Kf^/tj ^^9c (flnrtipll Ham ^riynnl SJibratii ircn->cnJ^2''5SlL'^"'™"'«Y Library KFM2596.3.S7C59 1904 ^™^&iiffliiN?™i?} railway ace dent law. 3 1924 024 687 919 ,. Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024687919 A TREATISE ON STREET RAILWAY ACCIDENT LAW BY ELLERY H. CLARK OF THE BOSTON BAR SECOND EDITION ST. PAUL, MINN. KEEFE-DAVIDSON COMPANY 1904 l^'793l? OOPTIUQHT, 1902 BT ELLEBT H. Olabk. ooptbiqht, 1904 bt Eldest H. Clabk Webb Publbbihs Co. Fuss, St. Paui. TO V. M. M. THIS BOOK IS DEDICATED BY THE AUTHOR. PREFACE. The recent development of our American street railway system has been little short of marvelous. Today our coun- try is covered with hundreds and thousands of miles of track, designed for the use of horse, electric, and cable cars, dummy lines, and elevated trains. Great as have been the advantages attending the extension of the system, corresponding defects have not been lacking, and the appalling number of street railway accidents, instead of growing less year by year, as the public becomes more and more familiar with the dangers attending the operation of street cars, seems, on the contrary, to be steadily increasing. It is perhaps hardly necessary to add that these accidents are a most prolific source of litigation. Believing that the tendency of the present day is towards specialization and concentration, the author, in 1902, pub- lished a book on the Street Railway Accident Law of Massa- chusetts. The kind reception accorded this work by the bench and bar has led to the production of the present volume, deal- ing with the street railway accident law of the entire country. The author has endeavored to make thoroughness and sys- tem his watchwords. Every volume of the United States and state reports has been carefully searched, and tlie cases thus collected have been examined and classified with the most painstaking thoroughness. Of course, many cases in which a street railway company has figured merely by chance, as, for instance, cases involving points of pleading and practice, have been omitted as being outside the scope of the subject, but it is believed that practically every case of importance finds a place in this volume. The author sincerely trusts that his endeavor to cover an important subject with thoroughness and system will prove of some value to the legal profession. B. H. C. Boston, May, 1904. TABLE OF CONTENTS. PART 1. ACCIDENTS TO PASSENGERS. CHAPTEE I. WHO IS A PASSENGER. I. BOAKDING THE Cak. § 1. Nature of the Relation. 2. Stations or Customary Stopping Places. 3. Boarding Car on Signal. 4. Boarding Car Without Signal. 5. Boarding Car in Violation of Rule. 6. Transfer. II. Alighting feom Cae. § 7. In General. 8. Alighting Where There are Double Tracks. III. On Cab — Passenger, Trespasser, ob Licensee. § 9. Payment of Fare. 10. Same — Children. 11. Same — Newsboys. 12. Position on Car. 13. Conduct. IV. Passenger or Employe. § 14. Employe Off Duty. 15. Passenger Assisting Employe. 16. Passenger Allowed to Ride Free. CHAPTER II. ACCIDENTS WHILE BOARDING THE CAR. Due Care of Passenger. § 17. Due Care in Boarding Moving Car in General a Ques- tion of Fact. X TABLE OF CONTEXTS. 18. Special Circumstances — Speed ot Car. 19. Same — Age and Physical Condition. 20. Same — Incumbered with Bundles. 21. Same — Condition of Car. 22. Same — Condition of Track. 23. Same — Boarding Without Signal. 24. Same — Boarding Against Rule or Warning. 25. Same — Manner of Boarding Car. 26. Boarding Car not in Motion. II. Negugenoe of Company. § 27. Reasonable Opportunity to Board. 28. Children. 29. Miscellaneous. CHAPTER III. ACCIDENTS WHILE ON CAR. I. Unusual Conduct of Passenger. § 30. Riding on Front Platform — Due Care in General a Ques- tion of Fact. 31. Same — Consent of Those in Charge of the Car. 32. Same — Position on Platform. 33. Same — Intoxication. 34. Same — Children. 35. Riding on Rear Platform. 36. Riding on Step of Car. 37. Riding on Running Board. 38. Standing in Car. 39. Riding on Bumper. 40. Preparatory to Alighting. 41. Changing Position on Car. 42. Catching Dress. 43. Falling from Car. 44. Tripping in Car. 45. Putting Arm Outside Car. 46. Transferring. II. Unusual Conduct of Company. § 47. Carp Required of Company. TABLE OF CONTENTS. 48. Running Cars on Sunday. 49. Crowding Cars. 50. Condition of Car. 51. Injury by Fellow Passenger. 52. Derailment. 53. Collision Between Two Street Cars. 54. Collision Between Street Car and Wagon. 55. ■ Collision Between Street Car and Steam Railroad. 56. Jerk. 57. Speed of Car. 58. Miscellaneous Negligence in Operation, CHAPTER IV. ACCIDENTS WHILE ALIGHTING FROM CAR. Due Cake and Negligence. § 59. Due Care in Alighting from Moving Car in General a Question of Fact. 60. Reasonable Opportunity to Alight. 61. Speed of Car. 62. Manner of Alighting. 63. Age and Physical Condition of Passenger. 64. Sex of Passenger. 65. Incumbered with Bundles. 66. Place of Alighting. 67 Preparatory to Alighting. 68. Notice of Desire to Alight. 69. Alighting in Spite of Warning. 70. Condition of Car. 71. Injury by Fellow Passenger. 72. Miscellaneous. CHAPTER V. EJECTION. I. What Renders Passbngeb Liable to Ejection. § 73. Nonpayment of Fare. 74. Same — What is a Reasonable Tender. jcii TABLE OF CONTENTS. 75. Conduct. 76. Color. II. Mannee, Place, and Time of Ejection. § 77. What Constitutes Ejection. 78. How Performed. III. Master and Servant. § 79. Responsibility for Acts of Servant. 80. Exemplary Damages. IV. Tickets and Tbansfees. § 81. Place of Transfer. 82. Time of Transfer. 83. Transfer Bad on Face. 84. Transfer Without Check. 85. Miscellaneous. PART II. ACCIDENTS TO TRAVELERS ON THE HGHWAY. CHAPTER VI. PEDESTRIANS RUN OVER. I. Adults. § 86. Due Care — General Considerations. 87. Same — Intoxicated and Infirm Persons. 88. Same — Crossing Tracks — Stopping, Looking and Listen- ing. 89. Same — Walking on or near Track. 90. Same — Crossing Where There are Double Tracks. 91. Same — Laborer Working on or near Track. 82. Same — Miscellaneous. 93. Right of Way. 94. Negligence of Company — General Considerations. 95. Negligence in Operation — Lookout, Speed, Warning, etc. 96. Same — Laborer Working on or near Track. 97. Same — Miscellaneous. II. Children. § 98. Capacity of Child. TABLE OP CONTENTS. xiii 99. Due Care of Child, for Jury. 100. Lack of Due Care of Child. 101. Due Care of Parent or Person in Charge of Child — Al- lowing Child in Street. 102. Same — ^^Leaving Child Alone in or near the House. 103. Negligence of Company— Right of Way. 104. Same — General Considerations. 105. Same — Negligence in Operation. CHAPTER VII. ACCIDENTS TO DRIVERS OF WAGONS. I. CotLisiONs Between Cab and Wagon. § 106. Due Care — Crossing Tracks — Stopping, Looking, and Listening. 107. Same — Driving on or near Tracks. 108. Same — Imputed Negligence. 109. Same — Age and Occupation. 110. Right of Way. 111. Negligence of Company — General Considerations. 112. Negligence in Operation — Lookout, Speed, Warning, etc. II. Peiohtening Hoeses. § 113. Due Care of Driver of Horse. 114. Negligence of Company. CHAPTER VIII. BICYCLE RIDERS; HORSEBACK RIDERS; ANIMALS RUN OVER. I. Bicycle Riders. § 115. Due Care. 116. Negligence. II. Horseback Riders. § 117. In General. III. Animals Run Oveb. § 118. In General. Xiv TABLE OP CONTENTS. CHAPTER IX. ACCIDENTS PROM DBPECTS IN CONSTRUCTION AND OPERATION. I. Electric Shock. § 119. Care of Company. 120. Presumption of Negligence. 121. Negligence in Operation. II. ObstrtjCtions — Defects in Track — Defects in Operattow. § 122. Liability of Company — City, Contractor, Lessee, etc. 123. Excavations between or near Tracks. 124. Obstruction near Track. 125. Defects in Tracks. 126. "Wire. 127. Obstructing Tracks by Snow, Dirt, etc. 128. Miscellaneous. PART III. ACCIDENTS 1 O EMP OYES. CHAPTER X. ACCIDENTS TO EMPLOYES. I. Accidents to Conductors. § 129. Assumption of Risk and Lack of Due Care. 130. Due Care for Jury. 131. Who Are Fellow Servants. 132. Negligence of Company. II. Accidents to Motoemen, Gkipmen, and Drivers. § 133. Assumption of Risk and Lack ol: Due Care. 134. Due Care for Jury. 135. Who are Fellow Servants. 136. Negligence of Company. III. Accidents to Miscellaneous Employes. § 137. Assumption of Risk and Lack of Due Care. 138. Due Care, for Jury. 139. Who are Fellow Servants. 140. Negligence of Company. TABLE OF CONTENTS. PART IV. EVIDENCE AND DAMAGES. CHAPTER XI. THE VALUE OP EVIDENCE. 141. Credibility of Witnesses in General. 142. Credibility as Affected by Interest or Bias. 143. Credibility as Affected by Corroboration. 144. Credibility as Affected by Contradictory Statements. CHAPTER XII. ADMISSIBILITY OP EVIDENCE. I. EVIDEKCE BeARINQ UPON PLAINTIFF'S IkJUKIES. § 145. The Plaintiff Himself as Evidence. 146. Physical Examination of Plaintiff. 147. Exclamations and Statements of Plaintiff. 148. Medical Testimony. 149. Evidence of Other Witnesses. II. Evidence Bearing on the Question of the Defendant's Neg- ligence. § 150. Competency of Employes. 151. Starting and Stopping Cars. 152. Condition of Car. 153. Condition of Track. 154. Speed of Car. 155. General Negligence in Operation of Road. CHAPTER XIII. DAMAGES. 156. Excessive and Inadequate Damages. 157. Damages for Mental Suffering. 158. Special Damages. 159. Vindictive Damages. 160. Aggravation of Injuries. 161. Damages for Death. STREET RAILWAY ACCIDENT LAW. PART I. ACCIDENTS TO PASSENGERS. CHAPTER 1. WHO IS A PASSENGER. I. BOAEDING THE CAE. § 1. Nature of the Relation. 2. Stations or Customary Stopping Places. 3. Boarding Car on Signal. 4. Boarding Car Without Signal. 5. Boarding Car in Violation of Rule. 6. Transfer. II. Alighting from Cab. § 7. In General. 8. Alighting Where There are Douhle Tracks. III. On Car — Passenger, Trespasser, oe Licensee. § 9. Payment of Fare. 10. Same — Children. 11. Same — Newsboys. 12. Position on Car. 13. Conduct. IV. Passenger or Employe. § 14. Employe Off Duty. 15. Passenger Assisting Employe. 16. Passenger Allowed to Ride Free. I. Boarding the Cab. The relation of passenger and carrier is created by contract, express or implied, and begins when the passenger puts him- Ry. Ace— 1. § 1 STREET RAILWAY ACCIDENT LAW. [Ch. 1 self in the care of the carrier with the intention of becom- ing a passenger, and is accepted as such by the carrier. The relation may be established at a station or customary stopping place, but in the great majority of cases is estab- lished in the street itself. Boarding a car without a signal is not enough to create the relation, nor is a mere unrecognized signal, or even a signal and answer, sufficient. But stopping a car when signaled is an invitation to all persons desiring to take passage to board the car, and, if a person is in the act of getting aboard, the relation is established. Slackening speed when signaled, without actually stopping, is also an invitation to board, and a person attempting to board in the exercise of due care is a passenger. A person may be a passenger, although he violates a rule of the company in boarding the car. A person transferring is a passenger while in the act of boarding, or even while on the way to board, the second car. § 1. Nature of the relation. It is a well-settled principle of law that the relation o:' passenger and carrier is a contractual one. The contract need not be express, but may be, and in the case of street railways usually is, implied from all the surrounding cir- cumstances.-^ These must warrant the implication that the passenger has offered himself to be carried, and has been accepted as such by the carrier. The relation begins when the passenger puts himself in the care of the carrier, or 1 North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545; North Chi- cago St. R. Co. V. Williams, 140 111. 275; Baltimore Traction Co. v. State, 78 Md. 409; Schepers v. Union Depot R. Co., 126 Mo. 665; Schaefer v. St. Louis & S. Ry. Co., 128 Mo. 64. (2) Ch. IJ WHO IS A PASSENGER. § 3 within his control, with the intention of becoming a pas- senger, and is accepted as such by the carrier.^ § 2. Stations or customary stopping places. Where a horse railroad company provided a waiting room for passengers close to a double track where incoming cars were shifted to the outgoing track by means of a movable section of the platform, and the plaintiff, who was waiting to take the cars, stepped from the waiting room, saw a car coming towards her sideways, and caught her foot in the movable section, it was held that she was a passenger.' The court said : "The counsel for the defendant insists that the relation of carrier and passenger did not exist between the parties at the time of the accident. This point, I think, cannot be maintained. Neither the entry into the cars nor the payment of the fare is essential to create that relation. Being within the waiting room, waiting to take the cars, was as effectual to make her a passenger as if she had been within the body of one of them. The waiting room is made for the purpose of receiving and accommodating the passen- gers until the car arrives." In North Birmingham By. Co. v. Liddicoat* it was held that, if a person has the bona fide intention of taking passage by a train, and goes to a station at a reasonable time, he is entitled to protection as a passenger from the moment he enters the carrier's premises ; and, further, that, if a common 2 North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545; Donovan V. Hartford St. Ry. Co., 65 Conn. 201; Schepers v. Union Depot R. Co., 126 Mo. 665; Schaefer v. St. Louis & S. Ry. Co., 128 Mo. 64. s Gordon v. Grand St. & N. R. Co., 40 Barb. (N. Y.) 546. * 99 Ala. 545. (3) § 3 STREET RAILWAY ACCIDENT LAW. [Ch. 1 carrier is in the habit of receiving and discharging passen- gers at a place other tlian a regular station on its road, a person who knows of such custom and attempts to board a train at such place is as much justified in assuming that the carrier's cars are in a safe condition as he would be if he were attempting to board them at a regular station. In the case of an elevated railway, where a car stopped, and a gate leading onto the platform was opened, the court said: "By permitting him to thus enter upon this space or platform, the plaintiff's husband at once became and was accepted as a passenger on said car, and defendant was bound to exercise the highest degree of care of a prudent person in similar circumstances for his safety, and be held to a strict responsibility therefor."^ In Lake St. El. E. Co. v. Burgess,® a person on an elevated station platform was like- wise held to be a passenger. § 3. Boarding car on signal. The question of the relation of carrier and passenger usu- ally arises, however, not at a station or fixed stopping place, but where the would-be passenger attempts to board the car in the street itself. In Schepers v. Union Depot E. Co.'' the court said : "It must be conceded that there is difficulty in many cases in determining when the relationship of carrier and passenger begins, and what acts of the parties are sufiicient to create it. The difficulty is greater in case the carrier operates a street railway, having no regular stations or station agents B Barth v. Kansas City El. Ry. Co., 142 Mo. 535. e 200 111. 628. 7 126 Mo. 665. Ch. 1] WHO IS A PASSENGER. § 3 authorized to make contracts. In respect to such carriers, passage must be taken hastily, on the streets, at points pre- scribed by the rules of the carrier, or by the police regula- tions of the municipality." The act of stopping a street car on being signaled is an invitation to the would-be passenger to board the car, and is an invitation not only to the person who has actually signaled the car to stop, but to others who desire to board the car.* Thus, in Joliet St. Ry. Co. v. Duggan,* the court said : "Where a street car has been stopped at a point usual for taking on passengers, the duty devolving upon those in charge of the ear of giving ample opportunity for safely mounting is not limited to the person or persons who may have signaled the car. It is their duty to stop a sufficient time for others desiring to take passage to do so safely." And in Schopers v. Union Depot E. Co.^" the court said: "When a street ear has stopped at a usual place for receiv- ing passengers, an acceptance of all persons who are wait- ing to take passage must be implied, as it may be impossible for each to be separately recognized." It is well settled that a person does not have to be actu- ally on a street ear before he becomes entitled to the rights of a passenger. If the car has been stopped on being sig- naled, and he is in the act of getting aboard when the car 8 North Chicago St. R. Co. v. Cook, 43 111. App. 634; Joliet St. Ry. Co. V. Duggan, 45 111. App. 450; West Chicago St. R. Co. v. James, 69 111. App. 609; Citizens' St. R. Co. v. Jolly (Ind.) 67 N. E. 935; Davey v. Greenfield & T. P. St. Ry. Co., 177 Mass. 106; Gaffney v. St. Paul City Ry. Co., 81 Minn. 459; Schepers v. Union Depot R. Co., 126 Mo. 665. » 45 111. App. 450. 10 126 Mo. 665. (5) § 3 STREET RAILWAY ACCIDENT LAW. [Ch. 1 starts, the relation of carrier and passenger is held to be established." It is not necessary, moreover, to get further than to have one foot on the step of the platform or run- ning board. ^^ It is not necessary that the car be actually stopped be- fore the passenger attempts to board. The slackening of the speed of the car in response to a signal is an invitation from the driver to board the car;^^ and since boarding a moving street car is not necessarily lack of due care, as a matter of law,^* it is held that, if a car slows up on being signaled, and a person in the exercise of due care is attempting to board when the car starts on again, he is a passenger.^^ "Tucker v. Atlanta St. R. Co., 77 Ga. 61; North Chicago St. R. Co. V. Cook, 43 111. App. 634; West Chicago St. R. Co. v. James, 69 111. App. 609; Citizens' St. R. Co. v. Jolly (Ind.) 67 N. E. 935; Gordon v. West End St. Ry. Co., 175 Mass. 181; Davey v. Green- field & T. F. St. Ry. Co., 177 Mass. 106; Smith v. St. Paul City Ry. Co., 32 Minn. 1; Miller v. St. Paul City Ry. Co., 66 Minn. 192; Gaffney v. St. Paul City Ry. Co., 81 Minn. 459; Schepers v. Union Depot R. Co., 126 Mo. 665; Earth v. Kansas City El. Ry. Co., 142 Mo. 535; Ganiard v. Rochester City & B. R. Co., 50 Hun, 22, af- firmed 121 N. Y. 661; Reynolds v. Richmond & M. Ry. Co., 92 Va. 400. "West Chicago St. R. Co. v. James, 69 111. App. 609; Gordon v. West End St. Ry. Co., 175 Mass. 181; Gaftney v. St. Paul City Ry. Co., 81 Minn. 459; Ganiard v. Rochester City & B. R. Co., 50 Hun, 22, affirmed 121 N. Y. 661. isFinkeldey v. Omnihus Cable Co., 114 Cal. 28; Cicero & P. St. Ry. Co. V. Meixner, 160 111. 320; Conner v. Citizens' St. Ry. Co., 105 Ind. 62; Citizens' St. R. Co. v. Spahr, 7 Ind. App. 23; Citizens' St. Ry. Co. v; Merl, 26 Ind. App. 284; Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; O'Mara v. St. Louis Transit Co. (Mo. App.) 76 s! W. 680; Savage v. Third Ave. R. Co., 29 App. Div. (N. Y.) 556; Reynolds v. Richmond & M. Ry. Co., 92 Va. 400. 1* Infra, chapter 2, § 17. 15 Citizens' St. Ry. Co. v. Merl, 26 Ind. App. 284; McDonough v. Metropolitan R. Co., 137 Mass. 210; Reynolds v. Richmond & M Ry' Co., 92 Va. 400. (6) Cb, 1] WHO IS A PASSENGER. § 3 In McDonough v. Metropolitan E. Co.'^ there was evi- dence that the driver of a slowly moving horse car saw the signal of a boy of thirteen, and that, just as the hoy was getting on the car, with one foot on the step of the front platform, and holding onto the railing with both hands, the car started with a sudden jerk, and the plaintiff was injured. The court said: "Upon the undisputed evidence, the plain- tiff was traveling upon the defendant's car. The length of time he had been upon the car, and his position upon it, and the fact that he was changing his position, and had not as- sumed his seat or taken his stand upon the platform, are immaterial. He was on the car, and being carried by it on his journey. The instruction that, if he was there in the exercise of due care, he had the rights of a passenger, was correct, and, whether required by the facts or not, was sufficiently favorable to the defendant." It is necessary, however, for the plaintiff to be in the ex- ercise of due care. In Baltimore Traction Co. v. State,-^^ in holding that one who attempts to board a street car moving six miles an hour cannot be regarded as a passenger, the court said : "There was no evidence that the gripman saw his sig- nal, and, if he did, the deceased could not infer his tender to become a passenger had been accepted by the slowing of the car, provided it was still moving so rapidly as to make it obvi- ously unsafe to attempt to board it. The relation of carrier and passenger may indeed be implied from slight circumstan- ces, but one who attempts to take passage on a street car can- not be regarded as a passenger while he is in the act of en- tering it, unless he does so with a proper degree of care and le 137 Mass. 210. 17 78 Md. 409. (7) § 3 STREET RAILWAY ACCIDENT LAW. [Ch. 1 prudence. The street was in no sense a passenger station, for the safety of which the company is responsible. So, until he had entered the car, or was in the act of prudently en- tering, he had not placed himself in the charge of the de- fendant; and if the attempt to enter was so obviously reck- less and careless as to amount in itself to contributory negli- gence, it would be unreasonable to hold that such imprudent conduct entitled him to be regarded as a passenger while hanging onto the outside of the car." Some very recent cases hold that slackening the speed of an electric car in response to a signal does not constitute an invitation to board, at least until the car has come to a standstill.^* A mere unrecognized signal is not sufficient to establish the relation of carrier and passenger. In Keidy v. Metropolitan St. Ey. Co.,^® the plaintiff, standing at a crossing, put up his hand as a signal to the ear to stop. The car began to slow down, but did not stop, and, while he was attempting to board, the car suddenly started, and he was thrown to the ground and injured. There was no testimony to show that the car slowed down in re- sponse to the signal of the plaintifF, nor did it appear that either the gripman or the conductor knew that the plain- tiff desired or was attempting to board the car. It was held that the plaintiff had no ground for assuming that the change in speed of the car was made for his benefit or con- venience. 18 Monroe v. Metropolitan St. Ry. Co., 80 N. Y. Supp. 177;^ Powel- son V. United Traction Co., 204 Pa. 474; Huntersoil v. Union Trac- tion Co. (Pa.) 55 Atl. 543. But see Mulligan v. Metropolitan St. Ry. Co., 85' N. Y. Supp. 791. 19 27 Misc. Rep. (N. Y.) 527. (8) Ch. 1] WHO IS A PASSENGER. § 3 So, in West Chicago St. R. Co. v. Binder,2o a boy of twelve put up his hand as a signal for a cable car to stop. The gripman did not see the boy. The car slackened speed, but did not stop, and then resumed its course. The boy ran towards the car, and had caught hold of the rear platform, when there was a sudden increase in the speed of the car, and the boy was run over by the trailer car and killed. It was held that the boy was not a passenger. In Schepers v. Union Depot R. Co.,^^ a man ran towards a car with his hand raised, but there was no evidence that his signal was seen by those in charge of the car. The court said : "He could not in this manner, by his own act alone, constitute himself a passenger, and thus secure the high de- gree of care due from a carrier to a passenger. Under the evidence, we think the relation of carrier and passenger was never created." Even a signal and answer will not of itself be sufficient to establish the relation of passenger and carrier. In Donovan v. Hartford St. Ry. Co.,^^ the plaintiff, in- tending to take an approaching street car, stepped out upon a cross walk and gave the usual signal, which the driver of the car saw and answered affirmatively. Just before the car reached the cross walk it was unexpectedly deflected to a side track, on which the plaintiff was standing, and struck and injured her. The court said: "A common caiTier is botmd to exercise a high degree of care towards those who have put themselves under his care as passengers, but not until they have thus put themselves under his care. Up to 20 51 111. App. 420. 21 126 Mo. 665. 22 65 Conn. 201. (9) § 4 STREET RAILWAY ACCIDENT LAW. [Ch. 1 Ihat time, although they may have contracted with him for their future transportation, he owes no more care to them than to any third party. His special duty begins when, by coming upon his premises, or in the act of entering his vehicle, the actual relation of passenger to carrier is as- sumed." Similarly, where the plaintiff stood on a cross walk await- ing an opportunity to board a stationary horse car, and, just before she did so, another car came by at high speed, caus- ing a nervous shock, it was held that, as the plaintiff had not put her foot on the car, she had not become a passenger.^* In Carney v. Cincinnati St. Ey. Co.^* it was somewhat loosely held that, if a car has stopped on a passenger's sig- nal, he has virtually become a passenger. § 4. Boarding car without signal. Of course, a mere attempt to board a car in motion, with- out a signal of any kind, is not enough to constitute the person thus attempting to board a passenger, since no steps have been taken to establish the relation of carrier and pas- senger between the parties.^* In Schaefer v. St. Louis & S. Ey. Co.,^® the court said: "The plaintiff would have the court declare that, if he got on the step of the car for the purpose of getting upon the plat- form as a passenger, with the intention of paying his fare 2s Mitchell V. Rochester Ry. Co., 4 Misc. Rep. (N. Y.) 575. 24 8 Ohio S. & C. P. Dec. 587. 25Basch V. North Chicago St. Ry. Co., 40 111. App. 583; Schepers V. Union Depot R. Co., 126 Mo. 665 ; Schaefer v. St. Louis & S. Ry. Co., 128 Mo. 64; Pitcher v. People's St. Ry. Co., 154 Pa. 560; Brooks V. Mt. Auburn Cable Co., 29 Wkly. Law Bui. (Ohio) 50. 