Car Co. v. Payne.

DUTY OF PASSENGER.- Held contributory negligence per se: In spite of warning notice posted in car, to step on foot-board and stand with back to trolley post known to be there, in attempt to alight from rapidly moving car. Maryland to use of Sharkey v. Lake Roland Elev. Ry. Co., ante, p. 412. To ride upon bumper of trolley car without knowledge of conductor. Bard v. Pennsylvania Traction Co., ante, p. 444. Held not contributory negligence per se: To attempt to board slowly moving trolley car. Cicero & Proviso St. Ry. Co. v. Meixner, ante, p. 404; Omaha St. Ry. Co. v. Martin, ante, p. 417. To alight from slowly moving car. Denver Tramway Co. v. Reid, ante, p. 399. To ride standing on foot rail of trolley car, there being no room within. Wood v. Brooklyn City R. Co. ante, p. 429. Or on the platform. East Omaha St. Ry. Co. v. Godola, ante, p. 424. Especially by direction of conductor. Reber v. Pittsburg and Birmingham Traction Co., ante, p. 446.

NOTE 2.-In McDonald v. Montgomery St. Ry., Alabama Supreme Court, May 21, 1896 (20 South. Rep. 317), held, proper to charge, in an action for injury to a passenger in alighting from a trolley car, that one alighting from a moving car assumes all the risks of alighting safely; also, that if he stood on the steps of a moving car when there was room to stand inside, he could not recover for injury caused by being thrown from the step by the motorman's negligence.

In East St. Louis Elec. St. Ry. Co. v. Sliger, Illinois Appellate Court, June 18, 1896 (65 Ill. App. 312), an action to recover for injury to a passenger by electric shock while entering a car, the court, in sustaining a judgment for defendant, say: “In damp weather the metallic parts of a car may become slightly charged with electricity by induction, and if appellant received a shock at all it was by stepping upon a metallic place thus charged. This condition of things had not existed under such circumstances and for such length of time as to affect defendant with notice of the fact."

66

In Minerva Boikens v. New Orleans & Carrollton R. Co., Louisiana Supreme Court, March 9, 1896 (19 South. Rep. 737), in sustaining a judgment awarding damages to plaintiff for injury while alighting from an electric car, the court say: Any person actually on the car, or in the act of getting off, is a passenger, and the company is charged with the duty of looking to his safety; and this involves the necessity on the part of the conductor of allowing the passenger time to get off the car. We are constrained to hold that a passenger who is violently thrown to the ground and injured by a car, too hastily set in motion, is entitled to damages."

In Sias v. Rochester Ry. Co., New York Supreme Court, General Term, Fourth Department, December, 1895 (92 Hun, 140), plaintiff's intestate, riding on a trolley car, on a dark night, went out of the car, which was not full, and stood on the platform, with the tacit consent of the conductor. He leaned out a little and was struck by a tree which came within five or six inches of the car, and had been cut away in part to make room for cars to pass. Held, that the questions of negligence and contributory negligence should have been submitted to the jury.

Mahoney v. Railway Co.

In Jagger v. People's St. Ry. Co. et al., Pennsylvania Supreme Court, March 22, 1897 (36 Atl. Rep. 867), held, that a street railway company is not bound by the practice of its employes of slowing trolley cars at a certain place to allow a passenger to alight. Whether or not it is contributory negligence per se to jump from a trolley car going four or five miles an hour is for the court to determine.

In Vasele v. Grant St. Elec. Ry. Co., Washington Supreme Court, March 17, 1897 (48 Pac. Rep. 249), held, negligent for a motorman to stop and hold his car at a place where it is dangerous for a person to undertake to board the car. Whether or not the passenger is negligent in trying to board the car at such place is for the jury to determine.

MARY MAHONEY AND OTHERS V. SAN FRANCISCO & SAN MATEO RAILWAY COMPANY.

California Supreme Court, December 17, 1895.

(110 Cal. 471.)

ELECTRIC STREET RAILWAY-DUTY TO TRAVELERS IN STREETS-CONTRIBU

TORY NEGLIGENCE.

An electric street railway has no exclusive use of any portion of the highway. Travelers have a right to presume that it will use its franchise in view of their rights. If the electric light is liable to go out by reason of the trolley leaving the wire, other lights should be provided. If its light is not sufficient to reveal an obstruction in time to stop the car when moving at a given speed, it should move more slowly. Held, not contributory negligence as matter of law for persons driving in a carriage, on a dark and foggy night, having the track of an electric railway on the one hand and a gulch on the other, to get upon the track even though there was sufficient space to drive clear of the track and they took no pains to avoid it.

Shea v. St. Paul City Ry. Co., 4 Am. Electl. Cas. 481, followed.

