panic which resulted from the explosion of the controller was a reckless stampede which no reasonable prudence could have foreseen as likely to occur. The defendant offered no evidence which seemed to indicate that there was anything unusual attendant upon the burning of this controller; we must therefore assume that they ought to have foreseen just what did follow the negligent act in this case, if the motorman was guilty of negligence. There was a flash from the controller and the flames continued while the car was running a square and a half; the motorman was, at least temporarily, interfered with in the use of the lever and the brake by which he usually controlled the movement of the car; and the passengers in a crowded car saw it with its front platform apparently on fire running through the street of a city at a high rate of speed, not subject to the control of those whose duty it was to operate it. We cannot say that there was nothing in this condition of affairs to justify a finding that there was an appearance of actual impending danger, and that there existed a reasonable cause of alarm. If the burning out of this controller had presented unusual incidents, if the explosion had been extraordinarily violent or the resulting fire greater than could have been foreseen as likely to follow the negligent act, other questions would have been involved, but we have here nothing of that kind. The appearance of danger was caused by the negligent manner of operating the car, and the conditions were such that it was not for the court to say that a panic ought not reasonably to have been expected to result. The question was for the jury.

The plaintiff offered evidence which, if believed, warranted a finding that the motorman was guilty of negligence after the fire occurred, even if there was no negligence in the manner of his operating the car prior to that event. Several witnesses testified that the motorman after the explosion abandoned his post and jumped over the back of the front seat of the car, which was the ordinary summer car and crowded with passengers, leaving the car to run wild. The evidence clearly established that the motorman was in no danger at his post on the front platform, although the fire prevented his moving the lever of the controller and interfered, temporarily, with his use of the brake. The motorman testified that he knew these facts. The defendant requested the court to charge the jury that, even if they believed that the motorman did so jump back into the car, there was no evidence that he pushed Mrs. D unlay off the car, and there could be no recovery. The refusal of the court to so charge is made the subject of the fourth assignment of error. The learned judge of the court below, in connection with the refusal of this point, instructed the jury that if they found that this action of the motorman created a panic and that panic was such that this was a natural and proximate result of it, then the company might still be liable. In this there was no error. If the motorman, when he was in no danger, abandoned his post and in full view of the passengers upon a crowded car, many of whom were women and children, jumped over the back of a seat among the passengers, leaving the car to run uncontrolled and apparently on fire, it was for the jury to say whether the act was not negligent and such as to necessarily throw the passengers into a panic and reasonably lead them to the conclusion that they were in imminent peril. There was here sufficient evidence to warrant a finding that the negligent act of the employee of the defendant company gave rise to a reasonable apprehension of danger upon the part of the passengers, and caused a panic in which the plaintiff was injured. The court would not have been warranted in withdrawing this evidence from the consideration of the jury.

The judgment is affirmed.