26 128 Mo. 64. (10) Ch. I] WHO IS A PASSENGER. § 5 when called upon, those acts made him a passenger, with- out regard to the fact as to how, when, and where he got upon the step of defendant's car. This instruction wholly ignores the fact as to whether or not defendant ever agreed to accept plaintiil as a passenger, or did any act indicating an intention to accept him as such. Without a contract for carriage on one part shown, and an acceptance on part of the other, either expressed or implied, the relation of pas- senger and carrier can never exist." § 5. Boarding car in violation of rule. In ISTorth Chicago St. K. Co. v. Williams^^ there was evi- dence that the company had posted in the car a notice that passengers would not be allowed to get on or off the car while in motion. The conductor, standing on the back plat- form, did not warn the plaintiff not to get upon the car while it was in motion, but suffered him to step upon the platform without objection. The court held that it was a fair question for the jury whether, under all the circum- stances, the plaintiff was invited to get on the car, and that, if he was so invited, he was a passenger, and said further: "But we are not prepared to hold that a party is a trespasser after he gets on a horse car, even though no fare has been collected of him before he meets with an injury, simply be- cause he has violated a rule of the company as to the mode of his getting on." In Smith v. Manhattan Ry. Co.,^* the plaintiff, who had paid his fare, boarded an elevated railway train by the rear platform, in violation of a rule of the company. In an ac- 27 140 111. 275. 28 18 N. Y. Supp. 759. Til) § 6 STREET RAILWAY ACCIDENT LAW. [Ch. 1 tion for damages for an attempted ejection, the court held that his presence on the train was rightful, no matter what the irregularity in getting there. § 6. Transfer. In Washington & G. E. Co. v. Patterson,^® the plaintiff, who had obtained a transfer ticket from another car, which entitled her to ride on defendant's car, approached a car[ standing to receive passengers, and had placed her foot on the running board, and had taken hold of a stanchion for the purpose of raising herself to a seat, when the car sud- denly started, and she was thrown to the ground and in- jured. It was held that she was entitled to the protec- tion of a passenger in the car. In North Chicago St. E. Co. v. Kaspers,^" the appellee received a transfer ticket for a cable train, which started when he was about twenty feet away. Appellee ran after the train, and got upon the front platform of the third car from the rear, when there was a sudden jerk, and he was thrown off. It was held that he was a passenger, and en- titled to the rights and protection due to a passenger. In Keator v. Scranton Traction Company^^ it was held that, where a person is given a transfer ticket from one elec- tric car to another, which is a block distant, to enable him to reach the destination for which he has paid, and, while in the cartway approaching the second car, which is the proper car for him to take under the terms of the transfer, 28 9 App. D. C. 423. 30 85 111. App. 316, affirmed 186 111. 246. And see Chicago City Ry. Co. v. Carroll (111.) 68 N. E. 1086. 31 191 Pa. 102. (12) Ch. 1] WHO IS A PASSENGER. § 7 he is struck, within five feet of the car, by a piece of the trolley pole, which broke while the conductor was turning it from one end of the car to the other, such person is a passenger, and is entitled to recover damages for the injuries sustained, if the railway company is unable to show the ex- traordinary care which it owes to a passenger. Where a passenger was told to transfer from one car to another, and was obliged to cross a plank walk across a ravine, from which he fell, it was held that he was entitled to the high degree of care due a passenger.^ ^ II. ALIGHTIJiTG FEOM CaE. The relation of carrier and passenger continues while the passenger is alighting, but, after the passenger has stepped from the car into the street, his rights are merely those of a traveler upon the highway, and not of a passenger. This is on the theory that the company has no control of the streets, and that its care should be coextensive with its con- trol; and the same rule applies where the company operates double tracks, except where it has control of its premises, and can manage them as it chooses. If a passenger alights for a mere temporary purpose, those in charge of the car must understand this if the relation of passenger and carrier is to continue. § 7. In general. Passengers upon street cars are entitled to sufScient time to get off, and the duty of the carrier is not discharged until the passenger is free from the car. The relation of passenger and carrier certainly exists while the passenger is in the act of alighting.^^ After the passenger has stepped from the car 82 Jamison v. San Jrfse & S. C. R. Co., 55 Cal. 593. 33 Atlanta Consolidated St. Ry. Co. v. Bates, 103 Ga. 333; Ft. (13) I 7 STREET RAILWAY ACCIDENT LAW. [Ch. 1 into the street, however, it is held that he is no longer upon the premises of the railway company, but upon a public place, where he has the same rights with every occupier, and over which place the company has no control. His rights are those of a traveler upon the highway, and not of a passen- ger, for the relation of carrier and passenger has ceased.^* If a passenger alights for a mere temporary purpose, this must be understood by those in charge of the car, if the relation of carrier and passenger is to be held to continue. Thus, in Central Ey. Co. v. Peaeock,^^ the court said: ^'Whenever the passenger did alight, that contract was at an €nd, unless his alighting was well understood by the car- rier's agent to be rightful and temporary, and that he was to resume his seat. He says he alighted for a purpose, and intended to resume his place in the car, and continue his journey, but this purpose was not communicated to or as- sented to by the driver and conductor. After he had alight- ed and walked a square, could he resume his place in the ■car without paying another fare, without the assent of the Wayne Traction Co. v. Morvilius (Ind. App.) 68 N. E. 304; Louis- ville Ry. Co. v. Park, 96 Ky. 580; Jacobs v. West End St. Ry. Co., 178 Mass. 116; Finn v. Valley City St. & Cable Ry. Co., 86 Mich. 74; Pillingham v. St. Louis Transit Co. (Mo. App.) 77 S. W. 314. 34 Hanson v. Urbana & C. Elec. St. Ry. Co., 75 111. App. 474; West ■Chicago St. R. Co. v. Walsh, 78 111. App. 595; Indianapolis St. Ry. Co. V. Tenner (Ind. App.) 67 N. E. 1044; Conway v. Lewiston & A. H. R. Co., 87 Me. 283, 90 Me. 199; Central Ry. Co. v. Peacock, 69 Md. 257; Creamer v. West End St. Ry. Co., 156 Mass. 320; Bigelow V. West End St. Ry. Co., 161 Mass. 393; Gargan v. West End St. Ry. Co., 176 Mass. 106; Piatt v. Forty-second St. & G. St. Ferry R. Co., 2 Hun (N. Y.) 124; Wells v. Steinway Ry. Co., 18 App. Div. (N. Y.) 180; Smith v. City Ry. Co., 29 Or. 539; Finseth v. Suburban Ry. Co., S2 Or. 1; Buzby v. Philadelphia Traction Co., 126 Pa. 559; Street R. Co. V. Boddy, 105 Tenn. 666. 35 69 Md. 257. <14) Ch. IJ WHO IS A PASSENGER. § g conductor? Would the conductor be justified in omitting to demand another fare? We think not. * * * The carrier had a right to regard his contemplated trip as ended, and contract executed. He was no longer heing carried as a passenger, but was walking on the street." A passenger who steps from the platform of an elevated train to the sta- tion platform to allow another passenger to alight does not cease to become a passenger.^* § 8. Alig'hting where there are double tracks. Where the company operates a double line of parallel tracks, there is some apparent conflict in the authorities as to whether the relation of carrier and passenger exists after the passenger has alighted from the car, and before he has had an opportunity of passing over and beyond the parallel track of the company's line.^^ The true rule would seem to be that the care of the carrier is coextensive with its con- trol. Thus, in Creamer v. West End St. Ky. Co.,^* the court said: "We are of opinion that he was not a passenger when the accident occurred, and that he ceased to be a pas- senger when he alighted upon the street from his car. The street is in no sense a passenger station, for the safety of which a street railway company is responsible. When a passenger steps from the car upon the street, he becomes a traveler upon the highway, and terminates his relations and rights as a passenger, and the railway company is not re- sponsible to him, as a carrier, for the condition of the 36 Graham v. Manhattan Ry. Co., 149 N. Y. 336. ST Atlanta Consol. St. Ry. Co. v. Bates, 103 Ga. 333. s8 156 Mass. 320. (15) § 8 STREET RAILWAY ACCIDENT LAW. [Ch. 1 street, or for his safe passage from the car to the sidewalk. When a eommon carrier has the exclusive occupation of its tracks and stations, and can arrange and manage them as it sees fit, it may be properly held that persons intending to take passage upon or to leave a train have the relation and rights of passengers in leaving or approaching the cars at a station. But one who steps from a street railway car to the street is not upon the premises of the railway company, but upon a public place, where he has the same rights with every other occupier, and over which the company has no control. His righte are those of a traveler upon the high- way, and not of a passenger." In Street E. Co. v. Boddy^" the court said: "On this question there is a conflict of authority, but we think the more reasonable view is that, where a man who has traveled on a street car steps from the car upon the street, this ter- minates his relation and rights as passenger, and the rail- way company is not responsible to him, as carrier, for the condition of the street, or for his safe passage from the car to the sidewalk. Where a common carrier has the exclusive control or occupation of its tracks and stations, and can ar- range and manage them as it sees fit, it may be properly held that a person intending to take passage upon or leave a train sustains the relation of a passenger in leaving or ap- proaching the car at a station, but 'one who steps from a street railway car to the street is not upon the premises of the railway company, but upon a public place, where he has the same rights with every other occupier, and over which the company has no control. His rights are those of a traveler upon the highway, and not of a passenger.' 89 105 Tenn. 666. (16) Ch. 1] WHO tS A PASSENGER. § 8 Creamer v. West End St. Ey. Co.*" If the limitation in- dicated in the foregoing paragraph was not adopted, it would be difficult to suggest one resting upon a satisfactory basis. Take the case at bar. If the passenger relation did not determine when the defendant safely alighted from the car, when would it end ? Would it continue only while he was crossing the parallel track, or until he had reached a point of comparative safety on the far side of the street? Or if, after reaching the ground, he had directed his steps to the other side of the street, would it have continued until he had reached the pavement? We think that the Massachusetts supreme court was wise in adopting the rule that this rela- tion terminated the moment the passenger descended to the street. This is a fixed point, free from all speculation or uncertainty." In Buzby v. Philadelphia Traction Co,** the court said: "The plaintiff had been carried to his destination, had alight- ed from the car in a place of safety, and his relation to the defendant as a passenger had ceased. The ease, therefore, is the ordinary one of a traveler about to cross a public street, on which are two sets of railroad tracks, besides the usual space for wagons, etc., between the sidewalks." The converse of this rule is shown in Burbridge v. Kansas City Cable R. Co.*^ Here the plaintiff was held to be a passenger after he had alighted from a car of the defendant, and was crossing a double track. The court said: "The uncontradicted evidence was that, at the time the plaintiff was injured, it was a rule then in force, for the management to 156 Mass. 320. 41 126 Pa. 559. 42 36 Mo. App. 669. (17) Ry. Ace— 2. § 8 STREET RAILWAY ACCIDENT LAW. [Ch. 1 and operation of defendant's trains, that its north track at the junction should be kept free of trains until the east- bound trains should not only leave the junction, but clear Main street, when only its west-bound trains, which should be held near Walnut street, a block east, should be permit- ted to approach the junction, so that the two trains would thus pass each other on the grade east of Main street. This was an assurance upon which the public had a right to rely. It was a well-devised and well-understood custom, the ob- servance of which was alike beneficial to the defendant and the public. This was an approach to the defendant's trains at the junction, which the defendant gave assurance to the public that should be kept unobstructed and safe while its trains on the south track remained at the junction. The observance of the precaution was not inconsistent with the privilege granted the defendant by the City of Kansas, and under which it operated its railway. We think the facts of this case bring it within the rule declared by the supreme court of Iowa in McDonald v. Chicago & IST. W. E. Co.** and approved by the St. Louis court of appeals in Chance V. St. Louis, I. M. & S. Ky. Co.,** to the effect that it is the duty of railway companies to keep in safe condition all portions of their platform and approaches thereto to which the public do or would naturally resort, and all portions of their station grounds reasonably near their platform, etc. We can perceive no reason why this statutory rule may not, to a certain extent, apply to street railways." Similarly, where the plaintiff was injured at a transfer station, the court said: "The passenger is entitled to this protective *3 26 Iowa, 145. ** 10 Mo. App. 351. (18) Ch. 1] WHO IS A PASSENGER. § g care of the railroad company until he or she is entirely free from danger from the movement of the cars on the tracks either way."*^ Although some of the language in the cases of Evansville St. K. Co. V. Gentry" and Cincinnati St. Ey. Co. v. Snell*^ might seem to indicate that the court regarded the relation of passenger as still existing after a person had alighted from a street car, where there were double tracks, the point was not squarely presented for decision, and the care of the com- pany was held to be only that of "reasonably protecting" such jjerson from injury, — the same degree of care which it owed to persons who were merely travelers on the highway; and the only case in direct conflict with the rule above expressed is South Covington & C. St. Ey. Co. v. Beatty.** In this case the court held that there was no error in refusing to give the instruction that the appellee ceased to be a pas- senger when he alighted from the car, although the court seems to have misconceived the scope of the decision relied upon in their opinion. A street car company is not under obligation to provide for its patrons cross ways from its stopping places in the street to the sidewalk; but if, for any reason, it does erect such passage ways, it must, at its peril, construct and main- tain them in a reasonably safe condition.** III. On Cae — Passengee, Teespassee, oe Licensee. Actual payment of fare is not necessary to constitute the relation of passenger and carrier. A person allowed to ride 45 Capital Traction Co. v. Lusby, 12 App. D. C. 295. 46 147 Ind. 408. 47 54 Ohio St. 197. 48 20 Ky. Law Rep. 1845. 49 Pinseth v. Suburban Ry. Co., 32 Or. 1. (19) 8 9 STREET RAILWAY ACCIDENT LAW. [Ch. 1 free under a rule of the company is a passenger; but one riding on a free pass limiting the liability of the carrier for negligence cannot recover damages for such negligence. Where a child is invited to ride free by the employes in charge of a car, and accepts the invitation in good faith, according to the weight of authority, he is a passenger, and not a trespasser; but a child who is sui juris has been held not to be a passenger. A child attempting to steal a ride is a mere trespasser, but a child getting on a car without any intention of stealing a ride is not. A newsboy who is permitted to jump on and off the cars to sell his papers is neither a passenger nor a trespasser, but a licensee. There is a conflict as to whether the company owes a newsboy the duty of using ordinary care, or is only liable for willful or wanton injury. A person who assumes an unusual position on a part of a car not intended for passengers is not a passenger. A passenger may forfeit his rights as such by refusing to pay fare, or by conduct or language which disturbs, or may reasonably be anticipated to disturb, his fellow passengers, or by refusing to obey the reasonable rules of the company; but a passenger who leaves his seat to protest against the con- ductor's treatment of a fellow passenger does not so forfeit his rights. § 9. Payment of fare. Actual payment of fare is not necessary to constitute the relation of passenger and carrier.^" An allegation that the plaintiff was on a car ready to pay fare is sufficient to show that he was a passenger, and, as such, lawfully upon the car;^^ and, similarly, when a person gets upon a car as a 50 North Chicago St. R. Co. v. Williams, 140 111. 275; West Chi- cago St. R. Co. V. Manning, 70 111. App. 239, affirmed 170 III. 417; Gordon v. Grand St. & N. R. Co., 40 Barb. (N. Y.) 546. 51 Barger v. North Chicago St. R. Co., 54 111. App. 284. (20) Ch. 1] WHO IS A PASSENGEH. passenger, expecting and willing to pay fare, lie becomes a passenger for hire, altliough the conductor fails to collect fare from him.°^ In North Chicago St. E. Co. v. Williams,*^ the court said : "It is not necessary that there be an express contract in order to constitute the relation of carrier and passenger, nor that there should be a consummated contract. The con- tract may be implied from slight circumstances, and it need not be actually consummated by the payment of fare. * * * The whole matter seems to depend largely upon the intention of the person at the time he enters the car." This last point is well brought out in the case of Myers V. Brooklyn Heights E. Co.** Here a person made re- peated trips on a street railway line to its junction with an- other line, leased by the same corporation, with no desire to proceed beyond the junction, but for the purpose of seeing whether the company would give him a transfer upon the leased road. It was held that no action was maintainable under a statute for a refusal to carry "any passenger desir- ing to make one continuous trip between such points for one fare." Y.'here a passenger on a street ear has been carried beyond his destination through the fault of the conductor, and is permitted by the conductor to remain upon the car without paying a second fare imtil the car has again reached his destination upon its return trip, it seems that his relation as 62 Wynn v. City & Suburban Ry. Co., 91 Ga. 344; Cogswell v. West St. & N. E. Electric Ry. Co., 5 Wash. 46. 63 140 111. 275. 64 10 App. Dlv. (N. Y.) 335. (21) § 9 STREET RAILWAY ACCIDENT LAW. [Ch. ] a passenger continues during the return trip,^^ and if a pas- senger is carried beyond her destination because the con- ductor did not notice her signal to stop, she is still a pas- senger, and entitled to be treated as such.^** If a person expressly announces when he gets on a car that he will not pay his fare, he is nevertheless to be re- garded as a passenger if he is allowed upon the car until demand is made for his fare, and he refuses to pay.^^ Where a street railway company had a rule forbidding riding on the front platform, and the conductor took a ticket from the plaintiff, who rode there because of the crowded condition of the car, it was held that the plaintiff must be regarded as a passenger, and could not be ejected until his fare was tendered back to him.^* Tn Muldoon v. Seattle City Ey. Co.^^ it was held that a passenger riding upon a free pass, which contains condi- tions limiting the liability of the carrier on account of neg- ligence, cannot recover for injuries received through the negligence of the carrier's servant; and, in a later trial of the same case, it was held that a public officer traveling upon a free pass is estopped from showing that the pass was void under the constitution.®" In Dickinson v. West End St. Ey. Co.®^ the defendant had made a rule "permitting policemen, firemen, advertising 66 Rosenberg v. Third Ave. R. Co., 47 App. Div. (N. Y.) 323. 68 Toledo Consol. St. Ry. Co. v. Fuller, 17 Ohio Cir. Ct. R. 562. " 67 Sanford v. Eighth Ave. R. Co., 23 N. Y. 343. 68 Hanna v. Nassau Electric R. Co., 18 App. Div. (N. Y.) 137. 69 7 Wash. 528. 60 Muldoon V. Seattle City Ry. Co., 10 Wash. 311. 61 177 Mass. 365. (22) Ch. 1] WHO IS A PASSENGER. § 10 agents, news agents, and employes of the defendant company in uniform to ride free at any time, such persons being re- quired to ride upon the front platform, so far as practicable." Although apparently not necessary to the decision, in the course of the opinion the court said : "Persons riding gratui- tously under this rule are passengers, as well as those who pay their fare. All members of the classes included in the rule stand alike in reference to the duty of care which the defendant owes them, whether they come within one part of the description or another." § 10. Same— Children. The question of the relation established by riding with- out payment of fare has arisen very often when the driver, motorman, or conductor of a street car invites a child to ride free. It is almost universally held that such an invita- tion is an act within the scope of the employe's authority, and therefore binds the company, and that a child accept- ing such an invitation in good faith is not a trespasser. This ruling has been made in the case of a boy of eleven,*' a boy of ten,®^ a boy of nine,®* a boy of eight,®^ a boy of six,®* a girl of ten,®^ and a girl of nine.®* 62 Hart V. West Side R. Co., 86 Wis. 483. «3 Little Rock Traction & Electric Co. v. Nelson, 06 Ark. 494; Brennan v. Pair Haven & W. R. Co., 45 Conn. 284; Danbeck v. New Jersey Traction Co., 57 N. J. Law, 463. 6* Metropolitan St. R. Co. v. Moore, 83 Ga. 453. 65 Muehlhausen v. St. Louis R. Co., 91 Mo. 332. «6 Buck v. People's St. Ry., E. L. & P. Co., 46 Mo. App. 555, 108 Mo. 179. 67 Evansville St. Ry. Co. v. Meadows, 13 Ind. App. 155. 68 Wilton V. Middlesex R. Co., 107 Mass. 108. (23) § 10 STREET RAILWAY ACCIDENT LAW. [Ch. 1 In Danbeck v. New Jersey Traction Co.®^ the court said : "The question is not as to the duty of the defendant towards persons of mature years, but what is that duty with respect to children? It might be quite reasonable to declare, as a rule of law, that a grown person has no right to enter a car except as a passenger, and, if he does so as the friend of the conductor, that such a situation creates no relationship between such person and the car company, and that the lat- ter is under no obligation to see to his safety, while it might be unreasonable in the extreme to apply the same rule to a child under similar circumstances. Very few of the rules that regulate the conduct of a man with his fellows could be applied with the least show of reason to his intercourse with children." A child of eleven has been held, however, to be on the same footing as an adult. In Marks v. Eochester Ey. Co.,''''' where it was adjudged on a previous trial that the plaintiff, a boy of eleven, procured by the driver to aid in taking a car back to a switch, was sui juris, it was held that the boy was not a passenger. The court said: "It is not be- lieved that it is the law of this state that a railroad company may be made liable to a person who is sui juris, and whoi accepts a gratuitous ride upon the invitation of the com- pany's conductor, in violation of his duty, for injuries sus-" tained by him while occupying that relation. Whatever may be the rule as to the liability of a railroad company which, through its conductor or other employe, invites or induces helpless children to enter upon its cars for other purposes than to become passengers, who, while so situated, 09 57 N. J. Law, 463. '0 41 App. Div. (N. Y.) 66. (24) Ch. 1] WHO IS A PASSENGER. § Kj are injured through the negligence of such employes, it can have no applicability to a person who is sui juris, and fully knows and appreciates the nature of the invitation." It is not necessary that the employe in charge of the car should actually invite the child to ride. If a child asks to be allowed to ride, and the request is assented to, this is sufficient,''^ and it has even been held to be enough if the driver of a car was aware of the presence of a child, and made no effort to remove him.''^ Although the cases agree that a child riding under these circumstances is not a trespasser, there seems to be some doubt as to whether the child should be regarded as possessing all the rights of any regular passenger for hire, and consequently entitled to the very high degree of care required of the carrier when the relation of passenger and carrier is sho-\vn to be estab- lished, or as occupying the middle position of a licensee en- titled merely to the exercise of ordinary care on the part of the carrier. Some of the cases decide squarely that the child is on the same footing as any other passenger. ''^^ Thus, in Buck v. People's St. Ey., E. L. & P. Co.''^ the court said : "The plaintiff's son was received as a passenger. This fact cannot be affected by the omission of the driver to demand or collect fare. He was a full-fledged passenger, and, as such, was entitled to the same protection, and to have the " Buck V. People's St. Ry., E. L. & P. Co., 108 Mo. 179. T2 Muehlhausen v. St. Louis R. Co., 91 Mo. 332. 73 Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494; Met- ropolitan St. R. Co. V. Moore, 83 Ga. 453; Evansville St. Ry. Co. v. Meadows, 13 Ind. App. 155; Muehlhausen v. St. Louis R. Co., 91 Mo. 332; Buck v. People's St. Ry., E. L. & P. Co., 46 Mo. App. 555, 108 Mo. 179. 7i 46 Mo. App. 555. (25) § 10 STREET RAILWAY ACCIDENT LAW. [Ch. 1 car managed with as much care, as if he had paid his fare." Other cases, by holding the company to the exercise of "or- dinary care," or "reasonable care," would seem, at first sight, to place the child in a different position from other passen- gers, but it must be noted that violation of this duty was all that was necessary to a recovery in these cases, and that the question of the child's exact status beyond the fact that he was not a trespasser was not directly presented.'