APPEAL by defendant below from judgment of San Francisco Superior Court.

The judgment was reversed upon errors in respect to the conduct of the trial and instruction to the jury.

Henley & Costello, for appellant.

Mahoney v. Railway Co.

Crittenden, Thornton, F. H. Merzbach and Garber, Boalt & Bishop, and J. F. Riley, for respondents.

TEMPLE, J.: This action was brought by the widow and six children of Florence Mahoney, deceased, to recover damages for his death, which they allege was caused by the negligence of the defendant.

A verdict of ten thousand dollars was rendered, and this appeal is taken by the defendant from the judgment, and from an order refusing a new trial.

The defendant was engaged in operating a street railway on which cars were propelled by electricity, by the overhead or trolley system. The accident occurred on the Old Mission road-a public highway-within the city and county of San Francisco, at about 10 o'clock, upon a dark and foggy night. Deceased and three companions were driving along on the highway, and took no pains to keep clear of the track, although there was sufficient space to enable them to do so. The driver testified at the trial: "The road was plenty wide there. There was plenty of room to keep away from the track. I kept closer to the track than the gulch, to be sure. I could not tell when I would strike a bowlder in the road. I did not drive far enough from the track to clear the car, my intent was to clear the ditch on the right hand side, without reference to the track. I did not aim to keep clear of the track at all. I depended upon the lights coming along, so we could see it or hear something, and then turn out of the way. I intended to rely upon hearing or seeing. I did not stop at any time to look or listen, for the reason I had people behind, and depended upon them. The noise of the vehicle and of the wind might to some extent interfere with my hearing an approaching car, but still we did not stop.'

The road at that point was descending at the rate of about two hundred and ninety feet to the mile in the

Mahoney v. Railway Co.

direction in which the party was traveling. Defendant's car coming up behind was proceeding by gravitation down the grade at a rate variously estimated as from ten to twenty miles per hour. It struck the wagon in which deceased and his companions were, killed the deceased, and very seriously wounded two others.

Appellant contends that the judgment should be reversed, because it was not shown that the deceased was without fault, and because it is so clear from the evidence that there was contributory negligence that no other rational conclusion can be drawn from it.

This contention cannot be maintained. The defendant had no exclusive use of any portion of the highway. Its right was to a use in common with the public, being peculiar only so far as its inability to move from its track made it so. Travelers upon the highway had a right to presume that it would use its franchise in view of the rights of others. If the light of the car was liable to go out because the trolley frequently jumps the wire, other lights should have been employed; and, if an obstruction cannot be seen by its light in time to stop the car, it should move at less velocity. Other travelers should use reasonable diligence to avoid obstructing the track, and it may be that, 'under some circumstances, a jury would be justified in finding it negligent for one to travel along the track; but it certainly is not negligence per se, and I see nothing in this case which would justify our reversing the verdict; on the contrary, I do not see how the jury could have found otherwise. The law applicable to [the matter is correctly stated in Shea v. Portrero Railroad Co., 44 Cal.

414.

NOTE.-See note to Hall v. Ogden City St. Ry. Co., post.

AMANDA P. EVERETT ET AL. V. LOS ANGELES CONSOLIDATED ELECTRIC RAILWAY COMPANY.

California Supreme Court, January 9, 1896.

ELECTRIC STREET RAILWAY.

It is contributory negligence, as matter of law, for a man of mature age, in good health, and in full possession of his faculties, having good eyesight and unimpaired hearing, to ride upon a bicycle upon the track of an electric street railway, in the same direction in which cars are accustomed to run on that railway, without looking or listening for the approach of cars.

The rule that one must look and listen before crossing the tracks of a steam railway applies equally when he is about to cross the track of an electric or cable railway.

The rule that the party causing the injury by his negligence may become liable in damages to the party injured, although the latter was himself negligent, applies only in cases where the person injured is in some position of danger from threatened contact of some agent under the control of the other party, when the former cannot and the latter can prevent the injury. It never applies where the negligence of the party injured continues up to the very moment of the injury or is a contribut ing or efficient cause of it.

The motorman of an electric car has the right to presume that a person traveling on the track in front of the car, to whom the customary warnings have been given, has made himself aware of the approach of the car and will either increase his speed or turn aside to avoid the danger which threatens him. Therefore, held, that the motorman was not guilty of negligence in not trying to stop his car until within ten or twenty feet of the traveler.

Cases of this series cited in opinion, appearing in bold faced type: Carson v. Federal St. &c. Ry. Co., vol. 4, p. 470; Creamer v. West End St. Ry. Co., vol. 4, p. 476.

APPEAL by defendant below from judgment of Superior Court, Los Angeles county. Facts stated in opinion.

John D. Pope, for appellant.

W. J. Hunsaker, for respondents.