Citation Numbers: 89 A. 337, 36 R.I. 149
Judges: VINCENT, J.
Filed Date: 1/28/1914
Status: Precedential
Modified Date: 1/13/2023
This is an action of trespass on the case for negligence and was tried to a jury in the Superior Court, in Kent County. At the conclusion of the testimony for the plaintiff, the presiding justice, on motion of the defendant, adjudged the plaintiff nonsuit to which the plaintiff duly excepted. Said exception is now before this court.
The plaintiff claims that the Superior Court erred in granting the defendant's motion for a nonsuit because (1), whether or not plaintiff was guilty of such contributory negligence as would bar him from recovery was a question for the jury; that (2), the plaintiff's case was sufficiently made out and the proof of the proximity of the tree to the tracks was sufficient to show negligence on the part of the defendant; and, therefore, the question as to the negligence of the defendant should have been left to the jury.
It appears from the evidence that on Sunday morning, July 21, 1912, the plaintiff boarded one of the defendant's cars, bound to Providence, at or in the vicinity of the village of Natick and seated himself upon the extreme left of the second seat from the rear end, being one of the smoking seats, so-called. The guard rail on the left hand side of the car was down. The plaintiff was smoking a cigar. When the car was turning from Reservoir Avenue into Elmwood Avenue, the plaintiff in flicking the ashes from his cigar extended or thrust his left hand over the guard rail and a sufficient distance beyond the side line of the car to bring the heel of the palm of the hand in contact with the trunk of a tree standing beside the track, the force of the blow breaking his wrist.
In his testimony at the trial the plaintiff admitted that he had been a passenger upon this line of the defendant's cars once or twice a week for a period of twelve years and that during that time he had known of the trees along the side of the track. The plaintiff also testified that when he extended his hand in flicking the ashes from his cigar he did not look to see where his hand was going. *Page 151
The evidence does not show definitely the distance to which the plaintiff must have extended his hand to bring the heel of the palm in contact with the tree. He estimates the distance at not more than six or seven inches but it is evident that six or seven inches would not carry it beyond the line of the car. Adding to the line of the car the measurement of the hand from the end of the fingers to the heel of the palm, which would be some five or six inches, it is evident that the plaintiff is mistaken as to the distance to which he extended his hand, a mistake which is not surprising as he confessedly was paying no attention to what he was doing. It is not, perhaps, under the circumstances of this case, important to determine the exact distance which the plaintiff extended his hand beyond the guard rail. That he extended it a considerable or substantial distance is clear from his own testimony and the testimony of other witnesses. The plaintiff admits that in extending his hand beyond the guard rail he did so with the full knowledge that there were trees in close proximity to the track and that he did not look or make any effort whatever to ascertain the safety of the movement which he was about to make. While the position of the guard rail would deter passengers from alighting from that side of the car it would also be a notice to them to keep their bodies and limbs within the same and not expose themselves beyond the line thereof.
The great weight of authority in this country seems to support the proposition that a passenger upon a car who rides with his arm or hand out of the window or otherwise allows his hand or arm to extend outwardly beyond the side line of the car is not in the exercise of due care, but is guilty of contributory negligence. Elliott on Railroads, Volume 4, Section 1633; Todd
v. Old Colony Ry., 3 Allen, 18; Cummings v. Worcester, etc.,Ry.,
Many other cases, to the same effect, cited in the opinions are not included in the above.
The plaintiff has cited numerous authorities in support of his contention that the trial court erred in granting the nonsuit and that the question of the plaintiff's contributory negligence should have been left to the jury. All of these cases have been carefully examined and we think that they are readily distinguishable from the case at bar. In some of them the question of the plaintiff's contributory negligence rested upon disputed facts while in others the questions raised by the facts were those upon which reasonable minds might differ. In the case at bar, as we have already seen, there are no material disputed facts, and reasonable minds could hardly differ as to the plaintiff's contributory negligence when he admits that the guard rail was down, that he knew of the proximity of the trees, and that he did not even take the precaution to look before thrusting his hand out beyond the line of the car. Without attempting to distinguish each and all of the cases which the plaintiff cites in his brief and point out the features which distinguish them from the case at bar, a reference to some of them may be advantageous.
In the case of Elliott v. Newport Street Ry. Co.,
In the case of Dahlberg v. Minneapolis Ry. Co.,
In the case of Kird v. New Orleans R.R.,
In Francis v. N.Y. Steam Co.,
The other cases cited by the plaintiff are as readily distinguishable from the case at bar as the cases to which we have specifically referred and we do not think that they need to be separately considered.
We think that the nonsuit was fully justified by the evidence. The plaintiff's exception is overruled and the case is remitted to the Superior Court with direction to enter judgment for the defendant upon the nonsuit.