^ In New York a different rule prevails. In Einley v. Hud- son Electric Ry. Co.,''® a boy was invited to ride free as payment for his services in opening a switch which it was the motorman's duty to open. The company had forbidden motormen to allow any one to ride upon such terms. It was held that the defendant owed the boy no duty as a pas- senger, since the motorman's act in inviting the boy to ride was not within the scope of his duty as employe, nor in fur- therance of the company's interest, or for its benefit, and the law would not imply an assent on the part of the com- pany to such an invitation. The rule in Pennsylvania is like that in New York. A child of five, with another of eleven, got on the front plat- form of a street railway car, and the driver allowed them to continue there. '^^ In commenting on this case in Biddle v. Hestonville, M. & F. P. Ry. Co.^« the court said: "Both children here mentioned were trespassers; for although, in the first case, the child was on the car by invitation of the 70 Brennan v. Fair Haven & W. R. Co., 45 Conn. 284; Wilton v. Middlesex R. Co., 107 Mass. 108; Danbeck v. New Jersey Traction Co., 57 N. J. Law, 463; Hart v. West Side R. Co., 86 Wis. 483. 76 64 Hun (N. Y.) 373. 77 Pittsburg, A. & M. P. Ry. Co. v. Caldwell, 74 Pa. 421. 78 112 Pa. 551. (26) Ch. 1] WHO IS A PASSENGER. g 10 driver, yet, as he had no authority to give such invitation, according to the case of Duff v. Allegheny Valley E. Co.,'* it was but as a trespasser." The state of mind of the child, as has been mentioned, is of the greatest importance, and, in the common case of steal- ing a ride with no intention of paying fare, the child is held to be a trespasser. It has been so held in the case of a boy of twelve,^" a boy of eleven,*^ one of ten,®^ one of eight,*^ and one of six.** In North Birmingham E.y. Co. v. Liddicoat*^ the court said: "What has been said has no application to a person who, being at either a regular station or a place of customary use for receiving and discharging passengers, has not a bona fide intention of boarding a train as a passenger, but simply intends or attempts to obtain passage without the knowledge and consent of the carrier's servants or employes, and with- out paying fare. Such a person would in no sense be a passenger, but a trespasser, to whom the carrier would owe no higher duty than to refrain from wanton or willful neg- ligence ; or, upon discovering him to be in a position of peril, to employ such reasonable care as the facilities at hand would permit to avoid the threatened injury." In Little Eock Traction & Electric Co. v. IsTelson*® the court said: "The employes of a street railway company 70 91 Pa. 458. 80 Hagestrom v. West Chicago St. Ry. Co., 78 111. App. 574; Biddle V. Hestonvllle, M. & P. P. Ry. Co., 112 Pa. 551. 81 North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545. 82 Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494. 83 Jackson v. St. Paul City Ry. Co., 74 Minn. 48. / 84 Bishop V. Union R. Co., 14 R. I. 314. 85 99 Ala. 545. 86 66 Ark. 494. (27) § 11 STREET RAILWAY ACCIDENT LAW. [Ch. 1 are under no obligation to keep a lookout to prevent boys endeavoring to ride without permission and paying fare from entering its ears while in motion. Such a boy who does or attempts to do so is a trespasser, and the company owes him no duty save not to injure him wantonly." There is, in addition, a class of cases where the child seems to have had no idea of paying fare, on the one hand, or of stealing a ride, on the other. f In Jackson v. St. Paul City Ey. Co.^'' it was held that, when a boy of eight got upon the car and sat down on the platform with his feet on the step, this was not prima facie evidence that he was a trespasser. In Barre v. Heading City Passenger Ry. Co.,®* a girl of eleven, and in Levin v. Second Ave. Traction Co.,*® a boy of five, were held not to be "trespassers," in the legal sig- nification of the word, on account of their youth. In Levin V. Second Ave. Traction Co.,®" the court explained that they meant by this language that the children were not trespass- ers, to whom no duty was owed. I 11. Same — Newsboys. A newsboy who is permitted to jump on and off the cars for the purpose of selling his papers, according to the weight of authority, is neither a passenger nor a trespasser, but occupies the position of a mere licensee.®^ ST 74 Minn. 48. 88 155 Pa. 170. 89 194 Pa. 156. 90 201 Pa. 58. 91 North Chicago St. Ry. Co. v. Thurston, 43 111. App. 587; Raming V. Metropolitan St. Ry. Co., 157 Mo. 477; Padgitt v. Moll & C. Ry. Co., 159 Mo. 143; Fleming v. Brooklyn City R. Co., 1 Abb. N. C. 433, af- firmed 74 N. Y. 618; Philadelphia Traction Co. v. Orbann, 119 Pa. 57; Blackmore v. Toronto St. Ry. Co., 38 U. C. Q. B. 172. Ch. 1] WHO IS A PASSENGER. § H In Amato v. Sixth Ave. K. Co.,^^ nothing was said as to the custom of the railroad in allowing newsboys to sell their papers on their ears, but the court apparently recognized no middle ground, and said: "We assume that, in boarding the defendant's car, not intending to become a passenger, the plaintiff, for the time being, was a trespasser." In Padgitt v. Moll & Citizens' Ky. Co.®^ the court said: "A newsboy jumping on and off a moving street car to sell his newspapers, not hailing to stop the car to receive him, nor signaling to stop to allow him to alight, not asking or re- ceiving permission, either express or tacit, not asking or waiting for leave or license, but jumping on and off under circumstances that clearly indicate no purpose to pay fare, and no aim to be transported, but only to avail himself of the presence of persons on the car likely to buy his papers, is in no sense a passenger." It has also been held that he is in no better position if he is ready to pay fare if called upon.®* The cases are not in accord as to the degree of care re- quired of the company under these circumstances. In ISTorth Chicago St. Ry. Co. v. Thurston®^ it was held that the plaintiff could not recover unless he could prove that the company wantonly or willfully inflicted an injury upon him; and in Fleming v. Brooklyn City R. Co.''^ the court said : "The complaint proceeds upon the theory that, by permitting newsboys to traffic with the passengers on the 92 9 Misc. Rep. (N. Y.) 4. 03 159 Mo. 143. 94 Raming v. Metropolitan St Ry. Co., 157 Mo. 477. 95 43 111. App. 587. 80 1 Abb. N. C. 433, affirmed 74 N. Y. 618. (29) § 12 STREET RAILWAY ACCIDENT LAW. [Ch. 1 cars, the defendant becomes charged with the duty of look- ing after their safety, of seeing that they do not run into danger, and of stopping and slackening the speed of the car for them to leave, whether requested to do so or not. I do not think the railroad company can fairly be said to have assumed any such obligation. Of course the driver had no right to do anything which would recklessly or needlessly expose this boy to danger." In Padgitt v. Moll & Citizens' Ky. Co." it was held that, while the plaintiff was in no sense a passenger, and the car- rier was not under any obligation to observe towards him the same degree of care which it was obliged to show its pas- sengers, nevertheless the law did require, under such circum- stances, the exercise of ordinary care. If a newsboy is allowed on a car, and is then ordered to get off where he can do so with safety, he is a trespasser if he remains on the car, and protected from willful injury only,^* but he must hear the order.^' § 12. Position ot» car. The position which a person assumes may be a factor in determining his relation to the company. Thus, where a boy of twelve jumped upon the pipe which ran across a street car at the rear of the dashboard, and rode there with- out any intention of becoming a passenger or paying his fare, he was held to be a trespasser, and not a passenger;^"" and where a boy of eleven boards a car without intending to 97 159 Mo. 143. 88 Indianapolis St. Ry. Co. v. Hockett (Ind. App.) 64 N. E. 633. 09 Indianapolis St. Ry. Co. v. Hockett (Ind.) 67 N. E. 106. 100 Hagestrom v. West Chicago St. Ry. Co., 78 111. App. 574. (30) Ch. 1] WHO IS A PASSENGER. g 12 pay fare, but meaning to steal a ride, and hides himself to escape detection, he is a mere trespasser unless the driver or conductor assents to his riding, directly or by implica- tion, and the mere fact that the driver knew of his presence is not enough to show assent.^"^ In Udell V. Citizens' St. E. Co.io^ the plaintiff, a boy eight and one-half years of age, being unable to get into an open, electric street car on account of the crowded condition thereof, stood on the side of the car not intended for pas- sengers, and on which strips were placed to prevent the in- gress or egress of passengers, with his feet on the boxing of the axle, and held onto a portion of a seat with his hands. He rode in a stooped position three-fourths of a mile, when, being unable to retain his hold, he fell, and was run over by the wheels of the car, and injured. ITone of the employe! of the train saw the boy hanging on the car when it was in the act of starting, nor while under way, but might have seen him if they had made an examination of that part of the car. Plaintiff did not pay his fare, but intended to do so when called upon. Held, that plaintiff was not a passenger upon defendant's cars, to whom it owed a duty of safe car- riage and immunity from injury. The court said: "Ap- pellant was not in a place intended for passengers. He was not received as a passenger. His presence on the car was not made known to appellee's agents and servants. He did not conduct himself as a passenger. Appellee's servants were not required to search for trespassers before starting the cars, and appellee was not bound to discover appellant, and remove him from the perilous situation in which he had voluntarily placed himself." 101 Wynn v. City & Suburban Ry. Co., 91 Ga. 344. 102 152 Ind. 507. (31) I 13 STREET RAILWAY ACCIDENT LAW. [Ch. 1 ■» - • In Weber v. Brooklyn, Q. C. & S. K. Co.i"' it was held that, when a passenger leaves his seat to protest to the con- ductor against his treatment of an intoxicated person, he does not thereby forfeit his rights as a passenger. In Barlow v. Jersey City, H. & P. Ey. Co.,^**'' a boy of twelve got on the step of the front platform of a moving elec- tric car, meaning to become a passenger on the car. Access to the platform was barred by a closed door, the place pro- vided for entering the car being at the rear platform. The boy rapped on the door, and the motorman saw him, bnt paid no attention to him. The car struck a wagon, and the boy was thrown off and injured. It was held that he was in no sense a passenger, and that the company owed him no duty except to abstain from willful injury. § 13. Conduct. A passenger may forfeit his rights as such by his con- duct. He may refuse to pay his fare on demand, and thus become liable to ejection,^"® and a fortiori he has no rights as a passenger after he has once been ejected, and is seek- ing to gain an entrance again. ^"^ Whether he has paid his fare or not, he forfeits his rights as a passenger by the use of abusive and insulting language calculated to disturb the other passengers,^"' or by conduct which is disorderly, and 103 47 App. Div. (N. Y.) 306. 10* 67 N. J. Law, 364. 105 Chicago City Ry. Co. v. Pelletier, 134 III. 120; West Chicago St. R. Co. V. Luleich, 8.5 111. App. 643; Hudson v. Lynn & B. R. Co., 178 Mass. 64; Sanford v. Eighth Ave. R. Co., 23 N. Y. 343. 106 North Chicago St. R. Co. v. Olds, 40 111. App. 421, 64 111 App 595. 107 Chicago City Ry. Co. v. Pelletier, 33 111. App. 455, 134 111. 120; Robinson v. Rockland, T. & C. St. Ry. Co., 87 Me. 387; Eads v Met- (32) Ch. 1] WHO IS A PASSENGER. § 13 calculated to annoy his fellow passengers.^"^ It is not nec- essary for those in charge of the car to wait until an actual disturbance takes place, but a reasonable anticipation of con- duct that will prove offensive or annoying to other passen- gers is sufEeient.^"^ A passenger may lose his standing as such by refusing to obey a reasonable rule of the company, as, for instance, a rule requiring a passenger to deposit his fare in a box on entering a car,^^" a rule forbidding pas- sengers to ride on the front^" or rear platform,"- a rule for- bidding passengers to bring dogs upon the car,^^^ or a rule that passengers must not take into street cars packages or goods that are cumbersome or dangerous.^** A passenger who leaves his seat to protest to the conductor against his treatment of an intoxicated person does not thereby forfeit his rights as a passenger.'^''^ ropolitan Ry. Co., 43 Mo. App. 536; Plynn v. Central Park, etc., R. Co., 49 N. Y. Super. Ct. 81. 108 West Chicago St. R. Co. v. Luleich, 85 111. App. 643; Vinton v. Middlesex R. Co., 11 Allen (Mass.) 304; Murphy v. Union Ry. Co., 118 Mass. 228; Bdgerly v. Union St. R. Co., 67 N. H. 312; Higgins v. Watervliet Turnpike & R. Co., 46 N. Y. 23; Putnam v. Broadway & S. A. R. Co., 55 N. Y. 108; Flynn v. Central Park, etc., R. Co., 49 N. Y. Super. Ct. 81. io9Lemont v. Washington & G. R. Co., 1 Mackey (D. C.) 180; Vin- ton V. Middlesex R. Co., 11 Allen (Mass.) 304; Murphy v. Union Ry. Co., 118 Mass. 228; Hudson v. Lynn & B. R. Co., 178 Mass. 64; Ed- gerly v. Union St. R. Co., 67 N. H. 312. 110 Nye V. Marysville & Y. C. St. R. Co., 97 Cal. 461; Curtis v. Louis- ville City Ry. Co., 94 Ky. 573. 111 Montgomery v. Buffalo Ry. Co., 165 N. Y. 139; McMillan v. Fed- eral St. & P. V. P. Ry. Co., 172 Pa. 523. 112 Ft. Clark St. R. Co. v. Bbaugh, 49 111. App. 582. 113 Butler V. Stein way Ry. Co., 87 Hun (N. Y.) 10. inDowd V. Albany Ry. Co., 47 App. Div. (N. Y.) 202. 115 Weber v. Brooklyn, Q. C. & S. R. Co., 47 App. Div. (N. Y.) 306.. (33), Ry. Ace— 3. § 14 STREET RAILWAY ACCIDENT LAW. [Ch. 1 IV. Passenger oe Employe. An employe oflf duty riding free under a rule or custom of the company is a passenger. A passenger assisting a driver to push back a car is not a fellow servant of the driver of another car, which injures him. A newsboy allowed on the cars to sell his papers is not an employe engaged or employed on or about the road or cars of the company, and a boy riding free to turn a switch is not a volunteer fellow servant. § 14. Employe off duty. In Dickinson v. West End St. Ky. Co.,^^* an action for per- sonal injuries to a motorman, who was thrown from the front platform while riding on an electric car, in consequence of the negligence of the motorman in charge of it, it appeared that the plaintiff, at the time of the accident, was not on duty, but was riding home to dinner, and under a rule of the com- pany, being in uniform, had not been required to pay a fare. It was held that the plaintiff was on the defendant's car as a passenger at the time of the accident, and was not at that mo- ment in the service of the defendant in such a sense that the negligent motorman was his fellow servant. A person who is employed by a railroad company as a day laborer, reporting daily for service, and subject to call, but allowed to attend to other business when not needed for the day, who gets on a train for bis own purposes when "off duty," without being obliged to pay fare, according to a cus- tom of the railroad, occupies the position of a passenger, and not of an employe, and a mere direction given him by the 116 177 Mass. 365. (34) Ch. 1] WHO IS A PASSENGER, | ife conductor to do a single act, as to turn a switch, does not es- tablish employment.-'^'' A section man of a street car company which was in the habit of furnishing such employes transportation to and from their work is lawfully upon the train, and is not a mere tres- passer while riding by order of his foreman, although no fare was collected or expected from him.^-'® A day laborer allowed to ride to and from work as part compensation is not a fellow servant of the employes operat- ing a car on which he is riding home after work.^^* § 15. Passenger assisting employe. Where a car went beyond a turnout on a single track, and it became necessary to push it back, it was held that a passen- ger assisting the driver of the car was not a fellow servant of the driver of another car, which injured him.^^" § 16. Passenger allowed to ride free. In Philadelphia Traction Co. v. Orbann,^^^ a newsboy al- lowed to board the cars of a street railway company to sell his papers was held to be a licensee, and not an employe engaged or employed on or about the road or cars of the com- pany, under the act of April 4, 1868 (P. L. 58). In Hart v. West Side E. Co.,^^^ a boy of eleven was in- vited by the motorman to ride free to turn a switch for 117 McDaniel v. Highland Ave. & B. R. Co., 90 Ala. 64. lis Denver & B. P. Rapid Transit Co. v. Dwyer, 20 Colo. 132. 119 Peterson v. Seattle Traction Co., 23 Wash. 615. 120 Street Ry. Co. v. Bolton, 43 Ohio St. 224. 121 119 Pa. 37. 122 86 Wis. 483. (35) g 16 STREET RAILWAY ACCIDENT LAW. [Ch. 1 Lira. The complaint alleged that it was the custom of the motorman to permit boys to ride upon the front platform for the purpose of inducing the boys to turn the switch, and that the plaintiff rode there for this purpose. It was held that the plaintiff was not a volunteer fellow servant; that even assuming that one who, at the request of those in charge of an electric car, temporarily assists in the operation of said car is to be regarded for the time being as a servant of the company, and the co-employe of those in charge of the car, the complaint failed to allege any such relation- ship. (36) CHAPTER II. ACCIDENTS WHILE BOARDING THE CAR. I. Due Caee of Passengee. § 17. Due Care in Boarding Moving Car in General a Question of Pact. 18. Special Circumstances — Speed of Car. 19. Same — Age and Physical Condition. 20. Same — Incumbered with Bundles. 21. Same — Condition of Car. 22. Same — Condition of Traclj. 23. Same — Boarding Without Signal. 24. Same — Boarding Against Rule or Warning. 25. SaniB — Manner of Boarding Car. 26. Boarding Car not in Motion. II. Negligekce of Company. § 27. Reasonable Opportunity to Board. 28. Children. 29. Miscellaneous. I. Due Cake of Passengee. It is not lack of due care, as a matter of law, to board a moving street car, whether horse car, electric car, cable car, or car drawn by a dummy engine, and whether the attempt to board is made by the front platform, rear platform, or running board. Ordinarily it is a question of fact for the jury, depending on all the circumstances of each particular case. Special circumstances, however, such as the speed of the car, the condition of the car and the track, the age and phys- ical condition of the person -making the attempt, whether or not he was incumbered with bundles, the manner of board- ing, whether a signal was given, and whether the attempt (37) §17 STREET RAILWAY ACCIDENT LAW. [Ch. 2 was made contrary to a rule or warning, may justify the courts in holding a person guilty of lack of due care as a matter of law. It is not lack of due care to board a stationary car by the front platform or by the rear platform without taking hold of the handles provided. § 17. Due care in boarding moving car in general a ques- tion of fact. It is well settled that it is not lack of due care, as a mat- ter of law, to board a moving street car.' This is so, wheth- 1 North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545; Birmingham Electric Ry. Co. v. Clay, 108 Ala. 233; Finkeldey v. Omnibus Cable Co., 114 Cal. 28; Brown v. Washington & G. R. Co., 11 App. D. C. 37; West Chicago St. R. Co. v. Dudzik, 67 111. App. 681; West Chicago St. R. Co. V. Lups, 74 111. App. 420; North Chicago St. R. Co. v. Kas- pers, 85 111. App. 316; North Chicago St. R. Co. v. Williams, 140 111. 275; Cicero & P. St. Ry. Co. v. Meixner, 160 111. 320; North Chicago St. R. Co. V. Wiswell, 168 111. 613; South Chicago City R. Co. v. Dufresne, 200 111. 456; Citizens' St. R. Co. v. Spahr, 7 Ind. App. 23; Citizens' St. Ry. Co. v. Merl, 26 Ind. App. 284; Conner v. Citizens' St. Ry. Co., 105 Ind. 62; Central Passenger Ry. Co. v. Rose, 15 Ky. Law Rep. 209; McDonough v. Metropolitan R. Co., 137 Mass. 210; Briggs V. Union St. Ry. Co., 148 Mass. 72; Corlin v. West End St. Ry. Co., 154 Mass. 197; Gordon v. West End St. Ry. Co., 175 Mass. 181; Davey v. Greenfield & T. P. St. Ry. Co., 177 Mass. 106; Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; Schepers v. Union Depot R. Co., 126 Mo. 665; Schaefer v. St. Louis & S. Ry. Co., 128 Mo. 64; Sly v. Union Depot R. Co., 134 Mo. 681; Hansberger v. Sedalia Electric Ry., L. & P. Co., 82 Mo. App. 565; O'Mara v. St. Louis Transit Co. (Mo. App.) 76 S. W. 680; Omaha St. Ry. Co. v. Martin, 48 Neb. 65; Schmidt v. North Jersey St. Ry. Co., 6'6 N. J. Law, 424; Maher v. Central Park, N. & E. R. R. Co., 67 N. Y. 52; Eppendorf v. Brook- lyn City & N. R. Co., 69 N. Y. 195 ; Moylan v. Second Ave. R. Co., 128 N. Y. 583; Morrison v Broadway & S". A. R. Co., 130 N. Y. 166; Savage V. Third Ave. R. Co., 29 App. Div. (N. Y.) 556; Wallace v. Third (38) Ch. 2] ACCIDENTS WHILE BOARDING CAR. § 17 er the car is a horse car,^ an electric car,^ a cable car,* or a car drawn by a dummy engine ;° and whether the attempt Ave. R. Co., 36 App. Div. (N. Y.) 57; Sexton v. Metropolitan St. Ry. Co., 40 App. Div. (N. Y.) 26; Valentine v. Broadway & S. A. R. Co., 14 Daly (N. Y.) 540; Seitz v. Dry Dock, E. B. & B. R. Co., 16 Daly (N. Y.) 264; Gilbert v. Third Ave. Ry. Co., 54 N. Y. Super. Ct. 270; McSwyny v. Broadway & S. A. R. Co., 7 N. Y. Supp. 456; Kimber v. Metropolitan St. Ry. Co., 69 App. Div. (N. Y.) 353; Lobsenz v. Metropolitan St. Ry. Co., 72 App. Div. (N. Y.) 181; Stager V. Ridge Ave. Passenger Ry. Co., 119 Pa. 70; Picard v. Ridge Ave. Passenger Ry. Co., 147 Pa. 195; Walters v. Philadelphia Traction Co., 161 Pa. 36; Woo Dan v. Seattle Electric Ry. & P. Co., 5 Wash. 466. 2Finkeldey v. Omnibus Cable Co., 114 Cal. 28; Brown v. Wash- ington & G. R. Co., 11 App. D. C. 37, North Chicago St. R. Co. v. Williams, 140 111. 275; ConDOr v. Citizens' St. Ry. Co., 105 Ind. 62; McDonough v. Metropolitan R. Co., 137 Mass. 210; Briggs v. Union St. Ry. Co., 148 Mass. 72; Maher v. Central Park, N. & B. R. R. Co., 67 N. Y. 52; Eppendorf v. Brooklyn City & N. R. Co., 69 N. Y. 195; Moylan v. Second Ave. R. Co., 128 N. Y. 583; Morrison v, Broadway 6 S. A. R. Co., 130 N. Y. 166; Sexton v. Metropolitan St. Ry. Co., 40 App. Div. (N. Y.) 26; Valentine v. Broadway & S. A. R. Co., 14 Daly (N. Y.) 540; Seitz v. Dry Dock, B. B. & B. R. Co., 16 Daly (N. Y.) 264; Stager v. Ridge Ave. Passenger Ry. Co., 119 Pa. 70; Picard V. Ridge Ave. Passenger Ry. Co., 147 Pa. 195. s Cicero & P. St. R. Co. v. Meixner, 160 111. 320; South Chicago City R. Co. V. Dufresne, 200 111. 456; Citizens' St. R. Co.. v. Spahr, 7 Ind. App. 23; Citizens' St. Ry. Co. v. Merl, 26 Ind. App. 284; Cen- tral Passenger Ry. Co. v. Rose, 15 Ky. Law Rep. 209; Corlln v. West End. St. Ry. Co., 154 Mass. 197; Gordon v. West End St. Ry. Co., 175 Mass. 181; Davey v. Greenfield & T. F. St. Ry. Co., 177 Mass. 106; Schepers v. Union Depot R. Co., 126 Mo. 665; Schaefer v. St. Louis & S. Ry. Co., 128 Mo. 64; Sly v. Union Depot R. Co., 134 Mo. 681; Hansberger v. Sedalia Electric Ry., L. & P. Co., 82 Mo. App. 566; O'Mara v. St. Louis Transit Co. (Mo. App.) 76 S. W. 680; Omaha St. Ry. Co. v. Martin, 48 Neb. 65; Schmidt v. North Jersey St. Ry. Co., 66 N. J. Law, 424; Kimber v. Metropolitan St. (39^ § 17 STREET RAILWAY ACCIDENT LAW. LCh. 2 to board is made by the front platform,* or the rear plat- form/ although it is held to be more dangerous to enter by the front platform than by the rear,® or by the running board.® Ry. Co., 69 App. Div. (N. Y.) 353; Lobsenz v. Metropolitan St. Ry. Co., 72 App. Div. (N. Y.) 181; Woo Dan v. Seattle Electric Ry. & P. Co., 5 Wash. 466. 4 West Chicago St. R. Co. v. Dudzik, 67 111. App. 681; West Chi- cago St. R. Co. V. Lups, 74 111. App. 420; North Chicago St. R. Co. V. Kaspers, 85 111. App. 316; North Chicago St. R. Co. v. Wiswell, 168 111. 613; Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; Sav- age V. Third Ave. R. Co., 29 App. Div. (N. Y.) 556; Wallace v. Third Ave. R. Co., 36 App. Div. 'N. Y.) 57; Walters v. Philadelphia Traction Co., 161 Pa. 36. 6 North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545. « Pinkeldey v. Omnibus Cable Co., 114 Cal. 28 ; North Chicago St. R. Co. V. Kaspers, 85 111. App. 316; Cicero & P. St. Ry. Co. v. Meix- ner, 160 111. 320; McDonough v. Metropolitan R. Co., 137 Mass. 210; Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; Hansberger v. Sedalia Electric Ry., L. & P. Co., 82 Mo. App. 566; Omaha St. Ry. Co. v. Martin, 48 Neb. 65 ; Maher v. Central Park, N. & B. R. R. Co., C7 N. Y. 52; Sexton v. Metropolitan St. Ry. Co., 40 App. Div. (N. Y.) 26; Stager v. Ridge Ave. Passenger Ry. Co., 119 Pa. 70; Woo Dan V. Seattle Electric Ry. & P. Co.. 5 Wash. 466. 7 North Chicago St. R. Co. v. Wiswell, 168 111. 613; Conner v. Citi- zens' St. Ry. Co., 105 Ind. 62; Briggs v. Union St. Ry. Co., 148 Mass. 72; Corlin v. West End St. Ry. Co., 154 Mass. 197; Schepers v. Union Depot R. Co., 126 Mo. 665; Sly v. Union Depot R. Co., 134 Mo. 681; Morrison v. Broadway & S. A. R. Co., 130 N. Y. 166; Sexton v. Met- ropolitan St. Ry. Co., 40 App. Div. (N. Y.) 26; Kimber v. Metropoli- tan St. Ry. Co., 69 App. Div. (N. Y.) 353; Lobsenz v. Metropolitan St. Ry. Co., 72 App. Div. (N. Y.) 181. s Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; Maher v. Cen- tral Park, N. & E. R. R. Co., 67 N. Y. 52; Paulson v. Brooklyn City R. Co., 13 Misc. Rep. (N. Y.) 387. 