Railway Co. v. Heixner. than horse power. The strict rule in force regarding the negligence of a person alighting or boarding an ordinary train of steam cars had for it many good and sufficient reasons, which are not applicable to the electric car, as in general use. In the latter case, stops are frequent, and opportunity for great speed is not presented. Steps for passengers are near the ground, and the chances of a misstep or fall are not so great as in steam cars, as constructed. Streets on such lines are generally paved, and in that respect passengers may as safely depart or board such cars in one place as another, whereas, in the case of steam cars, platforms are generally provided. While in electric cars the possibilities of speed are greater than in the case of horse cars, yet the general operation and management of such cars so nearly approaches to that of horse cars that it must be held that the same rule of law which, in the cases cited and a long line of other cases, holds that it is not negligence per se to board or depart from such cars while in motion, is also applicable to electric cars. It follows, therefore, from this application of the rule, that in the case at bar it was solely a question of fact as to whether or not there was negligence in the acts of the defendant, or contributory negligence on the part of the plaintiff. There was evidence tending to prove the facts alleged in the declaration, and it was not error in the trial court to refuse the general instruction asked. It was proper for the court to submit the question to the jury. NOTE.-See note to Danville St. Car Co. v. Payne, post. State v. Railway Co. THE STATE OF MARYLAND TO THE USE OF MARY SHARKEY V. LAKE ROLAND ELEVATED RAILWAY COMPANY. Maryland Court of Appeals, June 18, 1896. ELECTRIC STREET RAILWAY-INJURY TO PASSENGER CONTRIBUTORY NEGLIGENCE. A passenger who, though acquainted with the line and with its dangers, and in spite of a warning notice conspicuously placed in the car, steps upon the foot board of a moving trolley car for the purpose of alighting, his body being outside the car, and is struck by a trolley post, and injured, is guilty of contributory negligence which bars recovery against the railway company. APPEAL by plaintiff below from judgment of Baltimore Superior Court. M. R. Walter, Joseph S. Heuisler and Charles M. Heuisler, for the State. I. N. Steel, J. E. Semmes and F. K. Carey, for appellee. RUSSUM, J.: This is an appeal by the plaintiff below from the rulings of DOBLER, J., sitting in the Superior Court of Baltimore city without the intervention of a jury, in a suit brought by the appellant (plaintiff below) against the appellee for the recovery of damages for the death of the husband of the equitable plaintiff, caused by the alleged negligence of the appellee. The appellee runs and operates an electric railway, for the transportation of passengers only, from the corner of North and Fayette streets, in Baltimore city, to Roland Park, in Baltimore county. There were two sets of tracks, running north and south, on Roland avenue, the distance between which was 61 inches. The wires supplying the electric fluid by State v. Railway Co. which the cars are propelled are supported by poles, ten inches in diameter, planted between these tracks. The car on which this accident occurred was an open or summer car, and was constructed without guards so that passengers could enter or alight on either side. It had eight or ten rows of seats running transversely, and a footboard on each side, extending its entire length. This car projected one foot over the tracks and the footboard six inches additional, making the entire projection eighteen inches. On the morning of September 11, 1894, James T. Sharkey, the husband of the equitable plaintiff, boarded this car on its trip north to Roland Park. He had often ridden on it before, and always got off at Cold Spring lane. He took a seat on the left side, the fourth row from the rear. After the car left Heath Brook Station, and while it was some distance from Cold Spring lane, he looked back several times, but the conductor who was at the rear end, with his manifest in his hand, preparing to make it up, did not see him. He then arose, and placed his left foot, which was nearest, on the foot rail, as if to alight, caught with both hands the two uprights between the benches, one in each hand, and was turning around and motioning the conductor, and while in that position, and while the car was some distance from Cold Spring lane, and moving rapidly, was struck by one of the poles. planted between the tracks, thrown from the car, and died in about two hours afterwards. At each end of the car there was a notice warning passengers (1) against riding on the platform, or putting their heads or arms out of the windows; (2) prohibiting jumping on or off the car while in motion; (3) that cars stop for passengers at cross streets only; (4) against attempting to leave the car on the bridge over Stony Run, at any point, or on the elevated railway, except at stations; and (5) admonishing them that “loss of life or injury to persons may result from a violation of that notice." At the close of the testimony the defendant State v. Railway Co. offered a prayer asking the court "to give judgment in its favor against the plaintiff, because the undisputed evidence in the case shows that the death of the said Sharkey was directly contributed to by his own negligence," which was granted, and from this ruling this appeal is taken. There is no difficulty about the law applicable to the facts just set forth. There being direct evidence of the cause of the injury, there is no room for the invoking of a presumption in regard to it, because the proof of the fact rebuts the presumption. Andrews case, 39 Md. 329; Philadelphia, &c. R. Co. v. Stebbing, 62 Md. 518. The responsibility of the appellee for the safe carriage of passengers is founded upon contract. The law casts on it the obligation of providing safe means of transportation, and the employment of skilful agents; and, while it is responsible for the consequences of any failure or omission in this respect, as well as for the negligence of its agents, there is also imposed on the passengers the duty to obey the reasonable regulations of the company in entering, occupying and leaving its cars; and nothing less than some existing necessity, beyond his control, can justify a passenger in a breach of his contract, and render the company liable for injuries received in consequence of a known violation of such regulations. Pennsylvania R. Co. v. Zebe, 33 Pa. St. 318. And this court has uniformly held that in such a case the question of negligence on the part of the passenger is a legal question for the court to decile. Wilkinson's case 30 Md. 233; Andrew's case, 39 Md. 329; Cason's case, 72 Md. 377. In this case the undisputed evidence shows that Sharkey had frequently ridden on this car, that the warning against jumping off the car while in motion was conspicuously posted, and that by the exercise of reasonable care he could have known what was necessary for his own safety. The accident was the direct result of his infraction of the rules of the company, State v. Railway Co. made for the safety and protection of those who traveled in its cars. There was suitable and sufficient provision made within the cars for all the passengers. There was ample room to have turned around inside the car, and attracted the attention of the conductor either sitting or standing; but, instead of availing himself of this means, he, voluntarily, and without any occasion therefor, took an exposed position, placing one foot outside, and, with his body beyond the car line, attempted to alight from a rapidly moving car, with his back to the poles, which he knew were there. Andrew's case, 39 Md. 329; Leonhardts case, 66 Md. 70; Cason's case, 72 Md. 382. The case of Baltimore & Potomac R. Cp. v. Swann, 81 Md. 400, has been earnestly pressed upon us to sustain the appellant's contention as to negligence on the part of the appellee in the location of the poles and in the arrangement and management of the car. In that case the female plaintiff had purchased a ticket, and had acquired a right to be conveyed in one of the carrier's passenger coaches. The carrier substituted a baggage car, and in the course of the journey she was injured; and this court held that negligence could not be imputed to the passenger because she took passage in the baggage car, when no other means was. offered; and that the questions whether the carrier had made diligent effort to procure a passenger car, and whether the baggage car was a safe vehicle, were proper questions to be submitted to the jury. In this case no such questions arise. The appellee had furnished passenger coach, which, so far as the record discloses, was a safe vehicle for the transportation of passengers, and in doing so fulfilled its obligation to carry the passenger safely, "so far as it could be done by the exercise of the highest degree of care and skill which was consistent with the undertaking." Nor is there anything in this case tending to impute any negligence to the appellee in the structure and care of its track, or in any of the sub a |