9 North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545; West Chi- cago St. R. Co. v. Lups, 74 111. App. 420; North Chicago St. R. Co. V. Williams, 140 III. 275; South Chicago City R. Co. v. Dufresne 200 (40) Ch. 2] ACCIDENTS WHILE BOARDING CAR. §17 In Cicero & P. St. Ey. Co. v. Meixner'" the court said : "In large and populous cities, where cars are constantly re- ceiving and discharging passengers at crossings, it is a well- known fact that many of such passengers board cars and alight therefrom before such cars have come to a full stop, and that they do so usually with perfect safety. It is well known, also, that street car companies tacitly invite many passengers to board and alight from their cars by checking up to a slow rate of speed, and immediately starting up at a greater speed when the passenger is safely aboard or has alighted. It would be impossible for a court to lay down the rule as to what particular rate of speed would be suffi- cient notice to a passenger that, if he attempted to get on or off, he would be held guilty of contributory negligence. It would also be a great hardship, and unjust, to lay down a general rule that a passenger attempting to board a street car while in motion at all should be held in contributory negligence. Every person is supposed to know that the boarding of a moving train or car is attended with the danger of a misstep or fall, and a fall beside a moving car is liable to bring some part of the body or limbs in danger of being crushed. It is the duty of those having control and man- agement of cars designated for traffic on the public streets to bring such cars to a full stop at such places as are con- venient and necessary for the purpose of discharging and receiving passengers, and it is no less the duty of passengers, 111. 456; Citizens' St. Ry. Co. v. Merl, 26 Ind. App. 284; Gordon v. West End St. Ry. Co., 175 Mass. 181; Davey v. Greenfield & T. F. St. Ry. Co., 177 Mass. 106; Eppendorf v. Brooklyn City & N. R. Co., 69 N. Y. 195. 10 160 111. 320. (41) Ij 17 STREET RAILWAY ACCIDENT LAW. [Ch. 2 in getting on or off such cars, to observe due precaution for their own safety. \\'e cannot say, liowever, that it is in- consistent with ordinary care and caution for a person to board a street car while in motion. Whether one has not exercised due care or caution in so doing is to be determined by the particular circumstances in each case, and is there- fore a question of fact, to be submitted to the jury." Ordinarily it is a question for the jury whether a person of ordinary prudence would, under the circumstances, have made the attempt. The age and physical condition of the person making the attempt, whether or not he is incumbered with packages, the rate of speed of the car, the- nature of the car and place, and all the surrounding facts and circum- stances must be taken into consideration.^^ The strict rules as to boarding which are in force in the case of ordinary steam railroads are not applied in all their severity to street railroads, owing to the great difference in speed, method of propulsion, number of stop^, etc.-'^ The question as to whether a different rule should be ap- plied in the case of horse and eleciric cars has been fre- quently discussed. The general result seems to be that llic difference in the agencies employed is not so great as lo re- quire the application of a different rule. 11 North Birmingham Ry. Co. v. Liddicoat, 99 Ala. 545; Finkeldey V. Omnibus Cable Co., 114 Cal. 28; McDonough v. Metropolitan R. Co., 137 Mass. 210; Sly v. Union Depot R. Co., 134 Mo. 681; Eppen- dorf V. Brooklyn City & N. R. Co., 69 N. Y. 195; Woo Dan v. Seattle Electric Ry. & P. Co., 5 Wash. 466. 12 North Chicago St. R. Co. v. Williams, 140 III. 275; Cicero & P. St. Ry. Co. V. Meixner, 160 111. 320; Citizens' St. R. Co. v. Spahr, 7 Ind. App. 23; Conner v. Citizens' St. Ry. Co., 105 Ind. 62; McDon- ough V. Metropolitan R. Co., 137 Mass. 210; Powelson v. United Traction Co., 204 Pa. 474 (42) Ch. 2 J ACCIDENTS WHIL3 BOARDING CAR. §17 In Citizens' St. It. Co. v. Spahr^^ the court said: "It is urged that here a different rule governs, because the mo- tive power is different, being electricity, instead of horse power. K"o authority is cited to sustain the distinction, nor are we able to see any ground for any material difference in the rules of law to be applied, since the objects and gen- eral methods and purposes of the street railway remain the same, whatever be the motive power." In Sahlgaard v. St. Paul City Ey. Co.'"* it was held that, as a rule, the attempt to board cable or electric trains may be more unsafe than horse cars, because of the greater speed of such trains. In Pfeffer v. Buffalo Ry. Co.^^ the court, in speaking of the rule that starting a horse car suddenly is an act of negligence, said: "Stronger reasons exist for applying this rule to cars propelled by electricity than to horse cars, as the motive power is more sudden and powerful in its opera- tion." In Powelson v. United Traction Co.-'® the court held that to board an electric car is per se lack of due care, subject to some few exceptions. In Cicero & P. St. Ry. Co. v. Meixner*^ the court said : "The cases heretofore cited, in which it has been held that it is not negligence per se for a person to board or alight from a street car while in motion, have reference, in a great 13 7 Ind. App. 23. " 48 Minn. 232. 15 4 Misc. Rep. (N. Y.) 465. 16 204 Pa. 474. See, also, Hunterson v. Union Traction Co. (Pa.) 55 Atl. 543. 1' 160 111. 320. (43) § 17 STREET RAILWAY ACCIDENT LAW. [Ch. 2 degree, to horse cars. Where such motive power is used, the act is not in itself negligence, while in the case of cars pro- pelled by steam, the act is held to be negligence. Where the motive power is electricity, a question not entirely free from difficulty is presented. * * * Electricity as a mo- tive power, while stronger and more powerful, and with possibilities of a greater speed, is at the same time more nearly under the control of the person in charge than horse [ power. * * * 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 approach 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." In Corlin v. West End St. Ky. Co.^* the court said: ^'There is nothing in the bill of exceptions to show that any different rule should be applied than if the car had been a horse car, moving at the same rate of speed. It is to be inferred that the car was designed for the transportation of passengers from place to place along the public streets, and was to take them up and leave them as requested. There were no platforms or other conveniences for getting on or off along the route, and, if there was a rule requiring the car to be stopped to receive and discharge passengers only at designated places, the bill of exceptions does not show it. On the question whether the plaintiff was using due care, such a rule would be immaterial, unless he knew it, or ought to have known it. It is probable that the car could be as 18 154 Mass. 197. (M) Ch. 2] ACCIDENTS WHILE BOARDING CAR. § 18 easily controlled as a horse car, and we see no reason for applying to it a rule of law which is not applicable to horse cars." The rule applied to street cars whose motive power is electricity must, on principle, be applied to those whose mo- tive power is cable. '^ § 18. Special circumstances — Speed of car. In a number of cases the conduct of a person attempting to board a street car is so manifestly reckless that the courts have not hesitated to declare it a bar to recovery. The rate of speed at which the car is moving is, of course, a very important consideration. Thus it has been held that it is lack of due care to attempt to board a street car "in rapid motion,"^" "while it was in motion,"^^ "moving quite rap- idly, "^^ "moving at average speed, or faster,"^^ "moving seven or eight miles an hour,"^* "moving ten miles an hour."^^ On the other hand, it has been held that it is not negligence, as matter of law, to board an electric car moving three or four miles an hour,^® from three to seven miles an hour,^'^ or even Vv'hen it is moving eight miles an hour.^* 19 North Chicago St. R. Co. v. Wiswell, 168 111. 613. 20 Chicago City Ry. Co. v. Delcourt, 33 111. App. 430; Hansberger V. Sedalia Electric Ry., L. & P. Co., 82 Mo. App. 566. 21 Chicago City Ry. Co. v. Hastings, 35 111. App. 434; Wolfkiel v. Sixth Ave. R. Co., 38 N. Y. 49. 22 Chicago City Ry. Co. v. Sullivan, 76 111. App. 505. 23 Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232. 24 Woo Dan v. Seattle Electric Ry. & P. Co., 5 Wash. 466. 25 Brooks V. Mt. Auhurn Cable Co., 29 Wkly. Law Bui. (Ohio) 50. 26 Schepers v. Union Depot R. Co., 126 Mo. 665. 27 Sly V. Union Depot R. Co., 134 Mo. 681. 28 Citizens' St. R. Co. v. Spahr, 7 Ind. App. 23 (45) ^ 20 STREET KAILWAY ACCIDENT LAW. £Ch. 2 In Biriningliam R. & E. Co. v. Brannon,^® a charge de- claring that, as a matter of law, it is not negligence for a passe:.ger to attempt to board a street car in slow motion, was held to be improper. § 19. Same — Age and physical condition. The age of the plaintiff is another fact to be taken into consideration. The due care of a man of seventy, injured while boarding a moving ear, was held to be a question for the jury;^" and it has been held that an old man, boarding a crowded moving car while incumbered with a cane and an umbrella, is not in the exercise of due care.^^ The physical condition of the plaintiff also plays an important part. Where a cripple with a wooden leg attempted to board a moving car, it was held that he took the risk of the accident which ensued.^^ A person forty-five years old, five feet two inches in height, and weighing about two hundred pounds, who attempts to board a street car moving at the rate of six or more miles an hour, with a bottle in his right hand, and a basket on his left arm, is not in the exercise of due care.^^ § 20. Same — Incumbered with bundles. Whether or not the plaintiff was incumbered with bundles, etc., has also been a factor which has influenced the courts. One who attempts to board a train, running from four to seven miles an hour, with his arms full of bundles, is not 29 132 Ala. 431. so Morrison v. Broadway & S. A. R. Co., 130 N. Y. 166. 31 Reynolds v. Richmoad & M. Ry. Co., 92 Va. 400. 32 Holohan v. Washington & G. R. Co., 19 D. C. 316. 33 Baltimore Traction Co. v. State, 78 Md. 409. (46) Ch. 2] ACCIDENTS WHILE BOARDING CAR. g 21 in the exercise of due care.** Neither is a person about forty-five years of age, five feet two inches in height, and weighing about two hundred pounds, who attempts to board a street car moving at the rate of six or more miles an hour, with a bottle in his right hand, and a basket on his left arm;*^ or a man who attempts to board a moving street car with his coat and dinner bucket on his left arm;** or a man who attempts to board a moving car by the front plat- form, and is unable to use his right hand, his left being in- cumbered with a bundle of sash cord and a hammer.*'' An old man boarding a crowded moving car while incumbered with a cane and an umbrella is not in the exercise of due care.** It has, however, been held that boarding a moving car while incumbered with bundles,** or with an umbrella in one hand, and a handkerchief in the other, is not neces- sarily lack of due care;*" and that a man incumbered with a plank, a cane, a bucket, and an ax must use more care than usual in boarding, but is not prevented from recover- ing, as matter of law.*^ § 21. Same — Condition of car. The condition of the car is another circumstance to be considered. Thus, where a boy of fifteen boarded a moving car by the front step, which was obviously in an unsafe con- 3i Birmingham Electric Ry. Co. v. Clay, 108 Ala. 233. 85 Baltimore Traction Co. v. State, 78 Md. 409. 36 Reddington v. Philadelphia Traction Co., 132 Pa. 154. 37 Paulson V. Brooklyn City R. Co., 13 Misc. Rep. (N. Y.) 387. 38 Reynolds v. Richmond & M. Ry. Co., 92 Va. 400. 39 Birmingham R. & B. Co. v. Brannon, 132 Ala. 431. 40 White V. Atlanta Consol. St. Ry. Co., 92 Ga. 494. *i Byrd v. New Orleans City & L. R. Co., 43 La. Ann. 822. (47) § 2Z STREET RAILWAY ACCIDENT LAW. [Ch. 2 dition, this was held. to be a bar to his recovery ;^^ and a person injured by stepping upon a board which was clearly not intended to be used as a step was likewise held to be unable to maintain an action.** § 22. Same — Condition of track. The character of the locality is another, and a very im- portant, fact to be considered. Where there were two par- allel street car tracks, it was held to be lack of due care for a person to stand between the tracks waiting to take passage on cars coming on one track, but paying no attention to see whether cars were approaching within dangerous prox- imity on the other track.** Where there were parallel tracks, and a passenger saw a car coming on the adjacent track, but attempted to hoard between the two tracks, due care was held to be a question of fact for the jury;*'' but under almost exactly the same state of facts, he was held in two other cases to be guilty of lack of due care as matter of law.*^ Where a person approaches a horse car which has stopped for him, and crosses another track, and attempts to enter on that side, he is not guilty of lack of due care as a matter of law.*^ 4= Dietrich v. Baltimore & H. S. Ry. Co., 58 Md. 347. 43 Keller v. Hestonvllle, M. & P. P. Ry. Co., 149 Pa. 65. "Miller v. St. Paul City Ry. Co., 42 Minn. 454; Schreiner v. St. Louis R. Co., 5 Mo. App. 596. 45 Schneider v. North Chicago St. R. Co., 80 111. App. 306. 46 Davenport v. Brooklyn City R. Co., 100 N. Y. 632; Halpin v. Third Ave. R. Co., 40 N. Y. Super. Ct. 175. 47 Dale V. Brooklyn City, H. P. & P. P. R. Co., 1 Hun (N. Y.) 146. (48) Ch. 2] ACCIDENTS WHILE BOARDING CAR. § 23 Where a man saw a truck standing in the street, got on the running board, and was almost immediately struck by the truck, it was held that he could not recover;^* and the same ruling was made where the obstruction was a heap of railroad ties.*^ Where a motorman stopped a car at a dangerous place beyond a crossing, the due care of a person attempting to board at such place was held to be for the jury.^" § 23. Same — Boarding without signal. Attempting to board a car without a signal does not es- tablish any relation between the parties.®-' Thus it has been held that, when a person attempts to board a moving street car which has not been stopped for him, the company is liable only for a willful or wanton injury f^ and where a car slackens speed, but there was no proof that it was in answer to the plaintiff's signal, it was held that he had no right to assume that such change in speed was made for his benefit.®^ Those in charge of a car are not negligent un- less they knew a passenger wished to get on a car, or the situation was such that an attempt to board might naturally be expected, and are not bound to see a person boarding a moving street car.®* 48 Moylan v. Second Ave. R. Co., 128 N. Y. 583. 49 Schmidt v. North Jersey St. Ry. Co., 66 N. J. Law, 424. 60 Vasele v. Grant St. Electric Ry. Co., 16 Wash. 602. 51 Supra, c. 1, § 4. 52 Basch V. North Chicago St. Ry. Co., 40 111. App. 583. 63 Reidy v. Metropolitan St. Ry. Co., 27 Misc. Rep. (N. Y.) 527. 64 Bachrach v. Nassau Electric R. Co., 54 N. Y. Supp. 958; Fre- mont V. Metropolitan St. Ry. Co., 82 N. Y. Supp. 307; Worthington V. Linden Ry. Co., 72 Mo. App. 162. (49) Ry. Ace. — 4. § 25 STREET RAILWAY ACCIDENT LAW. [Ch. 2 § 24. Same — ^Boarding car against rule or warning. It has been held that a person who attempts to get upon a horse car while it is in motion, after being directed by the driver to wait until the car stops, and who persists in attempting to get on, and is injured by running against the arm of a passenger on the step of the car, is not in the exercise of due care, and cannot maintain an action against the company owning the car.®* In Baltimore City Passenger Ry. Co. v. Wilkinson*' it was held that, if a person knowingly violates a rule against boarding a car by the front platform, he cannot recover, that the consent of the driver makes no difference, and that the fact that such notice was in the car, and that the plaintiff had often ridden in the car, was proof from which it might be inferred that he knew the rule. In Maxey v. Metropolitan St. E.. Co.*''^ it was held that a conductor was not negligent in that respect if he warned a person not to board a crowded car, which had stopped to let a passenger off, in a reasonably loud voice, even though she did not hear. § 25. Same — Manner of boarding car. In McSwyny v. Broadway & S. A. E. Co.** it was held that it was lack of due care for a woman to attempt to board a moving car by grasping the handle of the rear dashboard with her left hand, and placing her right foot on the step, and then raising her left foot to the step. 65 Gallagher v. West End St. Ry. Co., 156 Mass. 157. 56 30 Md. 224. 57 95 Mo. App. 303. 68 7 N. y: Supp. 456. (50) Ch. 2] ACCIDENTS WHILE BOARDING CAR § 26 In Birmingham E. & E. Co. v. Brannon'"' it was held that it was not lack of due care for a man to attempt to board a slowly-moving electric car, although he was incumbered with bundles, and got onto the step before grasping the handleholds on the body of the car or the platform, and though, after being on the step he caught the rear platform handlehold with his left hand, which was furthest from it, having to reach across his body to do so, his right hand being incapacitated by the packages he was carrying. In Picard v. Ridge Ave. Passenger Ry. Co.,*" a person facing the left-hand side of a car placed his left hand on the rail and his right foot on the step of the platform of a slowly-moving car, and, in an action for injuries received, was held not to be in the exercise of due care. When a car starts suddenly as a passenger is boarding, it is not lack of due care to continue to hold onto the rail.®-' § 26. Boarding car not in motion. Boarding a street car that is standing still is not lack of due care, whether the attempt is made by the front plat- form,®^ or by the rear ; and in the latter case it is not lack of due care, as a matter of law, to board when the platform is unoccupied, without taking hold of the railings.®^ 69 132 Ala. 431. 60 147 Pa. 195. ei Schoenfeld v. Metropolitan St. Ry. Co., 40 Misc. Rep. (N. Y.) 201. 62 Maher v. Central Park, N. & E. R. R. Co., 39 N. Y. Super. Ct. 155; Pfeffer v. Buffalo Ry. Co., 4 Misc. Rep. (N. Y.) 465. 63Ganiard v. Rochester City & B. R. Co., 50 Hun (N. Y.) 22. (51) g 27 STREET RAILWAY ACCIDENT LAW. [Ch. 2 II. ISTegligence of Company. If a car has been stopped for passengers to board, or has been slowed down to such an extent as to constitute an in^yi- tation to board, those in charge of the car must furnish a reasonable opportunity to intending passengers to board, and what is a reasonable opportunity depends to some extent on the age and agility of the persons making the attempt, and whether or not they are incumbered with bundles. Some cases hold that those in charge of a car must not only wait a reasonable time, but are bound to know that no one is in the act of boarding when they start the car. It is not neg- ligence to start a car before a passenger is seated. It is the duty of those in charge of the car to exercise ordi- nary care in selecting a suitable place for passengers to board, and to come to a full stop when signaled, although it is not negligence, as a matter of law, not to bring a car to a full stop, owing to the well-recognized custom on the part of both the company and the public. It is no part of the duty of those in charge of the car to keep a lookout to prevent injury to boys endeavoring to ride without permission, and without paying fare. § 27. Reasonable opportunity to board. A street railway company, as a common carrier of pas- sengers, while not an insurer of their safety,®* is bound to use a high degree of care f^ and it is universally held that, 64 Citizens' St R. Co. v. Jolly (Ind.) 67 N. E. 935; O'Connell v. St. Louis Cable & W. Ry. Co., 106 Mo. 482. 6sVan de Venter v. Chicago City Ry. Co., 26 Fed. 32; North Chi- cago St. R. Co. V. Cook, 145 111. 551; Citizens' St. R. Co. v. Jol- ly (Ind.) 67 N. E. 935; Steeg v. St. Paul City Ry. Co., 50 Minn. 149; O'Connell v. St. Louis Cable & W. Ry. Co., 106 Mo. 482; Ganiard v. Rochester City & B. R. Co., 50 Hun, 22, affirmed 121 N.' Y. 661. (52) Ch. 2] ACCIDENTS WHILE BOARDING CAR. ^ 27 after a ear has once been stopped for persons wishing to board, those in charge of the car must allow such persons a reasonable time in which to reach a position of safety on the car, and to start a car while a person is thus boarding is negligence.®^ The rule is the same where a car runs off the track, and a passenger gets off to help put it back. The company is bound to furnish a reasonable opportunity to board the car again.®'^ What is a reasonable time depends to some extent on the 66 Van de Venter v. Chicago City Ry. Co., 26 Fed. 32; Cohen v. West Chicago St. Ry. Co., 60 Fed. 698; Dudley v. Front St. Cable Ry. Co., 73 Fed. 128; Post v. Hartford St. Ry. Co., 72 Conn. 362; Anacostia & P. R. R. Co. v. Klein, 8 App. D. C. 75; Baltimore City Passenger Ry. Co. v. Baer, 90 Md. 97; Steeg v. St. Paul City Ry. Co., 50 Minn. 149; Miller v. St. Paul City Ry. Co., 66 Minn. 192; Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; O'Connell v. St. Louis Cable & W. Ry. Co., 106 Mo. 482; Barth v. Kansas City El. Ry. Co., 142 Mo. 535; Meriwether v. Kansas City Cable Ry. Co., 45 Mo. App. 528; Wolfkiel v. Sixth Ave. R. Co., 38 N. Y. 49; Black v. Brooklyn City R. Co., 108 N. Y. 640; Akersloot v. Second Ave. R. Co., 131 N. Y. 599; Kellegher v. Forty-Second St., M. & St. N. Ave. R. Co., 171 N. Y. 309; Ganlard v. Rochester City & B. R. Co., 50 Hun, 22, affirmed 121 N. Y. 661; De Rozas v. Metropolitan St. Ry. Co., 13 App. Div. (N. Y.) 296; Wallace v. Third Ave. R. Co., 36 App. Div. (N. Y.) 57; Fay v. Metropolitan St. Ry. Co., 62 App. Div. (N. Y.) 51; Mc- Quade v. Manhattan Ry. Co., 53 N. Y. Super. Ct. 91; Lamline v. Houston, W. hi. & P. Ferry R. Co., 14 Daly (N. Y.) 144; Pfeffer V. Buffalo Ry. Co., 4 Misc. Rep. (N. Y.) 465; Kinkade v. Atlantic Ave. R. Co., 9 Misc. Rep. (N. Y.) 273, affirmed 149 N. Y. 615; Schal- scha V. Third Ave. R. Co., 19 Misc. Rep. (N. Y.) 141; Schoenfeld V. Metropolitan St. Ry. Co., 40 Misc. Rep. (N. Y.) 201; Powelson v. United Traction Co., 204 Pa. 474; Shuart v. Traction Co., 15 Pa. Super. Ct. 26; McCurdy v. Traction Co., 15 Pa. Super. Ct. 29; Nor- folk & A. Terminal Co. v. Morris' Adm'x (Va.) 44 S. B. 719. 6T People's Passenger Ry. Co. v. Green, 56 Md. 84. (53) § 27 STREET RAILWAY ACCIDENT LAW. [Ch. 2 age and agility of the person making the attempt;®* and the fact that a person's movements are somewhat incumbered by packages in his hands may reasonably require more delay and care in starting the train in order to assure his safety, as in the case of aged or infirm persons.^® It is not enough, in all cases, for the conductor or driver of a street car to wait a reasonable time for a passenger to board; but if he is busy about the car or inside the car, it is his duty to look and see that all intending passengers are safely on board before starting the carJ" Thus, in Cohen V. West Chicago St. Ey. Co.'^* the court said: "The con- ductor of street cars, having the safety and even the lives of passengers in his keeping, has not discharged his whole duty to the public when he has stopped his train and wait- ed what may appear, according to his schedule, a reasonable time for passengers to embark. * * * JJe is bound to know, when he starts his car suddenly and with full force, that no person attempting to embark is r.t that moment with one foot on the platform and the other on the ground, and with his hand upon the railing, in the act of getting on board, or is otherwise in a position of danger." 68 North Chicago St. R. Co. v. Cook, 43 111. App. 634; Bertram V. People's Ry. Co., 154 Mo. 639; Shuart v. Traction Co., 15 Pa. Super. Ct. 26. 69 Steeg V. St. Paul City Ry. Co., 50 Minn. 149. '0 Cohen v. West Chicago St. Ry. Co., 60 Fed. 698 ; Dudley v. Front St. Cable Ry. Co., 73 Fed. 128 ; Post v. Hartford St Ry. Co., 72 Conn. 362; North Chicago St. R. Co. v. Cook, 14b 111. 551; Schepers v. Union Depot R. Co., 126 Mo. 665; Meriwether v. Kansas City Cable Ry. Co., 45 Mo. App. 528; Wolfkiel v. Sixth Ave. R. Co., 38 N. Y. 49; Mc- Gill v. Central Crosstown R. Co., 84 N. Y. Supp. 477. " 60 Fed. 698. (54) Ch. 2] ACCIDENTS WHILE BOARDING CAB. § 27 It is not necessary that the car be brought to an absolute standstill. If it is slowed down to such an e.stent as to con- stitute an invitation to board, it is negligence to start up again before the passenger has a chance to reach a place of safety ;^^ but in Powelson v. United Traction Co./^ and in Monroe v. Metropolitan St. Ky. Co.,''* the court held that slowing up was not an invitation to board until the car had stopped. If a car is temporarily stopped by reason of an obstruc- tion, it is for the jury to say whether the conductor should have seen a person about to board.''^^ It is not negligence, however, to start a street car before a passenger is seated,''^ although the court apparently took a different view in the case of Kinkade v. Atlantic Ave. K. Co.'^^ In Picard v. Ridge Ave. Passenger Ey. Co.'® the court said : "We would seriously inconvenience the tra-^el- ing public were we to hold that the car should come to a 72 Conner v. Citizens' St. Ry. Co., 105 Ind. 62; Citizens' St. R. Co. V. Spahr, 7 Ind. App. 23; Citizens' St. Ry. Co. v. Merl, 26 Ind. App. 284; Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; O'Mara v. St. Louis Transit Co. (Mo. App.) 76 S. W. 680; Savage v. Third Ave. R. Co., 29 App. Div. (N. Y.) 556; Wallace v. Third Ave. R. Co., 36 App. Div. (N. Y.) 57; Walters v. Philadelphia Traction Co., 161 Pa. 36. 73 204 Pa. 474. See, also, Hunterson v. Union Traction Co. (Pa.) 55 Atl. 543. 7*80 N. Y. Supp. 177. But see Mulligan v. Metropolitan St. Ry. Co., 85 N. Y. Supp. 791. « Dean v. Third Ave. R. Co., 34 App. Div. (N. Y.) 220. 76 Miller v. St. Paul City Ry. Co., 66 Minn. 192 ; Barth v. Kansas City El. Ry. Co., 142 Mo. 535; Picard v. Ridge Ave. Passenger Ry. Co., 147 Pa. 195. 77 9 Misc. Rep. (N. Y.) 273, affirmed 149 N. Y. 615. 78 147 Pa. 195. (55) § 27 STREET RAILWAY ACCIDENT LAW. [Ch. 2 dead stop until every passenger who gets on is seated. It would delay travel on street cars very seriously. Regard must be had, in all such cases, to the habits of passengers and their reasonable convenience." Where the gates on an elevated car were closed before the plaintiff could board, and she was caught and injured, this was held to be evidence of negligence.''* The company must exercise ordinary care in selecting a suitable place to stop their car for the purpose of receiving a person as a passenger, and a street car company which was liable by statute for defects arising from its negligence in the highway occupied by its tracks may be held negli- gent in removing a fence near a ditch, and thus causing in- jury to a person seeking to board the car in the dark.*" In Jackson Electric Ry., L. & P. Co. v. Lowry®^ it was held that a street railroad company owes a duty to the public to stop at its regular crossings, on a reasonable signal, to receive those desiring passage; and a rule of a street rail- road company that, where its cars stop beyond the crossing, they should not be backed to receive a person who has prop- erly signaled, is unreasonable when applied to a passenger on a rainy night, with a muddy road, the car forty feet be- yond the crossing, and the passenger having seven blocks to walk unless he got passage. It is negligence for a motorman to stop a car at a place beyond a crossing which is dangerous because of its eleva- tion, and because of the fact that there are no lights there and no fence.*^ T9 Brown v. Manhattan Ry. Co., 81 N. Y. Supp. 755. 80 Call V. Portsmouth, K. & Y. St. Ry., 69 N. H. 562. 81 79 Miss. 431. (56) Ch. 2] ACCIDENTS WHILE BOARDING CAR. § 27 Numerous rulings have been made on the question of the ■duty of those in charge of a car to come to a stop when signaled. It has been held that a passenger has a right to insist that a car shall come to a full stop when he signals at a proper place,^* and that those in charge of the car have an equal right to presume that the person signaling the car desires to have it stopped, and will not get on board while it is in motion.** On the other hand, it has been held that it is not negligence, as a matter of law, not to bring a car to a full stop before a person attempts to board,*^ since it is well recognized that it is the ordinary custom to merely slacken speed in order to take on passengers, and that this constitutes an invitation to them;** but the company will be liable if, by slowing down, it tacitly invites the passenger to board, and then injures him by starting with a sudden jerk.*'' Recent cases have held, however, that slowing down 82 Vasele v. Grant St. Electric Ry. Co., 16 Wash. 602. 83 Cicero & P. St. Ry. Co. v. Meixner, 160 111. 320; Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; Savage v. Third Ave. R. Co., 29 App. Div. (N. Y.) 556. Si Holohan v. Washington & G. R. Co., 19 D. C. 316. 85 Finkeldey v. Omnibus Cable Co., 114 Cal. 28 ; Cicero & P. St. Ry. Co. V. Meixner, 160 111. 320; Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; Moylan v. Second Ave. R. Co., 128 N. Y. 583; Savage V. Third Ave. R. Co., 29 App. Div. (N. Y.) 556. 86 Conner v. Citizens' St. Ry. Co., 105 Ind. 62; Citizens' St. R. Co. V. Spahr, 7 Ind. App. 23; Citizens' St. Ry. Co. v. Merl, 26 Ind. App. 284; Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; Savage v. Third Ave. R. Co., 29 App. Div. (N. Y.) 556. 8T Conner v. Citizens' St. Ry. Co., 105 Ind. 62; Citizens' St. R. Co. V. Spahr, 7 Ind. App. 23; Sahlgaard v. St. Paul City Ry. Co., 48 Minn. 232; O'Mara v. St. Louis Transit Co. (Mo. App.) 76 S. W. 680; Savage v. Third Ave. R. Co., 29 App. Div. (N. Y.) 556; Walters v. Philadelphia Traction Co., 161 Pa. 36. (57) § 28 STREET RAILWAY ACCIDENT LAW. [Ch. 3 in answer to a signal is not an invitation to board until the car has stopped.^^ One who signals a ear at a usual stopping place, and sees the car stop, is justified in assuming the stop is for his benefit, even though in reality the stop is to let off a passenger; and if those in charge of the car do not intend to receive him, they must give notice to that effect.8» § 28. Children. It is not the duty of the employes of a street railway company to keep a lookout to prevent boys endeavoring to ride without permission and without paying fare from en- tering its cars while in motion;^" and there was held to be no negligence on the part of the company when a boy of twelve boarded a moving train, and there was evidence that a brakeman had told him that he was young, and could run and jump on the car.^^ So, where a boy of seven unexpect- edly tried to get on the front platform of a moving car while the driver, who was also the conductor, was on the rear platform, the company was held not to be responsible.^^ Where a boy of thirteen was injured while boarding a mov ing car, there was held to be no evidence of negligence on the part of the company.®^ The act of a driver or brake- 88 Powelson v. United Traction Co., 204 Pa. 474; Hunterson v. Union Traction Co. (Pa.) 55 Atl. 543; Monroe v. Metropolitan St. Ry. Co., 80 N. Y. Supp. 177. But see Mulligan v. Metropolitan St. Ry. Co., 85 N. Y. Supp. 791. 80 Maxey v. Metropolitan St. R. Co., 95 Mo. App. 303. so Jefferson v. Birmingham R. & B. Co., 116 Ala. 294; Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494. 81 Coller V. Prankford & S. Ry. Co., 9 Wkly. Notes Cas. (Pa.) 477. 92 Hestonville Passenger Ry. Co. v. Connell, 88 Pa. 520. 93 Omaha St. Ry. Co. v. Baker, 44 Neb. 511. (58) Ch. 2] ACCIDENTS WHILE BOARDING CAR. | 29 man of a horse car in assisting a boy of eight to get on board is in the course of his employment, and the company is liable for his negligence.^* Where a car has stopped to let off a passenger, and a boy of seven attempts to board without signaling, there can be no recovery where it is not shown that the driver or conductor saw him.^^ Where a boy of thirteen signaled, and the driver slackened speed, and then started suddenly as the boy was boarding, it was held that, if the driver believed the boy was getting on the car, this was sufficient evidence of negligence.*® § 29. Miscellaneous. Where plaintiff, in boarding a car, caught his foot in an opening at the back of the step, it was held that the neg- ligence of the defendant in having an open-back step was for the jury.^^ Where a conductor sees a truck ahead of his car standing close to the track, and starts his car while a passenger is trying to board, the negligence of the con- ductor is for the jury.** Where the plaintiff, who was put- ting her daughter on the car, told the conductor that she was rot a passenger, and was injured, while alighting again, by the starting of the car, negligence of the conductor is for the jury.** Where a person put a child on a car, and there was evidence that she had done the same thing on previous 84 Drew V. Sixth Ave. R. Co., 26 N. Y. 49. 95 Pitcher v. People's St. Ry. Co., 154 Pa. 560, followed 174 Pa. 402. »6 McDonough v. Metropolitan R. Co., 137 Mass. 210. »T Boehncke v. Brooklyn City R. Co., 3 Misc. Rep. (N. Y.) 49. 88 Goldwasser v. Metropolitan St. Ry. Co., 32 Misc. Rep. (N. Y.> 682. 88 Rott V. Forty-second St. & G. St. Ferry R. Co., 56 N. Y. Super. Ct. 151. (59) § 29 STREET RAILWAY ACCIDENT LAW [Ch. 2 oceasionSj a nonsuit was held to be error.^'"' Where the conductor shut the gate while the plaintiff was boarding, and caught his hand so that he was crushed to death, defendant's negligence is for the jury.^"^ Whether the absence of the wheel guards required by a city ordinance on a street car is negligence is a question for the jury.-^"^ Even if the plaintiff has been negligent, he may nevertheless recover if the company, by the exercise of due care, could have pre-[ vented the accident.-'"^ The fact that a starting signal was given by an unauthoriz- ed person will not exempt the company from liability if the conductor, by the exercise of due care, could have prevented the moving of the car.^"* Where the conductor of a crowd- ed car remained inside, and started the car, on the informa- tion of a passenger on the back platform, while a passenger was trying to board, the question of negligence was held to be for the jury.^"^ The fact that the conductor of a street car is inside the car when it has slowed up at a street crossing to permit a passenger to board is no evidence of negligence on the part of the railroad company;'"" and it is not negligence not to 100 Houston V. Gate City St. R. Co., 89 Ga. 272. 101 Bricius v. Brooklyn Heights R. Co., 63 App. Div. (N. Y.) 353. 102 Finlteldey v. Omnibus Cable Co., 114 Cal. 28. 103 Central Passenger Ry. Co. -m. Rose, 15 Ky. Law Rep. 209 ; Balti- more Traction Co. v. State, 78 Md. 409; Omaha St. Ry. Co. v. Martin, 48 Neb. 65; Christie v. Galveston City R. Co. (Tex. Civ. App.) 39 S. W. 638; Reynolds v. Richmond & M. Ry. Co., 92 Va. 400; Wood- ard V. West Side St. Ry. Co., 71 Wis. 625. 104 North Chicago St. R. Co. v. Cook, 145 111. 551. 105 McCurdy v. Traction Co., 15 Pa. Super. Ct. 29. 106 picard v. Ridge Ave. Passenger Ry. Co., 147 Pa. 195. (60) Ch. 2] ACCIDENTS WHILE BOARDING CAR. § 29 have a conductor on a one-horse car.i"^ A conductor is not necessary as a matter of law, but his absence may be con- sidered by the jury as a fact bearing on the question of neg- ligence.-"'* There is no negligence on' the part of the company m a slight movement of the car while the plaintiff is in the act of boarding ;^"^ and in Stager v. Eidge Ave. Passenger Ey. Co."" it was held that there was no presumption of negli- gence from the mere happening of the accident, and that negligence could not be proved by mere conjecture as to how the accident happened. Where a passenger received an electric shock as he took hold of the rail to board a car, this was held to raise a pre- sumption of negligence.^ ^^ Where a passenger was injured by a brake becoming unfastened in some unexplained man- ner while a crowd was boarding a car, there was held to be no evidence of negligence.^^^ Mere proof that a passenger was injured by a banana peel on the stairway of an elevated station raises no presumption of negligence, and no recov- ery can be had.^-** An act relative to riding on the front platform does not apply to a person using the front plat- form as a means of entering the car.-'-'* In an action against lOTLamline v. Houston, W. St. & P. Ferry R. Co., 14 Daly (N. Y.) 144; Hestonville Passenger Ry. Co. v. Connell, 88 Pa. 520. 108 Ganiard v. Rochester City & B. R. Co., 50 Hun (N. Y.) 22. 109 Weber v. New Orleans & 0. R. Co., 104 La. 367; Sclimeltzer V. St. Paul City Ry. Co., 80 Minn. 50. "0 119 Pa. 70. * 111 Dallas Consol. Electric St. Ry. Co. v. Broadhurst (Tex. Civ. App.) 68 S. W. 315. 112 Holt V. Southwest Electric Ry. Co., 84 Mo. App. 443. 113 Benson v. Manhattan Ry. Co., 31 Misc. Rep. (N. Y.) 723. 114 Morris v. Eighth Ave. R. Co., 68 Hun (N. Y.) 39. (61) §29 STREET RAILWAY ACCIDENT LAW. [Ch. 2 a street railway company for the negligence of a servant, the test of the company's liability is whether the servant was engaged in the company's business, and was acting within the scope of his employment.^ -"^ Where a passenger on an ■elevated station platform at night slipped into an opening between two cars, negligence was held to be for the jury,^^® but where a passenger was injured by a swinging door in an elevated station, there was held to be no negligence.-' -"^ Where a person was injured by a runaway while attempting to board, there was held to be no evidence of negligence.-'^* Where a car stopped at a platform built by a third party the company was held liable.^^® "B Lima R. Co. v. Little, 67 Ohio St. 91. 116 Lake St. El. R. Co. v. Burgess, 200 111. 628. 11- Pahner v. Brooklyn Heights R. Co., 86 App. Div. (N. Y.) 488. lis South Side Passenger Ry. Co. v. Trich, 117 Pa. 390. 119 Leveret v. Shreveport Belt Ry. Co. (La.) 34 So. 579. (62) CHAPTER III. ACCIDENTS WHILE ON CAR. I. Unusuai Conduct or Passenqee. § 30. Riding on Front Platform — Due Care in General a Ques- tion of Pact. 31. Same — Consent of Tliose in Charge of the Car. 32. Same — Position on Platform. 33. Same — Intoxication. 34. Same — Cliildren. 35. Riding on Rear Platform. 36. Riding on Step of Car. , 37. Riding on Running Board. 38. Standing in Car. 39. Riding on Bumper. 40. Preparatory to Alighting. 41. Changing Position on Car. 42. Catching Dress. 43. Falling from Car. 44. Tripping in Car. 45. Putting Arm Outside Car 46. Transferring. II. Unusual Conduct op Compant. § 47. Care Required of Company. 48. Running Cars on Sunday. 49. Crowding Cars. BO. Condition of Car. 51. Injury by Fellow Passenger. 52. Derailment. 53. Collision Between Two Street Cars. 54. Collision Between Street Car and Wagon, 55. Collision Between Street Car and Steam Railroad. 66. Jerk. 57. Speed of Car. 58. Miscellaneous Negligence in Operation. (63) § 30 STREET RAILWAY ACCIDENT LAW. [Ch. 3 I. Unusual Conduct of Passenger. It is not lack of due care, as a matter of law, to ride upon the front or rear platform, steps, or running board of a street car. Each case must he determined according to its own cir- cumstances, and important considerations are the consent of those in charge of the car, the crowded condition of the car, the age and physical condition of the passenger, whether he was holding onto anything, and the condition of the street. Similarly, to stand in a car or to take a position on the platform, steps, or running board preparatory to alighting while the car is still in motion, or to change one's position on a car, is not lack of due care as a matter of law, but de- pends on the individual circumstances of each particular case; and the rule holds good in cases of a passenger falling from a car, tripping or catching dress in a car, putting his arm out- side the window of a car, and transferring from one car to another. § 30. Riding on front platform — Due care in general a ques- tion of fact. It is not lack of due care, as a matter of law, to ride upon the front platform of a horse car,^ an electric car,^ a cable 1 Augusta & S. R. Co. v. Renz, 55 Ga. 126; Meesel v. Lynn & B. R. Co., 8 Allen (Mass.) 234; Maguire v. Middlesex R. Co., 115 Mass. 239; Upham V. Detroit City Ry. Co., 85 Mich. 12; Archer v. Ft. Wayne & E. Ry. Co., 87 Mich. 101; Burns v. Bellefontaine Ry. Co., 50 Mo. 139; Ginna v. Second Ave. R. Co., 67 N. Y. 596; Nolan v. Brooklyn City & N. R. Co., 87 N. Y. 63; Vail v. Broadway R. Co., 147 N. Y. 377; Cattano v. Metropolitan St. R. Co., 173 N. Y. 565; Hastings v. Central Crosstown R. Co., 7 App. Div. (N. Y.) 312; Bradley v. Sec- ond Ave. R. Co., 34 App. Div. (N. Y.) 284; Cassidy v. Atlantic Ave. R. Co., 9 Misc. Rep. (N. Y.) 275; Seelig v. Metropolitan St. Ry. Co., 18 Misc. Rep. (N. Y.) 383; Hadencamp v. Second Ave. R. Co., 31 N. Y. Super Ct. 490; Ward v. Central Park, N. & E. R. R. Co., 33 N. Y. Super. Ct. 392; Schneider v. Second Ave. R. Co., 59 N. Y. Super. Ct. 536; Hourney v. Brooklyn City R. Co., 7 N. Y. Supp. 602; Sand- ford V. Hestonville, M. & F. P. R. Co., 136 Pa. 84. (64) Ch. 3] ACCIDENTS WHILE ON CAR. g 30 car,* an elevated car,* or a car on a dummy line,^ to sit on the front platform of an electric car/ or to sit on the out- side seat of the "dummy" on a cable line.'' In Meesel v. Lynn & B. E. Co.® the court said: "The seats inside the car are not the only places where the man- agers of the train expect passengers to remain; but it is notorious that they stop habitually to receive passengers to stand inside till the car is full, and then to stand upon the platforms till they are full, and continue to stop and re- ceive them even after there is no place for them to stand except on the steps of the platforms. !N"either the officers. of these corporations nor the managers of the cars nor the traveling public seem to regard this practice as hazardous, nor does experience thus far seem to require that it should be restrained upon the ground of its danger. There is, there- fore, no basis upon v^hich the court can decide, upon the evidence reported, that the plaintifE did not use ordinary 2 Watson V. Portland & C. E. Ry. Co., 91 Me. 584; Beal v. Lowell & D. St. Ry. Co., 157 Mass. 444; Sweetland v. Lynn & B. R. Co., 177 Mass. 574; East Omalia St. Ry. Co. v. Godola, 50 Neb. 906; Fran- cisco V. Troy & L. R. Co., 88 Hun (N. Y.) 464; Taft v. Brooklyn Heights R. Co., 14 Misc. Rep. (N. Y. ) 390; Bailey v. Tacoma Trac- tion Co., 16 Wash. 48. 3 Adams v. Washington & G. R. Co., 9 App. D. C. 26; Chicago West Div. Ry. Co. v. Klauber, 9 111. App. 613; Muldqon v. Seattle City Ry. Co., 7 Wash. 528. 4 Graham v. Manhattan Ry. Co., 149 N. Y. 336; Merwin v. Man- hattan Ry. Co., 48 Hun (N. Y.) 608. 5 Highland Ave. & B. R. Co. v. Donovan, 94 Ala. 299. sHolloway v. Pasadena & P. Ry. Co., 130 Cal. 177; Denver & B. P. Rapid Transit Co. v. Dwyer, 20 Colo. 132; Seller v. Market St. Ry. Co. (Cal.) 72 Pac. 1006. 7 Hawkins v. Front St. Cable Ry. Co., 3 Wash. 592. 8 8 Allen (Mass.) 234. (65) Ry. Ace. — 5. §30 STREET RAILWAY ACCIDENT LAW. [Ch. 3 It is evident that riding upon the platforms of steam rail- roads is more dangerous than riding upon the platforms of street cars, and the rules in force in the former cases do not apply to the latter.* The question as to whether a different rule as to riding upon the front platform should be applied in the case of a horse car and an electric ear, a horse car and a cable car, and a cable car and an electric car has been squarely met and discussed. In Watson v. Portland & C. E. Ey. Co.*" the court, after stating that the rule that riding on the front platform of a horse car is not lack of due care as a matter of law was not questioned, said: "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 gen- erally with respect to trains of cars upon steam railroads, .should apply. We do not think so. An electric street car is still a street car, and, in our opinion, the conditions, es- pecially with respect to riding upon platforms, are more similar to those of the horse street car than those of a rail- road train upon a steam railroad." In Muldoon v. Seattle City Ey. Co.-'-' the court said: "The nonsuit asked by appellant was properly refused. We do not think it can be said that it is negligence per se for a passenger to stand upon the front platform of the trail car in a moving cable train, in the absence of any rule of the company against it, and where it has been the custom «Upliam V. Detroit City Ry. Co., 85 Mich. 12; Vail v. Broadway R. Co., 147 N. Y. 377. 10 91 Me. 584. 11 7 Wash. 528. (66) Ch. 3] ACCIDENTS WHILE ON CAR. § 31 for passengers to occupy that position. Doubtless there is more liability that accidents will occur where a car is pro- pelled by cable than where horses are used, but common ex- perience has not discriminated between the two to the ex- tent of changing the rule of law. In most cases of this class the question of contributory negligence is one for the jury." In Bailey v. Tacoma Traction Co.^^ the court said : "And it may be well said here that common experience has not discriminated between a car propelled by a cable and one propelled by electricity to the extent of changing the rule; for while it is probably a fact that electric cars are run at a greater rate of speed than cable cars, yet we think experi- ence shows that accidents are as frequent upon the cable cars as upon the electric cars, owing, probably, to the lack of the facilities to easily control the cable cars which exist on the electric cars." The provisions of the general railroad act in 'New York as to riding on the front platform do not apply to street rail- roads.** § 31. Same — Consent of those in charge of the car. The consent of those in charge of the car, express or im- plied, is perhaps the most imj^ortant consideration in de- termining the question of a passenger's due care in riding upon the front platform. Thus it has been held that it is not lack of due care, as a matter of law, for a passenger to stand upon the front platform of a crowded street car when his fare was taken,** or when no objection was made,*® or 12 16 Wash. 48 13 Vail V. Broadway R. Co., 147 N. Y. 377; Lax T. Forty-Second & G. St. Perry R. Co., 46 N. Y. Super. Ct. 448. "Highland Ave. & B. R. Co. v. Donovan, 94 Ala. 299; Ginna v. (67) i § 31 STREET RAILWAY ACCIDENT LAW. [Ch. 3 to sit upon the front platform of a crowded street car with- out objection from those in charge.^® "Where there is no evidence as to whether the car was crowded or not, it is not lack of due care, as a matter of law, to stand upon the front platform when fare is collected,^ '^ or no objection is made;^* and even if it appears that there was plenty of room inside the car, a passenger cannot be deemed guilty of lack of due care when he stands upon the front platform, and fare is collected of him,^® or no objection is made to his so riding.^" Even if there is a rule prohibiting riding on the front plat- form, taking fare from a passenger has been held to be a waiver of the rule,^^ and under such circumstances a con- ductor must return the passenger's fare before he is entitled to eject him for not complying with the rule of the com- pany."- In lladencamp v. Second Ave. E. Co.^* the court said: "But aside from this, even if the court must shut its eyes to Sacon:! Ave. R. Co., 67 N. Y. 596; Graham v. Manhattan Ry. Co., 149 N. Y. 336; Merwin v. Manhattan Ry. Co., 48 Hun (N. Y.) 608; Had- encamp v. Second Ave. R. Co., 31 N. Y. Super. Ct. 490; McCaw v. Union Traction Co. (Pa.) 54 Atl. 893. 15 Adams v. Washington & G. R. Co., 9 App. D. C. 26; Augusta & S. R. Co. V. Renz, 55 Ga. 126; Archer v. Ft. Wayne & E. Ry. Co., 87 Mich. 101; East Omaha St. Ry. Co. v. Godola, 50 Neb. 906. 16 Holloway v. Pasadena & P. Ry. Co., 130 Cal. 177. 17 Bailey v. Tacoma Traction Co., 16 Wash. 48. 18 Muldoon V. Seattle City Ry. Co., 7 Wash. 528. 10 Nolan v. Brooklyn City & N. R. Co., 87 N. Y. 63. 2oMaguire v. Middlesex R. Co., 115 Mass. 239; TJpham v. Detroit City Ry. Co., 85 Mich. 12; Burns v. Belief ontalne Ry. Co., 50 Mo. 139. 21 Highland Ave. & B. R. Co. v. Donovan, 94 Ala. 299; Hadencamp V. Second Ave. R. Co., 31 N. Y. Super. Ct. 490. 22 Hanna v. Nassau Electric R. Co., 18 App. Div. (N. Y.) 137. 23 31 N. Y. Super. Ct. 490. (68) Ch. 3] ACCID3NTS VmiLE ON CAR. | 31 the open, constant, evcry-day practice of the employes of street railways theniseh-cs in disregarding such notices, there is abundant evidence in this case that the emijloyes of the defendant company do constantly and habitually disregard and disobey this notice, and so do with the consent and ap- parent encouragement of the company itself. * * * Surely they cannot complain if the court and jury construe their rules and notices in the same manner and meaning that their own officers and employes habitually do ; nor can they expect the court to enforce rules which they habitually ilisregard in their own interest, and seek to enforce only AvJien they could thereby shield themselves from liability. This would seem to be sufficient grounds upon which to sus- tain the ruling of the judge on circuit. But I am prepared to go further, and hold that, when a common carrier of pas- sengers, by himself or his manager or conductor, accepts a person as a passenger, and receives from such person the full and established fare, without any restriction in the con- tract itself as to mode or place of carriage, he is bound to furnish such passenger with a safe and comfortable vehicle, and a safe and comfortable place or position in it or on it, and so to transport that passenger that he shall not sus- tain injury from any fault or neglect of the carrier, any rule, notice, or regulation of the carrier to the contrary notwith- standing, and is responsible for any injury the passenger may sustain by the fault or neglect of the carrier ; provided, always, the passenger shall occupy as safe a place as he can, and conduct himself with proper care in the place where he is." It has further been held that a rule prohibiting smoking except on the front platform might well be deemed to be a (69) §31 STREET RAILWAY ACCIDENT LAW. [Ch. 3 ^vaiver of a rnle forbidding riding on the front platform,^* and that a notice forbidding riding on the front platform might well be waived by permitting passengers to so ride, without objection, and that the question of such waiver vvao rightly left to the jury.^° The presence of other passengers on the platform is not enough to show a waiver.^® Of course, on the other hand, where a passenger rides on the front platform, with the knowledge of the conductor, according to custom, this will not justify an instruction that he is not gTiilty of lack of due care as a matter of law.^^ While it is held that riding upon the front platform is not lack of due care as matter of law, the custom of the street railway company in allowing passengers to ride in this manner is one circumstance to be considered.^* Thus, where it appears that the company permitted smoking upon the front platform, it v/as held that riding there on a slip- pery day when snow had been falling was not lack of due care as a matter of law;^® and the custom of requiring pas- sengers to smoke on the front platform has been held to be an express permission to allow them to so ride.*" Of course, where a passenger is directed to ride upon the front platform by an employe in charge of the car, there is still stronger reason for holding that he is not guilty of lack of due care as a matter of law than when he is merely permitted to ride in this manner. Such a holding has 24 Vail V. Broadway R. Co., 147 N. Y. 377. 25 Sweetland v. Lynn & B. R. Co., 177 Mass. 574. 26 Burns v. Boston El. Ry. Co. (Mass.) 66 N. E. 418. 27 Chicago West Dlv. Ry. Co. v. Klauber, 9 111. App. 613. 28 Muldoon V. Seattle City Ry. Co., 7 Wash. 528. 29 Bradley v. Second Ave. R. Co., 34 App. Dlv. (N. Y.) 284. 30 Nolan V. Brooklyn City & N. R. Co., 87 N. Y. 63. (70) Ch. 3] ACCIDENTS WHILE ON CAR. § 31 been made where a passenger was directed to go upon the front platform simply because the car was fuU,^^ where a passenger was directed to go upon the front platform to smoke,^^ and where one was directed to go upon the front platform because he was incumbered with bundles.^* On the other hand, a rule forbidding passengers to ride on the front platform,^* a rule forbidding passengers to ride on the front platform if there is room inside,^ ^ and a notice forbidding riding on the front platform^" are all reason- able, and a passenger cannot complain of the enforcement of such a reasonable rule unless he shows some good reason for its suspension.^^ Thus, where a passenger sat on the front platform of a moving horse car with his feet on the steps, against the rule of the corporation and the warning of the driver of the car, without any reasonable excuse there- for, he was held not to be in the exercise of due care.^* A rule prohibiting drivers from letting intoxicated persons ride on the front platform has also been held to be reasonable.^'* A passenger who could read, but did not read a plainly posted notice forbidding riding on the front platform, was 31 Meesel v. Lynn & B. R. Co., 8 Alien (Mass.) 234. 32 Francisco v. Troy & L. R. Co., 88 Hun (N. Y.) 464; Hastings v. Central Crosstown R. Co., 7 App. Div. (N. Y.) 312; Seelig v. Met- ropolitan St. Ry. Co., 18 Misc. Rep. (N. Y.) 383. 33 Schneider v. Second Ave. R. Co., 59 N. Y. Super. Ct. 536. 34 Wills V. Lynn & B. R. Co., 129 Mass. 351. 35 McMillan v. Federal St. & P. V. P. Ry. Co., 172 Pa. 523. 88 Baltimore & Y. Turnpike Road v. Cason, 72 Md. 377; O'Neill v. Lynn & B. R. Co., 155 Mass. 371; Burns v. Boston Bl. Ry. Co. (Mass.) 66 N. E. 418. ST McMillan v. Federal St. & P. V. P. Ry. Co., 172 Pa. 523. 38 Wills V. Lynn & B. R. Co., 129 Mass. 351. 38 O'Neill v. Lynn & B. R. Co., 155 Mass. 371. (71) I 32 STREET RAILWAY ACCIDENT LAW. [Ch. 3 held bound to know the notice.'*" In a very recent case it was held that knowledge of a notice that passengers riding on the front platform did so at their own risk barred recov- ery;*' but a boy of ten is not precluded from recovery, even if he knew of a notice forbidding riding on the front plat- form.*^ § 32. Same — Position on platform. Whether or not the plaintiff was holding onto anything at the time of the accident is another circumstance to be con- sidered as bearing upon the question of his due care. Thus, due care has been held to be for the jury where a passenger was holding onto the railing with both hands,** and where a passenger had both hands in his pockets on a cold night.** It is not lack of due care, as a matter of law, to omit to take hold of an iron bar to prevent being thrown from the platform.*^ Where a passenger knew that the street was in bad condition, and held onto the railing, but let go in ■order to pay the conductor his fare, due care was held to be for the jury;*® but where a passenger knew that the •street was in bad condition, and stood on the very edge of the front platform without holding onto anything, he was held guilty of lack of due care as a matter of law.*'^ It is *o Baltimore & Y. Turnpike Road v. Cason, 72 Md. 377. •41 Burns v. Boston El. Ry. Co. (Mass.) 66 N. B. 418. 42 Brennan v. Fair Haven & W. R. Co., 45 Conn. 284. 43 Francisco v. Troy & L. R. Co., 88 Hun (N. Y.) 464. *4 Adams v. Washington & G. R. Co., 9 App. D. C. 26. *5Kean v. West Chicago St. R. Co., 75 111. App. 38; Ginna v. Sec- ond Ave. R. Co., 67 N. Y. 596; Cornish v. Toronto St. Ry. Co., 23 U. C. C. P. 355. 48 Hastings v. Central Crosstown R. Co., 7 App. DIv. (N. Y.) 312. « Ward V. Central Park, N. & B. R. R. Co., 33 N. Y. Super~T!t~S92 (72) Ch. 3] ACCIDENTS WHILE ON CAR. K 33 not lack of due care for a passenger to give up his seat on the front platform to a lady, and remain standing there.^^ Where the only passenger on a horse car rode on the dri\'- €r's high stool on the front platform without invitation froni the driver, it was held that he was guilty of lack of due care as matter of law.^® On the other hand, in Bailey v. Tacoma Traction Co.,^" where riding on the driver's stool was cus- tomary, and the conductor collected fares from passengers so riding, it was held not to be lack of due care to so ride ; but it is lack of due care for a passenger to sit on the driv- ing bar on a street car when there is room inside the car, although he is invited to do so by the driver.^^ Where a passenger left his seat, where he was protected by a wire screen, rushed to the front platform at night, and leaned out to see a fire, and was struck by a tree five or six inches from a car, he was held not to be in the exer- cise of due care.^^ Where a boy of thirteen sat on the front platform with his knees projecting, so that he was struck by a mortar box standing near the track, it was held that a compulsory nonsuit was properly entered.^^ It is well settled that a passenger riding upon the front platform assumes the risk of the ordinary dangers incident to such a position,^* as, for instance, an increase in speed caused by the driver's whipping up his horses,^^ or the jolt- 48 still V. Nassau Electric R. Co., 32 App. Div. (N. Y.) 276. « Mann v. Philadelphia Traction Co., 175 Pa. 122. 60 16 Wash. 48. 51 Downey v. Hendrie, 46 Mich. 498. 52 Sias V. Rochester Ry. Co., 18 App. Div. (N. Y.) 506. 03 Butler v. Pittsburgh & B. P. Ry. Co., 139 Pa. 195. 5i Lax V. Forty-Second & G. St. Ferry R. Co., 46 N. Y. Super. Ct. 448. 55 Cassidy v. Atlantic Ave. R. Co., 9 Mi£>c. Rep. (N, Y.) 275. (73) §33 STREETT RAILWAY ACCIDENT LAW. [Ch. 3 ing or swaying of the car,^* but he does not assume an un- usual risk from the negligence of those in charge of the car.^'^ It cannot be said that a passenger riding on the front plat- form does not assume any increased risk as a matter of law.*^^ It is lack of due care, as a matter of law, for a passenger to get upon the front platform of a street car on a very stormy night, when the platform is so crowded that he can- not ride in safety.^* It must be remembered, however, that, when the company allows the front platform to be crowded, it must assume the duty of using greater care than usual f^ and the jury is warranted in finding negligence where a car went around a curve at such speed that a passenger's hands were wrenched from the rail to which he was holding, and he was thrown from the car.®" Where a horse fell from neg- ligent driving, and in getting up kicked a passenger standing on the front platform, there was held to be no causal connec- tion.«»^ § 33. Same — Intoxication. The mere fact that a passenger was intoxicated at the time of the accident will not prevent his maintaining an 66 Moser v. South Covington & C. St. Ry. Co. (Ky.) 74 S. W. 1090; Watson v. Portland & C. B. Ry. Co., 91 Me. 584; Baltimore & Y. Turnpike Road v. Cason, 72 Md. 377. 67 Graham v. Manhattan Ry. Co., 149 N. Y. 336. 67aZimmer v. Fox River Valley Elec. Ry. Co. (Wis.) 95 N. W. 957. 68Tregear v. Dry Dock, E. B. & B. R. Co., 14 Abb. Pr. (N. S.; N. Y.) 49. 59 Archer v. Ft. Wayne & E. Ry. Co., 87 Mich. 101; Sandford v. Hestonville, M. & P. P. R. Co., 136 Pa. 84. 60 Lucas V. Metropolitan St. Ry. Co., 56 App. Div. (N. Y.) 405. 60a Roedecker v. Metropolitan St. Ry. Co., 84 N. Y. Supp 300 (74) Ch. 3] ACCIDENTS WHILE ON CAR. g 34 action for being thrown from the front platform of a horse car, unless his intoxication contributed to the injury." But where there was evidence that the plaintiff was drunk at the time of the accident, and had been in that condition for the preceding twenty-four hours ; that he had no recollection of taking the car, or of any of the facts connected with the acci- dent, and first came to a realization of his injuries at the hospital; that, shortly before the accident, he was standing on the front platform, with his hands on the gUard rail, and his body swaying back and forth ; that the rate of speed was moderate, being four miles an hour; and that, although the up and down motion of the car was such, at the time the plaintiff went off, as to throw another passenger towards the driver, his face striking the driver's shoulder, there was no evidence of any defect in the rails or in the roadbed, — it was held that the jury would not have been warranted in finding that the plaintiff exercised due care, or that his in- toxication did not contribute to the injury.^^ § 34. Same — Children. The age and capacity of a child must be taken into ac- count in determining the question of his due care f^ and whether a child is guilty of lack of due care in riding on the front platfo^. ^ of a street car is generally a question for 61 Adams v. Washington & G. R. Co., 9 App. D. C. 26; Maguire v. Middlesex R. Co., 115 Mass. 239. 62 Holland v. West End St. Ry. Co., 155 Mass. 387. eswynn v. City & Suburban Ry. Co., 91 Ga. 344; East Saginaw City Ry. Co. v. Bohn, 27 Mich. 503; Connolly v. Knickerbocker Ice Co., 114 N. Y. 104; Crissey v. Hestonville, M. & F. P. Ry. Co., 75 Pa. 83; Sandford v. Hestonville, M. & F. P. R. Co., 136 Pa. 84. (75) 4. § 34 STREET RAILWAY ACCIDENT LAW. [Ch. 3 the jury.^* ]!Tegligence cannot be imputed to a child of five.*^^ It has been held that riding upon the front plat- form is prima facie evidence of lack of due care, and that the presumption is not rebutted when it appears that a boy of nine sat upon the front platform.®^ Where a boy of thirteen sat on the frorit platform with his knees projecting, so that he was struck by a mortar box standing near the track, it was held that a compulsory nonsuit was properly f entered;*'^ but the due care of a boy of thirteen sitting on the front platform with his feet on the steps, and injured by a collision with a wagon, has been held to be for the jury."''^ In an action against a defendant other than the street rail- way company, it has been held that the due care of a boy of seven is for the jury, although there is a municipal ordinance forbidding riding on the front platform.®* The duty of the carrier towards children is even greater than towards other passengers;®^ and it is generally held to be negligence to allow children to ride upon the front plat- form, if those in charge of the car knew of it, or, in the ex- 64 Bvansville St. Ry. Co. v. Meadows, 13 Ind. App. 155; Wynn v. City & Suburban Ry. Co., 91 Ga. 344; Wilton v. Middlesex R. Co., 125 Mass. 130; Crissey v. Hestonville, M. & F. P. Ry. Co., 75 Pa. 83. 65 Pittsburg, A. & M. P. Ry. Co. v. Caldwell, 74 Pa. 421; Levin v. Second Ave. Traction Co., 194 Pa. 156. 66 Solomon v. Central Park, N. & E. R. R. Co., 31 N. Y. Super. Ct. 298. 67 Butler V. Pittsburgh & B. P. Ry. Co., 139 Pa. 195. 67a Seller v. Market St. Ry. Co. (Cal.) 72 Pac. 1006. 68 Connolly v. Knickerbocker Ice Co., 114 N. Y. 104. 69 Wynn v. City & Suburban Ry. Co., 91 Ga. 344; Sheridan v. Brooklyn City & N. R. Co., 36 N. Y.' 39; Pittsburg, A. & M. P. Ry. Co. V. Caldwell, 74 Pa. 421. (76) Ch. 3] ACCIDENTS WHILE ON CAR. 8 35 ercise of due care, should have known of it.'"* In other cases the negligence of those in charge of the car, under these circumstances, was held to be a question for the jury.'^^ The company has been held guilty of negligence where a driver left the platform while a boy of nine was riding there, '^^ and where those in charge of a car made a boy of nine stand on the front platform of a crowded car, and he was pushed off by a passenger alighting.^^ § 35. Eiding on rear platform. A passenger riding on the rear platform is governed by much the same rules as one riding on the front platform, and riding on the rear platform of a horse car'^* or an elec- tric car'^^ is not lack of due care as a matter of law; but it has been held that riding on the platform outside the city 70 Saare v. Union Ry. Co., 20 Mo. App. 211; Danbeck v. New Jer- sey Traction Co., 57 N. J. Law, 463; Pittsburg, A. & M. P. Ry. Co. V. Caldwell, 74 Pa. 421; Philadelphia City Passenger Ry. Co. v. Has- sard, 75 Pa. 367; Levin v. Second Ave. Traction Co., 194 Pa. 156, 201 Pa. 58. TiWynn v. City & Suburban Ry. Co., 91 Ga. 344; East Saginaw City Ry. Co. v. Bohn, 27 Mich. 503; Buck v. People's St. Ry., E. L. & P. Co., 46 Mo. App. 555; Jensen v. Barbour, 15 Mont. 582; Crissey V. Hestonville, M. & P. P. Ry. Co., 75 Pa. 83. 72 Metropolitan St. R. Co. v. Moore, 83 Ga. 453. 73 Sheridan v. Brooklyn City & N. R. Co., 36 N. Y. 39. 74 Seigel V. Bisen, 41 Cal. 109; Metropolitan R. Co. v. Snashall, 3 App. D. C. 420; Fleck v. Union Ry. Co., 134 Mass. 480; Matz v. St. Paul City Ry. Co., 52 Minn. 159; Hunt v. Missouri R. Co., 14 Mo. App. 160; Dickson v. Ridge Ave. Passenger Ry. Co., 19 Phila. (Pa.) 430. 75 Marion St. R. Co. v. Shaffer, 9 Ind. App. 486; Terre Haute Elec- tric Ry. Co. V. Lauer, 21 Ind. App. 466; Sutherland v. Standard L. & A. Ins. Co., 87 Iowa, 505. (77) § 35 STREET RAILWAY ACCIDENT LAW. [Ch. 3 limits is governed by the same rules as in the case of steam railroads, and is lack of due careJ® The consent of those in charge of the car, and the crowd- ed condition of the car, are two very important facts to be considered. It is not lack of due care to ride upon the rear platform of a crowded street car without objection from those in charge of the car;''^ or when there is no evidence as to the crowded condition of the car, but the conductor allowed the passenger to ride, and there was not shown to be any rule forbidding it.'* When there is plenty of room inside a car, the authorities are in conflict. It has been held that, on the one hand, riding on the rear platform under these conditions is not lack of due care, at least in the ab- sence of any rule forbidding it,^* and, on the other, that the rear platform of an electric car is a place of known dan- ger, and that, if a passenger who could have found a seat iiiiide the car is injured while riding there, he is guilty of contributory negligence, and cannot recover for injuries aris- ing from a collision caused by the negligence of the com- pany.*" A rule forbidding passengers to ride on the rear platform is .■>. reasonible one,*-* and a passenger runs the risk of the ordinary dangers incidental to such a position, 76 Cincinnati, L. & A. Electric St. R. Co. v. Lohe (Ohio) 67 N. E. 161. 77 Metropolitan R. Co. v. Snashall, 3 App. D. C. 420; Reber v. Pitts- burg & B. Traction Co., 179 Pa. 339. 78 Cincinnati Omnibus Co. v. Kuhnell, 11 Wkly. Law Bui. (Ohio) 189. 79 Matz v. St. Paul City Ry. Co., 52 Minn. 159. 80 Thane v. Scranton Traction Co., 191 Pa. 249. 81 Ft. Clark St. R. Co. v. Bbaugh, 49 111. App. 582. OS) Ch. 3] ACCIDENTS WHILE ON CAR. g 35 such as rounding a curve at ordinary speed,^^ or a slight jerk.^* It is the duty of passengers to follow the reasonable in- structions of those in charge of the car, and a request to give up seats to lady passengers is not unreasonable.** Omitting to take hold of the rail on the rear platform is not of itself lack of due care.*^ The negligence of a street railway company in not pro- viding guards of sufficient height to prevent passengers from falling from the rear platform has been held to be a ques- tion for the jury;*^ and where both platforms were filled to their utmost capacity, it was held that the negligence of the company both as to the condition of the platform and the permitting such a large number of passengers to ride was for the jury.*'' Where a contractor allowed a derrick rope to hang too low, and a horse car was negligently driven into it, both the contractor and the company were held lia- ble ;** and it is negligence for a conductor to bring a woman out onto the rear platform when the truck of a hook and lad- der company is rapidly approaching.*^ Where a boy of eight rode on the rear platform with his feet on the step, it was held that his due care and the negligence of the com- 82 Andrews v. Capitol, N. 0. St. & S. W. R. Co., 2 Mackey (D. C.) 137. 83 Byron v. Lynn & B. R. Co., 177 Mass. 303; Timms v. Old Colony St. Ry. Co. (Mass.) 66 N. E. 797. 84 Terre Haute Electric Ry. Co. v. Lauer, 21 Ind. App. 466. 85 North Chicago St. R. Co. v. Baur, 179 111. 126; Fleck v. Union Ry. Co., 134 Mass. 480; Matz v. St. Paul City Ry. Co., 52 Minn. 159. 86 Matz V. St. Paul City Ry. Co., 52 Minn. 159. 87 N orris v. Brooklyn City R. Co., 4 Misc. Rep. (N. Y.) 294. 88 Hunt V. Missouri R. Co., 14 Mo. App. 160. 80 Maverick v. Eighth Ave. R. Co., 36 N. Y. 378. (79) § 36 STREET RAILWAY ACCIDENT LAW. [Ch. S pany were questions for the jury.^* Electric cars occupy a position midway between steam cars and horse cars, and their great speed causes increased danger.^^ Whether in- toxication contributed to the accident is a question for the jury.82 § 36. Riding on step of car. As in the case of riding upon the front or rear platform of a street car, it cannot be said, as matter of law, that riding upon the steps of a street car is of itself lack of due care. This is so, whether the car is a horse car"^ or an electric car,^* although it has been held that, in the absence of ex- planation, riding upon the steps of the front platform of a horse ear is prima facie evidence of negligence.®^ A pas- senger who rides upon the step of the front platform of a crowded horse car with the assent of the conductor or driver is not guilty of lack of due care as matter of law;"** and the same ruling has been made in the case of an electric car."^ 80 Jackson v. St. Paul City Ry. Co., 74 Minn. 48. 91 Thane v. Scranton Traction Co., 191 Pa. 249 ; Reber v. Pitts- burg & B. Traction Co., 179 Pa. 339. p^ Donoho V. Metropolitan St. Ry. Co., 30 Misc. Rep. (N. Y.) 433. "•'' Huelsenkamp v. Citizens' Ry. Co., 37 Mo. 537; Seymour v. Citl- zctis' Ry. Co., 114 Mo. 266; Lehr v. Steinway & H. P. R. Co., 118 :>■. Y. 55G; Saltzman v. Brooklyn City R. Co., 73 Hun (N. Y.) 567; Geimantown Passenger Ry. Co. v. Walling, 97 Pa. 05; West Phila- do'.pliia Passenger Ry. Co. v. Gallagher, 108 Pa. 524. »■' Y\'ilcle V. Lynn & B. R. Co., 163 Mass. 533; Pray v. Omaha St. Ry. Co., 44 Neb. 167; Schaefer v. Union Ry. Co., 29 App. Div. (X. Y.) 261; Schwartz v. Cincinnati St. Ry. Co., 1 Ohio Dec. 197. »» Ashbrook v. Frederick Ave. Ry. Co., 18 Mo. App. 2'^"; Pray v. Omaha St. Ry. Co., 44 Neb. 167; Clark v. Eighth Ave. R. Co., -56 N. Y. 135. 98 Huelsenkamp v. Citizens' Ry. Co., 37 Mo. 537; Seymour v Citi- (80) Ch. 3] ACCIDENTS WHILE ON CAR. K 3^ There is a conflict of authority as to what constitutes as- sent on the part of those in charge of a car. Where a pas- senger rode on a step of a crowded car, it was held, in Huel- senkamp v. Citizens' Ey. Co.,^^ that consent could not he inferred; but in Pray v. Omaha St. Ky. Co.''^ it was held that a person so riding is presumed to be there with the con- sent of the servants of the company. Where a passenger rode on the step of a dummy car be- cause the platform was crowded, although there was plenty of room inside the car, and was struck by a post, with the- position of which he was familiar, he was held not to be in the exercise of due care.^*° It has been held that, if a person riding in the daytime on the front steps or platform of a closed street car, moving at the rate of four miles iiii hour, casually or momentarily turns his head, or leans his body out beyond the line of the car as incident to an effort to secure a more comfortable or a safer position, he is not necessarily precluded from recovering in an action against the railway corporation for injuries occasioned by his head striking a post standing about three feet from the nearer rail of the car track, and visible from the car for a quarter of zens' Ry. Co., 114 Mo. 266; Clark v. Eighth Ave. R. Co., 36 N. Y. 135; Lehr v. Stein way & H. P. R. Co., 118 N. Y. 556; Saltzman v. Brook- lyn City R. Co., 73 Hun (N. Y.) 567; Germantown Passenger Ry. Co. V. Walling, 97 Pa. 55; West Philadelphia Passenger Ry. Co. v. Gallagher, 108 Pa. 524. 97 Wilde V. Lynn & B. R. Co., 163 Mass. 533; Pray v. Omaha St. Ry. Co., 44 Neb. 167; Schaefer v. Union Ry. Co., 29 App. Div. (N. Y.) 261. 98 34 Mo. 45. 98 44 Neb. 167. 100 Aikin v. Frankford & S. P. C. P. R. Co., 142 Pa. 47. (81> Ry. Ace— 6. § 37 STKKET RAILWAY ACCIDENT LAW. [Ch. 3 a mile as the car approached ; but, if he deliberately leans out beyond the car with his face turned in the direction op- posite to that in which lie car is moving, he cannot recover for such injury.^"^ It is not lack of due care, as matter of law, to stand on the step of an electric car, although the entrance on that side is barred by a chain^"^ or by a gate.'"^ If a passenger is forced to ride upon the step of a crowded car, the company is bound to use greater care;'"* but where a man was un- necessarily on the step, and was injured by a collision with a wagon, there was held to be no evidence of the company's negligenee.^"^ A passenger riding on the step of a street car assumes the risk arising from the ordinary motion of the car, but not the risk arising from the negligence of the com- pany.^"* A passenger riding on the front step is not sub- ject to the provisions of an act regulating the liability of the company to persons getting on or off at the front end of the car.i"'' § 37. Riding on running board. Although riding on the running board has apparently been attended with rather more danger than riding on the plat- forms or steps, it is nevertheless held that riding in this position is not of itself lack of due care as a matter of law; 101 Cummings v. Worcester, L. & S. St. Ry. Co., 166 Mass. 220. 102 Schwartz v. Cincinnati St. Ry. Co., 1 Ohio Dec. 197. los Seymour v. Citizens' Ry. Co., 114 Mo. 266. loiKinkade v. Atlantic Ave. R. Co., 9 Misc. Rep. (N. Y.) 273, af- firmed 149 N. Y. 615. 106 Ashbrook v. Frederick Ave. Ry. Co., 18 Mo. App. 290. 106 Willmott V. Corrigan Consol. St. Ry. Co., 106 Mo. 535. 107 Seymour v. CltizeBS' Ry. Co., 114 Mo. 266. (82) Ch. 3] ACCIDENTS WHILE ON CAR. § 37 and the rule is the same, whether the car is a horse car,"* a cable car,"^ an electric car,"" or a stage sleigh,"^ al- though electric cars have been held to require more care in operation than horse cars,"^ and to occupy a position mid- way between that of horse cars and steam cars.^" Whether or not the car is crowded is perhaps the most important consideration in determining the question of the passenger's due care. Where the ear is crowded, and the passenger rides on the running board without objection from those in charge of the car, he is held not to be guilty of lack of du6 care as matter of law,-'^* while, if there is plenty "8 Harbison v. Metropolitan R. Co., 9 App. D. C. 60; North Chicago St. R. Co. V. Williams, 140 111. 275; Topeka City Ry. Co. v. Hlggs, 38 Kan. 375; City Ry. Co. v. Lee, 50 N. J. Law, 435; Bruno v. Brook- lyn City R. Co., 5 Misc. Rep. (N. Y.) 327; Herdt v. Rochester City & B. R. Co., 20 N. Y. Supp. 346; Geitz v. Milwaukee City Ry. Co., 72 Wis. 307. 109 West Chicago St. R. Co. v. McNulty, 64 111. App. 549; West Chicago St. R. Co. v. Marks, 82 111. App. 185; Pomaski v. Grant, 119 Mich. 675. 110 Hesse v. Meriden, S. & C. Tramway Co. (Conn.) 54 Atl. 299; McGrath v. Brooklyn, Q. C. & S. R. Co., 87 Hun (N. Y.) 310; Has- sen V. Nassau Electric R. Co., 34 App. Div. (N. Y.) 71; Brainard V. Nassau Electric R. Co., 44 App. Div. (N. Y.) 613; Henderson v. Nassau Electric R. Co., 46 App. Div. (N. Y.) 280; Sheeron v. Coney Island & B. R. Co., 78 App. Div. (N. Y.) 476; Anderson v. City & Suburban Ry. Co. (Or.) 71 Pac. 659; Bumbear v. United Traction Co., 198 Pa. 198; Elliott v. Newport St. Ry. Co., 18 R. I. 707; Cogs- well v. West St. & N. E. Electric Ry. Co., 5 Wash. 46. 111 Spooner v. Brooklyn City R. Co., 54 N. Y. 230. 112 Cogswell V. West St. & N. E. Electric Ry. Co., 5 Wash. 46. 113 Bumbear v. United Traction Co., 198 Pa. 198. 114 Hesse v. Meriden, S. & C. Tramway Co. (Conn.) 54 Atl. 299; West Chicago St. R. Co. v. McNulty, 64 111. App. 549; West Chicago St. R. Co. v. Marks, 82 111. App. 185; Topeka City Ry. Co. v. Hlggs, 38 Kan. 375; Pomaski v. Grant, 119 Mich. 675; City Ry. Co. v. Lee, (83) § 37 STEFHT RAILWAY ACCIDENT LAW. [Ch. 3 of room inside, it has been held that the passenger assumes all the risks arising from the position which he chooses to take;^^^ and in any event, a passenger riding on the run- ning board assumes the risk of the ordinary perils incident to the position.^^* To give up one's seat to a woman pas- senger, and stand on the running board, is not lack of due care as matter of law.*^'' If a passenger rides on the rimning board when there is room inside the car, and is injured by the breaking of a handle bar as he swings out from the ear, and it appears that the handle bar was meant to help passengers in board- ing and leaving the car, and was strong enougli for that pur- pose, t.lie passenger cannot recover.-'^® 50 N. J. Law, 435; Plynn v. Consolidated Traction Co., 64 N. J. Law, 375; McGrath v. Brooklyn, Q. C. & S. R. Co., 87 Hun (N. Y.) 310; Hassen v. Nassau Electric R. Co., 34 App. Div. (N. Y.) 71; Brainard v. Nassau Electric R. Co., 44 App. Div. (N. Y.) 613; Bruno V. Bro-ldyu City R. Co., 5 Misc. Rep. (N. Y.) 327; Herdt v. Roch- ester City & B. R. Co., 20 N. Y. Supp. 346; Sheeron v. Coney Island & B. R. Co., 78 App. Div. (N. Y.) 476; Anderson v. City & Suburban Ry. Co. (Or.) 71 Pac. 659; Bumbear v. United Traction Co., 198 Pa. W8; Elliott v. Newport St. Ry. Co., 18 R. I. 707; Cogswell v. West St. & N. E. Electric Ry. Co., 5 Wash. 46; Geitz v. Milwaukee CiLy Ry. Co., 72 Wis. 307. 115 Bumbear v. United Traction Co., 198 Pa. 198. 118 Harbison v. Metropolitan R. Co., 9 App. D. C. 60; Citizens' St. R. Co. V. Hoffbauer, 23 Ind. App. 614; Whalen v. Consolidated Trac- tion Co., 61 N. J. Law, 606; Nies v. Brooklyn Heights R. Co., 68 App. Div. (N. Y.) 259; Herdt v. Rochester City & B. R. Co., 20 N. Y. Supp. 346; Bumbear v. United Traction Co., 198 Pa. 198; Bain- bridge V. Union Traction Co. (Pa.) 55 Atl. 836; Elliott v. Newport St. Ry. Co., 18 R. I. 707. 117 Brainard v. Nassau Electric R. Co., 44 App. Div. (N. Y.) 613. lis Brightwood Ry. Co. v. Carter, 12 App. D. C. 155. (84) Ch. 3] ACCIDSNTS WHILE ON CAR. § 37 riamg A very common ease is wlir-rc the passenger, wliile ridi on the running board, eoiiics into collision with a waeon, post, or another car. It has been held that a passenger who is moving along the running board, and is struck by a wagon standing near the track, is not guilty of lack of due care as a matter of law."" On the other hand, it has been held that a passenger cannot recover when he was riding on the running board, when he could have ridden upon the rear platform, and came into collision with a truck, which he saw p= soon as he got on board the car;^-° and a similar ruling has been made where it did not appear that the passenger actually saw the wagon, but where it was clear that he should have done so.^^-' Where a motorman signaled to the driver of a wagon to get off the track, and he did so, and stopped within two feet of the track, it was held that the motorman was bound to take notice of its position, and to take great care to avoid injury to passengers ;^^^ and where it appeared that a conductor knew of the position of a truck near the track, and started his car ahead, there was held to be evi- dence of negligence for the jury,-'^^ and in a number of cases of collision with a wagon negligence was held to be 110 Paris V. Brooklyn City & N. R. Co., 46 App. Div. (N. Y.) 231; Henderson v. Nassau Electric R. Co., 46 App. Div. (N. Y.) 280. 120 Gaspers v. Dry Dock, E. B. & B. R. Co., 22 App. Div. (N. Y.) 156; Littman v. Dry Dock, B. B. & B. R. Co., 6 Misc. Rep. (N. Y.) 34. And see Moody v. Springfield St. Ry. Co., 182 Mass. 158. 121 Moylan v. Second Ave. R. Co., 128 N. Y. 583; Flynn v. Concoli- dated Traction Co., 64 N. J. Law, 375. 122 Henderson v. Nassau Electric R. Co., 46 App. Div. (N. Y.) 280. 123 Goldwasser v. Metropolitan St. Ry. Co., 32 Misc. Rep. (N. Y.) 682. (85) § 37 STREET RAILWAY ACCIDENT LAW. [Ch. 3 for the jury.^2* A person placed in sudden peril is not held to the usual standard of care.^^° Where a newsboy got on the running board to sell his papers, and was struck by a wagon standing near the track, there was held to be no neg- ligence on the part of the company.^^® The following rulings have been made where the pas- senger was injured by a collision with another car. The case was held to be for the jury where the plaintiff was in- jured by a collision with another car, and there was evidence that the tracks were nearer together than at any other place, and slanted inwards.'^^ The space of four feet between the inner rails of a double track — the smallest space allowed by law — cannot be said to be dangerous to passengers as a matter of law ; and where a passenger on the running board was struck by another car, and there was no evidence of a defect in the tracks or a lurch of the car, there was held to be no presumption of negligence.^^® There was held to be no negligence where a passenger on the running board was struck by a closed car, and it appeared that there was a space of seventeen inches between the outside step and the body of the other car;^^^ but where a passenger on the running board was injured by a collision with a car passing in the opposite direction, and it appeared that the posts of the 12* West Chicago St. R. Co. v. McNulty, 64 111. App. 549; Sweeney V. Kansas City Cable Ry. Co., 150 Mo. 385; Bumbear v. United Trac- tion Co., 198 Pa. 198. 125 West Chicago St. R. Co. v. McNulty, 64 111. App. 549. 126 Padgitt V. Moll & Citizens' Ry. Co., 159 Mo. 143. 127 Gray v. Rochester City & B. R. Co., 61 Hun (N. Y.) 212; Herdt V. Rochester City & B. R. Co., 20 N. Y. Supp. 346. 128 Harbison v. Metropolitan R. Co., 9 App. D. C. 60. 129 Craighead v. Brooklyn City R. Co., 123 N. Y.. 391. (86) Ch. 3] ACCIDENTS WHILE ON CAR. § 37 ears were twenty-five inches apart when standing still, neg- ligence was held to be for the jury."" It is gross negligence for a street car company to allow its cars to become over- crowded, and then to run them so near another track that they cannot pass another car without injury to passengers.-'^* Where a car took the wrong track, and the plaintiff, dis- covering this, stepped out on the running board to find the conductor, and was struck by a trolley pole, and it appeared that it was after dark, it was held that due care and negli- gence were for the jury.*^^ Where a passenger, while on the running board of a crowded car, was struck by a trolley pole ten and one-half inches from the running board, due care and negligence were held to be for the jury;*^^ but in Sibley v. New Orleans City & L. E.. Co.,*^* where a pas- senger was injured by a pole fourteen inches from the run- ning board, the court held, on all the evidence, that the plain- tiff must have leaned out into the darkness, and could not recover. Where there were poles between a double track, and a passenger got on the running board to attract the con- ductor's attention, and was struck by one of these poles, it was held that he could not recover."^ A passenger who walked along the running board without reasonable cause, and, swinging out, struck an elevated column, was held not entitled to recover."* Where there was plenty of space be- 130 Geitz V. Milwaukee City Ry. Co., 72 Wis. 307. 131 Topeka City Ry. Co. v. Higgs, 38 Kan. 375. 132 Citizens' St. R. Co. v. Hoffbauer, 23 Ind. App. 614. 133 Hesse v. Meriden, S. & C. Tramway Co. (Conn.) 54 Atl. 299; Elliott V. Newport St. Ry. Co., 18 R. I. 707. 134 49 La. Ann. 588. 135 state V. Lake Roland El. Ry. Co., 84 Md. 163. 136 Coleman v. Second Ave. R. Co., 114 N. Y. 609. (8T) § 37 STREET RAILWAY ACCIDENT LAW. [Ch. 3 tween a car and a pole, and a passenger leaned out and was struck, he was held not to be in the exercise of due care.^^'' The fact that a passenger riding on the running board of a crowded car is intoxicated does not necessarily prevent his recovering. His due care is a question for the jury, and the conductor, knowing of his intoxication, must ex- ercise care in passing by him.'^* To run a car so near an obstruction that a passenger may, in the ordinary course of things, be hurt, is evidence of negligence for the jury.'^'' Where a passenger was riding on the running board, and his hand slipped from the upright, which was slippery with rain, and there was no unusual mo- tion of the car, it was held that there was no evidence of negligence.**" Where a passenger on a street car was walk- ing along the running board, and struck his head against one of the elevated columns, the street '^ar company was held to be guilty of no negligence.'*' It is not unusual or dan- gerous to have trolley poles betweer; a double track, and it is not negligence not to have a bar on the side of the car nearest the poles.'*^ Where a conductor called to a pas- senger to come forward on the running board, and, in passing ■around the conductor, the passenger was struck by an ele- Tated column, it was held that the conductor's invitation did not relieve the passenger from the duty of using due 137 Nugent V. New Haven St. Ry. Co., 73 Conn. 139. 133 Kingston v. Ft. Wayne & E. Ry. Co., 112 Mich. 40. 139 Nortli Chicago St. R. Co. v. Williams, 40 111. App. 590, 140 111. •275; West Chicago St. R. Co. v. Marks, 82 111. App. 185. "0 Johnson v. Brooklyn Heights R. Co., 63 App. Div. (N. Y.) 374. 1*1 Murphy v. Ninth Are. R. Co., 6 Misc. Rep. (N. Y.) 298; Vroman v. Houston, W. St. & P. Ferry R. Co., 7 Misc. Rep. (N. Y.) 234. 142 State V. Lake Roland El. Ry. Co., 84 Md. 163. (88) Ch. 3] ACCIDENTS WHILE ON CAR. § 38 care.-'*^ Where a passenger on the running board was struck by a barrier*** near the track, due care and negligence were held to be for the jury. Where a passenger on the running board was injured by contact with a bridge, and the space between the running board and the bridge was only eigliteen inches, it was held that, owing to plaintiff's position, both plaintiff and defendant were bound to use more care than usual, and that plaintiff's due care was for the jury, even if he leaned back to look for a friend, or to replace money in his pocket.-'*^ Where a passenger testified that he was thrown off the run- ning board because the conductor stumbled against him, it was held error to grant a nonsuit.-^*® Where a boy of eight rode on the running board at the side of the car not meant for passengers, where strips were placed to prevent their getting on or off, and fell off and was injured, it was held tbat he exposed himself to evident peril, and could not recov- er.**'^ Even if a passenger is not in the exercise of due care, the defendant may be liable if it could have avoided the accident.-^** § 38. Standing in car. It is not contributory negligence for a woman to stand in a crowded street car.^*^ When a woman enters a crowded 143 Third Ave. R. Co. v. Barton, 107 Fed. 215. m North Chicago St. R. Co. v. Polkey (111.) 67 N. E. 793; Citizens' St. Ry. Co. v. Merl, 26 Ind. App. 284; Berry v. Utica Belt Line St. R. Co., 76 App. Div. (N. Y.) 490. 145 Anderson v. City & Suburban Ry. Co. (Or.) 71 Pac. 659. 148 Whalen v. Consolidated Traction Co., 61 N. J. Law, 606. 147 Udell V. Citizens' St. R. Co., 152 Ind. 507. 14S Denver & B. P. Rapid Transit Co- v. Dwyer, 20 Colo. 132. 140 Griffith V. Utica & M. R. Co., 17 N. Y. Supp. 692. (89) § 38 STREET RAILWAY ACCIDENT LAW. |[Ch. 3 car, she must hold onto the straps provided for the purpose if she reasonably can, and, if she cannot, and takes hold of a friend's hand for support, her due care is for the jury.^^* Where the conductor did not stop, and a passenger stood up to hail him, and was thrown off by a jerk of the car on a curve, the case was held to be for the jury.^^^ It is not lack of due care to go to the door to make inquiries of the conductor as to the destination of the car.^^^ Where a passenger standing in the gripman's aisle was struck by the brake, it was held that a street railway com- pany allowing its cars to be crowded must use a high degree of care, and is not excused because a passenger lightly dis- obeys a rule, unless he is warned of the danger, so that he appreciates it.-'^^ A person who enters an open horse car, the seats of which are all occupied by passengers, and, without objection by the conductor of|*he car, who collects a fare of him, stands in the space between the passengers occupying one seat and the back of the next seat, holding onto the latter with his hands, is not precluded, by reason of having taken such a position, from maintaining an action against the corpora- tion owning the car for injuries occasioned by being thrown from the car while it is being driven around a curve in the street.^^* Where a woman was standing because she could 160 Whipple V. West Philadelphia Passenger Ry. Co., 2 Wkly. Notes Cas. (Pa.) 559; West Philadelphia Passenger Ry. Co. v. Whipple, 5 Wkly. Notes Cas. (Pa.) 68. 151 Ripley V. Second Ave. R. Co., 8 Misc. Rep. (N. Y.) 449. 152 Parrell v. Houston, W. St. & P. Ferry R. Co., 4 N. Y. Supp. 597. 153 West Chicago St. R. Co. v. Johnson, 77 111. App. 142, affirmed 180 111. 285. i54Lapointe v. Middlesex R. Co., 144 Mass. 18. (90) Ch. 3J ACCIDENTS WHILE ON CAR. § 40 find no seat or strap, and the car started suddenly, the neg- ligence of the company was held to be for the jury.^^^ Where a passenger lost his hat, got up to signal the con- ductor, and was struck by a post less than two feet from the floor of the car, it was held that he was not to blame for rising, and that the negligence of the company was for the jury.^^* Where a passenger stood in a crowded coach, the degree of care which the company owed to her was held to be increased.!^''' Where a woman stood at the end of a seat in an open car with a market basket on her arm, although she was warned to keep her seat, she cannot recover.-"^^® § 39. Riding on bumper. Where the car is so full that there is no room in the car or on the platform, standing on the bumper outside of the platform is lack of due care as matter of law;^^* and the ca.se is still stronger against the passenger when the con- ductor warns him that he is occupying a dangerous posi- tion.^^" Where a passenger was allowed to ride on the bump- er, the company was held liable for gross negligence in a rear-end collision.-'®^ § 40. Preparatory to alighting. Standing in a car, which is still moving, preparatory to alighting, is held not to be lack of due care as matter of 155 Continental Passenger Ry. Co. v. Swain, 13 Wkly. Notes Cas. (Pa.) 41. 156 Schmidt v. Coney Island & B. R. Co., 26 App. Div. (N. Y.) 39i. 157 Geddes v. Metropolitan R. Co., 103 Mass. 391. 15S Jackson v. Philadelphia Traction Co., 182 Pa. 104. 169 Bard v. Pennsylvania Traction Co., 176 Pa. 97. 160 Nieboer v. Detroit Electric Ry. Co., 128 Mich. 486. 101 Grieve v. North Jersey St. Ry. Co., 65 N. J. Law, 409. (91) §40 STREET RAILWAY ACCIDENT LAW. [Ch. 3 law. For a passenger to signal a street ear to stop, and then to walk to a place where he expects to alight, and stand there waiting for the car to stop, is so common that such conduct cannot he said to be lack of ordinary care.-'®^ Thus, the plaintiff has been held not to be barred from recovery where he stood, preparatory to alighting, on the rear plat- form,^*^ or the running board,^^* or step of rear platform,^®^ or inside the car,^®® or with one foot on the rear platform f and one on the step,-'*^ or with one foot in the car and one on the running board.^®* There is no rule of law which requires a passenger in a street car to retain his seat or other position until the car has actually stopped, and it is a matter of universal oh- 162 North Chicago St. R. Co. v. Southwick, 66 111. App. 241. 163 North Chicago St. R. Co. v. Southwick, 66 111. App. 241; North Chicago St. R. Co. v. Baur, 79 111. App. 121; Fleck v. Union Ry. Co., 134 Mass. 480; Etson v. Ft. Wayne & B. I. Ry. Co., 110 Mich. 494; Blondel v. St. Paul City Ry. Co., 66 Minn. 284; Scott v. Bergea County Traction Co., 63 N. J. Law, 407. 164 Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233; Sweeney V. Kansas City Cable Ry. Co., 150 Mo. 385; Omaha St. Ry. Co. v. Craig, 39 Neb. 601; Medler v. Atlantic Ave. R. Co., 12 N. Y. Supp. 930. 165 Washington & G. R. Co. v. Harmon's Adm'r, 147 U. S. 571; Birmingham R. & B. Co. v. James, 121 Ala. 120; Watklns v. Birming- ham R. & E. Co., 120 Ala. 147; Currie v. Mendenhall, 77 Minn. 179; Bowie V. Greenville St. Ry. Co., 69 Miss. 196; Llnch v. Pittsburgh Traction Co., 153 Pa. 102; Foster v. Union Traction Co., 199 Pa. 498. 166 Demann v. Eighth Ave. R. Co., 10 Misc. Rep. (N. Y.) 191; Sweeney v. Union Traction Co., 199 Pa. 293; Consolidated Traction Co. V. Thalheimer, 59 N. J. Law, 474. 167 Mitchell V. Electric Traction Co., 12 Pa. Super. Ct. 472. 168 Springfield Consolidated Ry. Co. v. Hoeftner, 71 111. App. 162; Bradley v. Ft. Wayne & B. Ry. Co., 94 Mich. 35. (92) Ch. 3] ACCIDENTS WHILE ON CAR. g 40 servation that thousands every day leave their seats to get off before the car has stopped without sustaining any in- jury.188 A passenger on a street car, v?ho goes out upon the plat- form after the conductor has called the name of a street, and is standing upon the step vfhen the car stops, is justified in alighting.^'^'* In Dresslar v. Citizens' St. E. Co.^" it was held that where a passenger, in attempting to change his position from the platform to the step below, preparatory to alighting, was injured by the gradual increase in speed, there was no neg- ligence on the part of the company ; and the same ruling has been made where the passenger fell off, but there was no un- usual motion of the car.^^^ Where a passenger testified that, as the car slowed down in answer to his signal, he went onto the rear platform, and "the car went right from under him," but there was no proof of any jolt or jerk, there is no evidence of negligence on the part of the company.^ ^^ Where a passenger's signal was not heeded, and he stood up on the extreme edge of the ear, and was thrown off when the car stopped with a jar, there was held to be a lack of due care.^'^^^ In Laeas v. Detroit City Ey. Co.^^* it was held that, where a passenger was just about to put her foot upon the leoBabcock v. Los Angeles Traction Co., 128 Cal. 173; Nichols v. Sixth Ave. R. Co., 38 N. Y. 131. 170 North Chicago St. R. Co. v. Brown, 178 lU. 187. 171 19 Ind. App. 383. 172 Philips V. St. Charles St. R. Co., 106 La. 592. 173 Armstrong v. Metropolitan St. Ry. Co., 23 App. Div. (N. Y.) 137. 17311 Jennings v. Union Traction Co. (Pa.) 55 Atl. 765. 174 92 Mich. 412. §41 STREET RAILWAY ACCIDENT LAW. [Ch. 3 running board, and it would have been difficult for her to turn back, she was not guilty of lack of due care in contin- uing her descent from the car as it started. Where a pas- senger placed his hand on the door of an elevated railroad car to steady himself before alighting, and a guard opened the door just before the train stopped, there was held to be no negligence.^^" § 41. Changing position on car. Where an employe not on duty tried to pass from the tender to a car on a dummy train while the train was in rapid motion on a short curve, it was held that he was not in the exercise of due care.-"® When a passenger attempts to pass from the running board of an open car to the steps of a closed car on a dummy line while the car ia in motion, he is gi-iilty of contributory negligence, and proof of a cus- tom of passengers to do this will not help him, since the act is obviously dangerous.'''''^ When a passenger is injured in consequence of passing from the running board of one car to that of another because of the ordinary vibration, or fail- ure to get a firm foothold or grasp, or by losing his hold on the car, or a misstep, or losing his balance, his own neg- ligence will prevent recovery.^''* It has been held that it is lack of due care to pass from the platform of one open car to that of the next while the train is in motion ;^^^ but on the other hand it has been 175 Hannon v. Boston El. Ry. Co., 182 Mass. 425. 1T6 McDaniel v. Highland Ave. & B. R. Co., 90 Ala. 64. 177 Hill V. Birmingham Union Ry. Co., 100 Ala. 447. 17S Eickhof V. Chicago North Shore St. Ry. Co., 77 111. App. 196. (94) ■Ch. 3] ACCIDENTS WHILE ON CAR. g 41 held that, where it is customary for conductors and passen- gers to pass from the platform of one car to that of another on an electric train, it is not lack of due care, as a matter of law, to do so 5^*" and walking on the upper deck of a horse car for the purpose of descending to the lower platform while the car is in motion is not lack of due care as matter of law.i«i Where a passenger walked along the running board with- out any necessity, and leaned out and struck an elevated col- umn, he was held not to be in the exercise of due care;^*" and where a passenger went from the rear platform along the running board and struck a column,-'®' and one got on at one side of the car and crossed to the opposite side, where the columns were,^** it was held in both cases that there was no evidence of the company's negligence. There was likewise held to be no negligence where a passenger changing his position on the running board was struck by another car.'^^ Where there were poles between a double track, and a passenger got out on the running board to attract the con- ductor's attention, and struck a pole, it was held that he could not recover.^®® Even if the conductor calls a passen- ger to come forward on the running board, and, in going 1T9 Bemlss v. New Orleans City & L. R. Co., 47 La. Ann. 1671. 180 Burt V. Douglas County St. Ry. Co., 83 rt^is. 229. 181 Baltimore & Y. Turnpike Road v. Leonhardt, 66 Md. 70. 182 Coleman v. Second Ave. R. Co., 114 N. Y. 609. 183 Vroman v. Houston, W. St. & P. Ferry R. Co., 7 Misc. Rep. (N. Y.) 234. 184 Murphy v. Ninth Ave. R. Co., 6 Misc. Rep. (N. Y.) 298. 185 Harbison v. Metropolitan R. Co., 9 App. D. C. 60. 186 State V. Lake Roland El. Ry. Co., 84 Md. 163. (95) § 43 STREET RAILWAY ACCIDENT LAW. [Ch. 3 around the conductor, he is struck by an elevated column, the invitation does not relieve the passenger from the duty of using due care.-'®^ § 42. Catching dress. Where a passenger caught her dress on a bolt on the floor of a car, even if she knew, or, by the exercise of ordinary care, might have known, that the bolt was there, she is not guilty of lack of due care as matter of law;^^* and where a passenger caught her dress on a bolt extending three- eighths of an inch above the floor of the car, it was held that the jury could find, Avithout direct proof, that such a bolt was dangerous, and that the due care of the passenger was a question of fact.^*^ Where a passenger caught her dress on a broken curtain hook, and the company proved that such hooks were used on all its cars, that such an accident had never occurred before, and that, at the end of each trip,^ the cars were inspected, and the broken hookS, if discov- ered, replaced, there was held to be no evidence of negli- gence;^^" and Avhere a passenger caught her dress upon the catch of the door, a finding that the company was not guilty of any negligence was held to be correct.-'^-' § 43. Falling from car. Where a boy >of seven, who was in the habit of boarding street cars to sell water, fell from the platform and was killed, it was held that a nonsuit was properly entered on 187 Third Ave. R. Co. v. Barton, 107 Fed. 215. 188 North Chicago St. R. Co. v. Bldridge, 151 111. 542. 189 Chartrand v. Southern Ry. Co., 57 Mo. App. 425. 190 Kelly V. New York & S. B. Ry. Co., 109 N. Y. 44. 181 Atwood V. Metropolitan St. R. Co., 25 Misc. Rep (N Y ) 758 (96) Ch. 3] ACCIDENTS WHILE ON CAR. § 43 the ground of contributory negligence.^®^ Where a con- ductor called a boy onto the platform, and he fell off through his own imprudence, it was held that he could not recover.^^^ In Chicago City Ey. Co. v. Burrell,i»* where an adult, and in Bishop v. Union K. Co.,"^ where a child of six, fell from a moving car, there was held to be no evidence of negligence on the part of the company. The fact that a sidebar meant to prevent passengers from boarding or leaving the car on that side, and not to prevent them from falling out, was up when the defendant fell out, will not juntify the jury in find- ing negligence. ^^® But where a passenger falls off a street car in full motion in front of the wheels, and the servants in charge of the car know that he has fallen, and is holding onto the iron rail to save himself from being run over, it is culpable negligence if they do not stop the car.^®'' Where a boy of four fell through an open space in an open street car, the due care of the child and the negligence of the company were held to be questions for the jury.^^* Where a boy of eight sat on the platform with his feet on the step, and became dizzy and fell off, negligence was held to be for the jury.-*®* Where a passenger stood near a door of a transfer car, and the door was suddenly opened by an employe of the company, so that she fell out, it was held 192 Smith V. Passenger Ry. Co., 13 Phila. (Pa.) 6. 103 Cronan v. Crescent City R. Co., 49 La. Ann. 65. 194 70 111. App. 60. 195 14 R. I. 314. 196 Whitaker v. Staten Island Midland R. Co., 65 App. Dlv. (N. Y.) 451. 197 Chicago West Div. Ry. Co. v. Hughes, 69 111. 170. 198 Metropolitan R. Co. v. Falvey, 5 App. D. C. 176. 100 Jackson v. St. Paul City Ry. Co., 74 Minn. 48. (97> Ry. Ace— 7. § 44 STREET RAILWAY ACCIDENT LAW. [Ch. 3 that, if she stood where she did under an order from the employe, she had the right to assume that the place was a safe one.^o" In Mt. Adams & E. P. I. Ey. Co. v. Keul there was held to be no evidence of negligence.^"' Where a passenger rose to feel in his pocket for his fare, and fell from the car, it was held that the company was not liable.^"^ Where it was uncertain how a passenger fell from a car, there was held to be insufficient evidence of negligence.^"' § 44. Tripping in car. In Farley v. Philadelphia Traction Co.^"* a passenger fell over the box placed over the wheel of an open car, which was in plain sight, and was held not to be in the exercise of due care, and therefore unable to recover. In a similar case, where it appeared that the company had used such a guard for a long time without injury, there was held to be no evi- dence of negligence on the part of the company.^"® Where a passenger sued the company on the double ground that he fell over a wheel guard and fell over a basket, it was held that there was no negligence in regard to the wheel guard, and that there was no negligence in allowing a passenger in an open car to place a basket between his feet, and that a passenger who attempted to get over the basket assumed the risk.^"^ Where a passenger tripped over a hose lying in 200 Prothero v. Citizens' St. Ry. Co., 134 Ind. 431. 201 4 Ohio Cir. Ct. R. 362. 20!f witherington v. Lynn & B. R. Co., 182 Mass. 596. 203 Payne v. Forty-Second St. & G. St. Ferry R. Co., 40 N. Y. Super. Ct. 8. 204 6 Pa. Co. Ct. R. 347. 206 Thompson v. MetropMitan St. Ry. Co., 140 Mo. 125. 206 Van Winkle v. Brooklyn City R. Co., 46 Hun (N Y ) 564 (98) Ch. 3] ACCIDENTS WHILE ON CAR. § 45 plain sight on a wharf maintained by the company, there was held to be lack of due care.^"^ § 45. Putting arm outside car. Where a passenger was sitting with his arm resting on the window sill, but wholly within the car, and it was thrown out by a jolt of the car while rounding a curve, it was held that occupying such a position was not lack of due care as matter of law.^"® Even if a passenger does allow his elbow or his hand to project from a window of a street car, his due care is still a question for the jury;^"^ and the rule is the same where a passenger stood on the rear platform of a street car with his hands over the dasher.^^* But it has been held thatj where a passenger puts his elbow or arm outside of a street ear window voluntarily without any qualifying circumstances impelling him to do it, this is lack of due care as matter of law.^-'^ It is negligence to allow cars to run so closely together as to injure a passenger whose elbow is projecting a few inches outside the car.^^^ Where an electric car is crossing a bridge, and the conductor sees that a passenger is in danger because his arm is projecting from the car window, it is negligence not to warn him of his peril, and contributory 207 Strutt V. Brooklyn & R. B. R. Co., 18 App. Div. (N. Y.) 134. 208 People's Passenger Ry. Co. v. Lauderbaoh, 4 Penny. (Pa.) 406; Germantown Passenger Ry. Co. v. Brophy, 105 Pa. 38. 209 Summers v. Crescent City R. Co., 34 La. Ann. 139 ; DaMberg v. Minneapolis St. Ry. Co., 32 Minn. 404; Miller v. St. Louis R. Co., 5 Mo. App. 471; Francis v. New York Steam Co., 114 N. Y. 380;" Tucker V. Buffalo Ry. Co., 53 App. Div. (N. Y.) 571. 210 Seigel V. Bisen, 41 Cal. 109. 211 People's Passenger Ry. Co. v. Lauderbaoh, 4 Penny. (Pa.) 406. 212 Summers v. Crescent City R. Co., 34 La. Ann. 139; Tucker v. Buffalo Ry. Co., 53 App. Div. (N. Y.) 571. (99) §46 STREET RAILWAY ACCIDENT LAW. [Ch. 3 negligence is no excuse. ^^'^ A motorman has a right to as- sume that no part of a passenger's person will project beyond the lines of the car.^^^^ § 46. Transferring. In Jamison v. San Jose & S. C. E. Co.,^^* where a pas- senger had to transfer across a plank bridge, without a rail- ing, in the dark, it was held that there was no contributory negligence as a matter of law, and that a verdict for the plaintiff would not be disturbed. II. Unusual Conduct of Company. A street railway company is not an insurer of the safety of its passengers, but it owes them a very high degree of care. Where a passenger is injured through the negligence of the company, the fact that he was traveling on Sunday is no defense. Negligence in overcrowding cars is generally a question for the jury, but it may be held negligent as a matter of law. On the other hand, a passenger may be guilty of lack of due care in riding on a crowded car. The company must use a high degree of care in regard to electricity, and an accident from the electrical apparatus of a car usually raises a presumption of negligence. In acci- dents arising from ordinary defects in the condition of a car, negligence is usually held to be for the jury. The company must do what they reasonably can to protect passengers against injury from fellow passengers. Derailment raises a presumption of negligence, as does a 213 South Covington & C. St. Ry. Co. v. McCleave, 18 Ky. Law Rep 1036. -isazeliff V. North Jersey St. Ry. Co. (N. J. Sup.) 55 Atl. 96. -H55 Cal. 593. (100) Ch. 3] ACCIDENTS WHILE ON CAR. collision between tv/o street cars of tlie same line. VTh^tB^j^ there is a collision between tv/o cars of different lines, no^- presumption arises with respect to the car on which the plain- tiff is not a passenger; and the same ruling is made where the collision is between a street car and a steam railroad. In all these cases of collisions, it is held that the negligence of the employe in charge of a car cannot be imputed to a passenger. An unusual or extraordinary jerk establishes a prima facie case of negligence, but the jerk must be unusual, and not one ordinarily made in the management of a car. The question of excessive speed is usually left to the jury. § 47. Care required of company. While a street railway company is not an insurer of the safety of its passer.gers, it is almost universally held that it does owe them a high degree of care.^^' Just what this de- gree of care is it is difficult to define, since different courts have used different phraseology; but it is sufficient to state that it is an extraordinary degree of care, — something more than the ordinary care owed to people who do not occupy the relation of passengers. ^^^ 215 West Chicago St. Ry. Co. v. Craig, 57 111. App. 411; Louisville & P. R. Co. V. Smith, 2 Duv. (Ky.) 556; Baltimore & Y. Turnpike Road V. Leonhardt, 66 ild. 70; Baltimore City Passenger Ry. Co. V. Nugent, 86 Md. 349; Huelsenkamp v. Citizens' Ry. Co., 37 Mo. 5-^7; Gilson v. Jackson County Horse Ry. Co., 76 Mo. 282; O'Connell v. St. Louis Cable & W. Ry. Co., 106 Mo. 482; Hite v. Metropolitan St. Ry. Co., 130 Mo. 132; Thompson v. Metropolitan St. Ry. Co., 140 Mo. 125; City Ry. Co. v. Lee, 50 N. J. Law, 435; Stierle v. Union Ry. Co., 156 N. Y. 70. 210 Metropolitan R. Co. v. Palvey, 5 App. D. C. 176; Bosqui v. Sutro R. Co., 131 Cal. 390; Holly v. Atlanta St. R. Co., 61 Ga. 215; Macon Consolidated St. R. Co. v. Barnes, 113 Ga. 212; West Chicago (101) §47 STREET RAILWAY ACCIDENT LAW. [Ch.3 In Topcka City Ey. Co. v. Iliggs,"^ the court held that a street railway company must exercise all possible skill, St. R. Co. V. Johnson, 180 111. 285; West Chicago St. R. Co. v. Krom- shinsky, 185 111. 92; Chicago City Ry. Co. v. Engel, 35 111. App. 490; West Chicago St. Ry. Co. v. Craig, 57 111. App. 411; West Chicago St. R. Co. V. N^sh, 64 111. App. 548; Citizens' St. Ry. Co. v. Twiname, 111 Ind. 587; Prothero v. Citizens' St. Ry. Co., 134 Ind. 431; Ham- mond, W. & B. C. Electric Ry. Co. v. Spyzchalski, 17 Ind. App. 7; Douglass V. Sioux City Ry. Co., 91 Iowa, 94; Topeka City Ry. Co. v. Higgs, 38 Kan. 375; Louisville City Ry. Co. v. Weams, 80 Ky. 420; Louisville Ry. Co. v. Park, 96 Ky. 580; Central Passenger Ry. Co. v. Bishop, 8 Ky. Law Rep. 781; Louisville & P. R. Co. v. Smith, 2 Duv. (Ky.) 556; Baltimore & Y. Turnpike Road v. Leonhardt, 66 Md. 70; Baltimore City Passenger Ry. Co. v. Nugent, 86 Md. 349; Watson V. St. Paul City Ry. Co., 42 Minn. 46; Hamilton v. Great Falls St. Ry. Co., 17 Mont. 334; Huelsenkamp v. Citizens' Ry. Co., 37 Mo. 537; Gilson V. Jackson County Horse Ry. Co., 76 Mo. 282; O'Connell v. St. Louis Cable & W. Ry. Co., 106 Mo. 482; Willmott v. Corrlgan Consolidated St. Ry. Co., 106 Mo. 535; Jackson v. Grand Ave. Ry. Co., 118 Mo. 199; Hite v. Metropolitan St. Ry. Co., 130 Mo. 132; Haderlein V. St. Louis R. Co., 3 Mo. App. 601; Wilkerson v. Corrigan Consoli- dated St. Ry. Co., 26 Mo. App. 144; Jacquin v. Grand Ave. Cable Co., 57 Mo. App. 320; Powers v. Union Ry. Co., 60 Mo. App. 481; Parker v. Metropolitan St. Ry. Co., 69 Mo. App. 54; Posch v. Southern Elec- tric R. Co., 76 Mo. App. 601; Freeman v. Metropolitan St. Ry. Co., 95 Mo. App. 94; East Omaha St. Ry. Co. v. Godola, 50 Neb. 900; Lincoln St. Ry. Co. V. McClellan, 54 Neb. 672 ; City Ry. Co. v. Lee, 50 N. J. Law, 435; Consolidated Traction Co. v. Thalheimer, 59 N. J. Law, 474; Whalen v. Consolidated Traction Co., 61 N. J. Law, 606; Hansen V. North Jersey St. Ry. Co., 64 N. J. Law, 686; Maverick v. Eighth Ave. R. Co., 36 N. Y. 378; Coddington v. Brooklyn Crosstown R. Co., 102 N. Y. 66; Lansing v. Coney Island & B. R. Co., 16 App. Div. (N. Y.) 146; Poulsen v. Nassau Electric R. Co., 18 App. Div. (N. Y.) 221; Koehne v. New York & Q. C. Ry. Co., 32 App. Div. (N. Y.) 419, affirmed 165 N. Y. 603; Keegan v. Third Ave. R. Co., 34 App. Div. (N. Y.) 297, affirmed 165 N. Y. 622; Schuler v. Third Ave. R. Co., 1 Misc. 2" 38 Kan. 375. (102) Ch. 3J ACCIDENTS WHILE ON CAR. S 47 foresight, and care in the running of its cars, and that "all possible skill and care" meant every reasonable precaution in the management and operation of the cars to prevent injuries to passengers, and meant good tracks, safe cars, experienced drivers, careful management, and judicious operation in every respect. The utmost care of prudent men must be ex- ercised in approaching a place of danger, as, for instance, guiding a car through a mob.-''^^ In New York an exception appears to have been made to this general rule. In Stierle v. Union Ey. Co.^^* — an action to recover for the negligence of a driver in switching his car from one track to another — it was held that the general rule as to a high degree of care did not apply, and that the driver was bound to use only the care of the ordinarily prudent man. On a rehearing of the case^^* the court said that they did not intend to change the general rule, but merely that that rule was not applicable under the circumstances of this par- ticular case. In Merrill v. Metropolitan St. Ry. Co.,^^" where Rep. (N. Y.) 351; Hadencamp v. Second Ave. R. Co., 31 N. Y. Super. Ct. 490; Dlabola v. Manhattan Ry. Co., 8 N. Y. Supp. 334; Dussell v. Akron St. R. Co., 10 Ohio S. & C. P. Dec. 631; Brooklyn St. R. Co. v. Kelley, 6 Ohio Cir. Ct. R. 155; Philadelphia & R. R, Co. v. Boyer, 97 Pa. 91; Smedley v. Hestonville, M. & F. P. Ry. Co., 184 Pa. 620; Peo- ple's Passenger Ry. Co. v. Weiller, 17 Wkly. Notes Cas. (Pa.) 306; Elliott V. Newport St. Ry. Co., 18 R. I. 707; Citizens' Ry. Co. v. Craig (Tex. Civ. App.) 69 S. W. 239; Dallas Consolidated Traction Ry. Co. V. Randolph, 8 Tex. Civ. App. 213; Reynolds v. Richmond & M. Ry. Co., 92 Va. 400; Payne v. Spokane St. Ry. Co., 15 Wash. 522; Heucke V. Milwaukee City Ry. Co., 69 Wis. 401. 2i7aBosworth V. Union R. Co. (R. I.) 55 Atl. 490. 218 156 N. Y. 70. 219 156 N. Y. 684. 220 73 App. Div. (N. Y.) 401. (103) g- 48 STREET RAILWAY ACCIDENT LAW. [Ch. 3 a passenger was injured by a jolt while rounding a curve, tlie court held, on the authority of the Stierle Case, that rea- sonable care under the circumstances was the measure of the duty of the defendant's servants; and the Stierle Case was approved in Eegensburg v. K'assau Electric E. Co.,^^^ where the court charged that a motorman must use a very high ■degree of care to avoid a runaway, but not the very highest degree of care; and was also approved in Conway v. Brook- lyn Heights E. Co.^^^ Where a street railway company used hacks to carry its passengers from its terminus, they were held to the same high degree of care required of common carriers.^^^ Children and infirm or nick passengers arc entitled to still greater care;^^^ but those in charge of the car must have a reasonable opportunity of knowing of their infirmity.^^^ § ^c3. Eunnmg oars on Sunday. The court will not say that running street cars on Sunday in and near cities is not a work of necessity, and that it is not lawful to so run them.^^® A passenger riding in a street «ar on Sunday for pleasure may maintain an action for the negligence of the company.^^'' In Stanton v. Metropolitan E. Co.^^* it was held that a 221 58 App. Div. (N. Y.) 566. 222 81 N. Y. Supp. 878. 223 Bonce v. Dubuque St. Ry. Co., 53 Iowa, 278. 224 Newark & S. 0. R. Co. v. McCann, 58 N. J. Law, 642; Sheridan •V. Brooklyn City & N. R. Co., 36 N. Y. 39. 225 Jacksonville St. Ry. Co. v. Cliappell, 21 Fla. 175. 228 Augusta & S. R. Co. v. Renz, 55 Ga. 126. 227Horton v. Norwalk Tramway Co., 66 Conn. 272; Knowlton T. Milwaukee City Ry. Co., 59 Wis. 278. 228 14 Allen (Mass.) 485. (See R. L. c. 98, § 17.) (104) Ch. 4] ACCIDENTS WHILE ON CAR. § 43 person cannot legally travel on the Lord's Day from one city to another, a distance of several miles, for the purpose of visiting a stranger, if no occasion of necessity or charity is shown for him to pay such visit, and cannot maintain an action against a street railway company to recover damages for a personal injury received by him, while so traveling in one of their cars, in consequence of their negligence. In Doyle v. Lynn «& B. K. Co.^^" it was held that one who travels from one town to another on the Lord's Day for the sole purpose of visiting a friend whom he knows to be sick, and thinks may be in need of assistance, and of rendering- such assistance as on inquiry he might find to be necessary, is traveling for charity; and in an action against a railroad corporation for injuries sustained while a passenger on that day, on putting in evidence that he was traveling for the purpose above stated, he is entitled to go to the jury on the question whether he was traveling lawfully or not, al- though he offers no evidence of the ground of his belief that his friend was in need of assistance. In Feital v. Middlesex E. Co.^^" — an action by a pas- senger on a street railway for personal injuries — it was held that the facts that the exercises of a spiritualist camp meet- ing included a show to which an admittance fee was charged, and that some of the speakers declared that they would throw away their Bibles in their search after truth, are not con- clusive that a person who traveled on the Lord's Day to attend the meeting did so unlawfully, and the question wlieth- er he traveled except from necessity or charity is for the jury. 229 118 Mass. 195. 230 109 Mass. 398. (105) (j 49 STREET RAILWAY ACCIDENT LAW. [Ch. 3 § 49. Crowding cars. It is not negligence, as a matter of law, to crowd street cars or the platforms of street cars, but the question is gen- erally left to the jury.2^1 In Meesel v. Lynn & B. E. Co.^*^ the court said: "The seats inside the car are not the only places where the managers of the train expect passengers to remain; but it is notorious that they stop habitually to receive passengers to stand inside until the car is full, and then to stand upon the platforms till they are full, and con- tinue to stop and receive them even after there is no place for them to stand except on the steps of the platform. Neither the officers of these corporations nor the managers of the cars nor the traveling public seem to regard this practice as hazardous, nor does experience thus far seem to require that it should be restrained upon the ground of its danger." Where a woman with a child on her arm alighted when there was ice on the steps, and a passenger stood so that she could not get hold of the rail, the case was held to be for the jury.^^* In an action for negligent overcrowding of a car, evidence that the plaintiff stood alone on the platform, and was pushed off by passengers leaving, will not support the 2siHolloway v. Pasadena & P. Ry. Co., 130 Cal. 177; Chicago City Ry. Co. v. Young, 62 111. 238; Burns v. Boston El. Ry. Co. (Mass.) 66 N. E. 418; Brusch v. St. Paul City Ry. Co., 52 Minn. 512; Pray V. Omaha St. Ry. Co., 44 Neb. 167; East Omaha St. Ry. Co. v. Godola, 50 Neb. 906; Lehr v. Steinway & H. P. R. Co., 118 N. Y. 556; Graham v. Manhattan Ry. Co., 149 N. Y. 336; Cattano v. Metropolitan St. Ry. Co., 173 N. Y. 565; Mt. Adams & E. P. I. Ry. Co. v. Reul, 4 Ohio Cir. Ct. R. 362; Anderson v. City & Suburban Ry. Co. (Or.) 71 Pac. 659. 232 8 Allen (Mass.) 234. 233 Neslie v. Second & Third Sts. Passenger Ry. Co., 113 Pa. 300. (106) Ch. 3j ACCIDENTS WHILE ON CAR. g 41^ aetion.23* Where a passenger testified that he stood with one foot on the platform and one on the step, with articles in both hands, and that he was crowded between two men and fell from the car while it was in ordinary motion, there was held to be no evidence of negligence. ^^' It is lack of due care, as a matter of law, for a passenger to get upon the front platform on a very stormy night, when the car is too crowded for him to ride in safety f^^ and where a passenger who made his way from the car onto the crowded platform was pushed off, it was held that, even assuming negligence on the part of the company in permitting such crowding, nevertheless the passenger knew that the crowd was there, and could not recover for the injury.^^^ Where the company allows its cars to be greatly overcrowd- ed without objection, and then runs a car so near the inter- section of a switch of the main track that cars cannot pass without injury to passengers, it is gross negligence.^^* Where a passenger in a crowded car stood in the gripman's aisle, and was struck by a brake, it was held that, when a street railway company allows its cars to be crowded, they are not to be relieved from using the high degree of care required of them because a passenger lightly disobeys a rule, imless he is warned of the danger so that he appreciates it.^^^ It has 234 Randall v. Frankford & S. Passenger Ry. Co., 8 Pa. Co. Ct. R. 277. 235 Barry v. Union Traction Co., 194 Pa. 576. 23GTregear v. Dry Dock, E. B. & B. R. Co., 14 Abb. Pr. (N. S.; N. Y.) 49. 23T Chicago City R. Co. v. Consldine, 50 111. App. 47. 238 Topeka City Ry. Co. v. Higgs, 38 Kan. 375. 239 West Cliicago St. R. Co. v. Jolanson, 77 111. App. 142, affirmed 180 111. 285. (107) I £0 STREET RAILWAY ACCIDENT LAW [Ch. 3 been held that a street railway company must use greater care than usual when it allows its ears to become crowded.^'"' § 50. Condition of car. Where an electric car burst into flames, the company must explain the cause of the fire. Proof that a fuse blew out will not exempt them from the imputation of negligence, since there is usually only a flash of light when a fuse blows ^ out.^*^ A fuse burning out raises no presumption of negli- gence, but where there is evidence of a more serious defect, negligence is for the jury.^*^^ Where a passenger became frightened at the flash of the controller, and jumped from the car, and there was evidence that the flashing was of an unusual character, that the controller was out of order, which could easily have been discovered, and the car had not been inspected before it left the station, it was held that negligence was properly submitted to the jury, and that the jury might have imputed negligence to the com- pany from the fact that the motorman, after the flashing began, allowed the car to continue on its course until the fuse burned out.^^^ Where an inspector was examining a controller which was out of order, and the car suddenly start- ed forward, and struck a railroad train, it was held that the 240Geddes v. Metropolitan R. Co., 103 Mass. 391; Archer v. Ft. Wayne & E. Ry. Co., 87 Mich. 101; Klnkade v. Atlantic Ave. R. Co., 9 Misc. Rep. (N. Y.) 273; Anderson v. City & Suburban Ry. Co. (Or.) 71 Pac. 659; Sandford v. Hestonville, M. & F. P. R. Co., 136 Pa. 84; McCaw v. Union Traction Co. (Pa.) 54 Atl. 893. 241 Poulsen V. Nassau Electric R. Co., 18 App. Div. (N. Y.) 221. 2"aCassady v. Old Colony St. Ry. Co. (Mass.) 68 N. E. 10. 242 poulsen Y. Nassau Electric R. Co., 30 App. Div. (N. Y.) 246. (108) Ch. 3] ACCIDENTS WHILE ON CAR. § 50 company was negligent, and the plaintiff was not.^** The company must use a very high degree of care in regard to such a powerful force as electricity ; and where flames leaped from the controller box, and a passenger received a shock while leaving the ear, this was held to be a prima facie case of negligence.^** Where the controller exploded, negligence in operating the car, and negligence in the motorman's leaving his post on a crowded car, and causing a panic, were held to be for the jury.^*^ Where the handles on the dasliers of an electric car became charged with electricity and in- jured a passenger, the company was held chargeable with notice thereof.^*® Overheating of a wheel plate by friction caused by overloading a ear raises a presumption of negli- gence.^*®'^ Where a spliced cable broke eight days after it had been mended, negligence is for the jury, although there is evidence that a splice would last five or six weeks, and the employes who made it testified that the work was done thoroughly, where the defendant fails to produce the watcher who was inspecting the cable on the day of the accident."*'' In Richmond R. & E. Co. v. Bowles^*^ — a case of an acci- dent from a broken trolley wire — it was held that electricity is an agency no less powerful and dangerous than steam, and 243 Willis V. Second Ave. Traction Co., 189 Pa. 430. 244 Leonard v. Brooklyn Heights R. Co., 57 App. Div. (N. Y.) 125. 245Buckbee v. Third Ave. R. Co., 64 App. Div. (N. Y.) 360. 246 D'Arcy v. Westchester Electric Ry. Co., 81 N. Y. Supp. 952; Den- ver Tramway Co. v. Reid, 4 Colo. App. 53; Dunlay v. United Traction Co., 18 Pa. Super. Ct. 206; Burt v. Douglas County St. Ry. Co., 83 Wis. 229. 240a Powell v. Hudson Valley Ry. Co., 84 N. Y. Supp. 337. 24T Smith V. Metropolitan St. Ry. Co., 59 App. Div. (N. Y.) 60. 248 92 Va. 738. (109) ^ 50 STREET RAILWAY ACCIDENT LAW. j^Ch. 3 imposes equal obligations upon those who use it; and in Ealtimore City Passenger Ky. Co. v. Nugent ^** it was held that, where a passenger was injured by the breaking of a trolley wire, this was a prima facie case of negligence, but that the presumption could be rebutted if the accident oc- curred from a hidden defect, which could not reasonably have been discovered, and if competent contractors used proper material and a proper method of construction. In Louisville Ey. Co. V. Russell's Adm'r,^®" where the trolley wire broke, and a passenger was killed by coming in contact with a live wire, the question of an unavoidable accident on the ground that the trolley wire broke by reason of crystallization, which could not have been expected, was properly left to the jury. In accidents arising from a defective brake, the question of the defendant's negligence is usually for the jury.^^-' It has been held in such a case that, where an accident is caused by a thing controlled or managed by the defendant, and is such as would hot have happened in the ordinary course of things if those in control had used reasonable care, this gives rise to a presumption of negligence.^^^ In Sharp V. Kansas City Cable Ey. Co.^^^ it was held that proof that the brake would not hold the car made out a prima facie case for the plaintiff, and that the company was bound to an- 240 86 Md. 346, 250 20 Ky. Law Rep. 1246. 25iEtson V. Ft. Wayne & B. I. Ry. Co., 114 Mich. 605; Feary v. Metropolitan St. Ry. Co., 162 Mo. 75; Schneider v. Second Ave. R. Co., 133 N. Y. 583 ; Wynn v. Central Park, N. & E. R. R. Co., 133 N. Y. 675. 252Gilmore v. Brooklyn Heights R. Co., 6 App. Div. (N. Y.) 117. 253 114 Mo. 94. (110) Ch. 3] ACCID3NTS WHILE ON CAR. § sQ ticipate such weather and condition of the track as might rea- sonably be expected. Where a driver put on the brake while a ear was going down hill, it was held that, even if he used more force than was necessary, this did not authorize the submission of the question of his due care to the jury.*^* Where the plaintiff stopped to pick up a bundle on the front platform, and was hit in the head by the brake, the case was held to be for the jury.^^^ Where a driver put on the brake when the car was going down hill seven miles an hour, and caused the car to give a sudden jerk, negligence was held to be for the jury.^^* Where a passenger had gone on the front platform to leave the car, and was struck by the brake, it was held that the case did not come mthin a statute providing that the company should not be liable for injuries occasioned to passengers while leaving the car by the front platform. ^^''' It is negligence to have a snap switch closed so that an air brake will not work.^"^^®- A street railway company is not liable for using old cars, but it must keep them in good repair.^^^ Where a drunken man broke the glass in a door, so that it was ready to fall, there was no conductor on the car, and the driver knew that the injury had been done, but did not examine into the extent of it, this was held to be negligence. ^^^ Where it was the cus- tom to keep a gate on a platform nearest a parallel track closed, and it was left open, negligence was held to be for the 254 Wynn v. Central Park, N. & E. R. R. Co., 133 N. Y. 575. 255 Schuler v. Third Ave. R. Co., 1 Misc. Rep. (N. Y.) 351. 256 Murray v. Brooklyn City R. Co., 7 N. Y. Supp. 900. 257 Nissen v. Missouri R. Co., 19 Mo. App. 662. 25Ta McAllister v. People's Ry. Co. (Del.) 54 Atl. 743. 258 Wormsdorf v. Detroit City Ry. Co., 75 Mich. 472. 259 Allen V. Dry Dock, B. B. & B. R. Co., 2 N. Y. Supp. 738. (Ill) § 50 -'STEEET RAILWAY ACCIDENT LAW. [Ch. 3- jury;^^" and whether a street railway company should have guards on the platforms to prevent passengers from falling off was likewise held to be a question for the jury.^^^ Where a gate gave way, and the conductor, whose duty it was to see that it was fastened, knew that it could not be fastened, this was held to be sufficient evidence of negligence.^''^ The fact that a passenger saw a trapdoor in a car raised and lowered again is no defense in an action for falling through the trap- door.^*^^ Where a curtain rod broke while a high wind was blowing, and one end of the rod struck a passenger, the com- pany was held not to be liable;^''* and where a passenger caughu her dress on a curtain hook, and it appeared that such hooks were in use on all the company's cars, that such an acci- dent had never hajjpened before, and that the cars were in- spected at the end of each trip, and broken hooks repaired, there was held to be no negligence.^®''' Where a ring in the floor ox a car rises when the car stops, this is negligence, al- though the ring is a customary device, and the car was built by a reputable builder. -°° Where a fire extinguisher in a car fell and injured a passenger, this was held to be prima facie negligence.^®^ Whether failure to provide fenders or gates is negligence Is a question for the jury.^°^ W^here a strap =00 Adams v. Washington & G. R. Co.. 9 App. D. C. 26. 201 Archer v. Ft. Wayne & E. Ry. Co., 87 Mich. 101. 202 Pendergast v. Union Ry. Co., 10 App. Div. (N. Y.) 207. 203 Washingtf^n v. Spokane St. Ry. Co., 13 Wash. 9. 204Leyh v. Newburgh Electric Ry. Co., 41 App. Div. (N. Y.) 218. 265 Kelly V. New York & S. B. Ry. Co., 109 N. Y. 44. 206 Kingman v. Lynn & B. R. Co., 181 Mass. 387. 207 Allen V. United Traction Co., 67 App. Div. (N. Y.) 363. 268 North Chicago St. R. Co. v. Wrixon, 51 111. App. 307; Philadel- phia City Passenger Ry. Co. v. Hassard, 75 Pa. 367; Hestonvllle Pas- senger Ry. Co. V. Connell, 88 Pa. 520; West Philadelphia Passenger Ry. Co. T. Gallagher, 108 Pa. 524. (112) Ch. 3] ACCIDENTS WHILE ON CAR. § 5l broke, negligence was held to be for the jury.^®® Where a suspension bar broke, the presumption of negligence was held to be rebutted by proof that the bar was purchased from a reputable dealer, and was inspected daily.^*^^ § 51. Injury by fellow passenger. It is a general rule that those in charge of a street car must do all that they reasonably can to protect passengers- against injury from their fellow passengers,^'" and whether this duty was performed or not was held to be a question) for the jury, where three drunken passengers began a fight,^'''' and where a passenger was injured during a fight between his fellow passengers, and it appeared that there was no conductor on the c.&v.^''^ Where a manifestly intoxicated and quarrelsome man was allowed to ride in a street car because the driver said' he was "too full" to ride on the front platform, the com- pany is liable for an unprovoked assault upon a passenger f'^ and the company was held negligent where its employes allowed a drunk and disorderly man, who had been ejected once, to get upon the car again, and he struck and killed another passenger.^'^ On the other hand, it has been held that the company is not liable for conduct of its passengers 269 Grotsch V. Steinway Ry. Co., 19 App. Div. (N. Y.) 130. 269a Murray v. Pawtuxet Valley St. Ry. Co. (R. I.) 55 Atl. 491. 270 Holly V. Atlanta St. R. Co., 61 Ga. 215; Cross v. Detroit Citizens' St. Ry. Co., 120 Mich. 137; Putnam v. Broadway & S. A. R. Co., 55 N. Y. 108; Randall v. Prankford, S. & P. C. P. R. Co., 139 Pa. 464. 271 Cross V. Detroit Citizens' St. Ry. Co., 120 Mich. 137. 272 Holly V. Atlanta St. R. Co., 61 Ga. 215. 273 Hendricks v. Sixth Ave. R. Co., 44 N. Y. Super. Ct. 8. 274 United R. & B. Co. v. State, 93 Md. 619. (113),, Ry. Ace. — 8. § SI STREETT RAILWAY ACCIDENT LAW. [Ch. 3 unless it was unusual and disorderly, and could have been pre- vented by those in charge of the car f^ and there was held to be no evidence of negligence where an intoxicated passenger remained quiet for some time, and then suddenly killed a fellow passenger with a car hook.^^* In Sullivan v. Jeffer- son Ave. Ry. Co.,^'^'^ where a fellow passenger threw a lighted match on plaintiff's dress, and the driver stopped the car, but was unable to render any assistance, it was held that the defendant was not liable. Where a child was compelled to ride on the platform of a crowded car, and was thrown off by the carelessness of a fellow passenger, the company was nevertheless held responsible.^''^ In Lett V. New Orleans City & L. E. Co.,^^* where some boys were allowed to ride free, and one pushed another off, it was held that the company was not liable. Where a crowd was invited to a park by a street railway ■company, and collected to take a car, with no one to check i;heir movements, negligence was held to be for the jury.^®" Where a passenger was pushed off the front platform of a crowded car by his fellow passengers, it was held that he was not guilty of lack of due care, and that negligence was for the jury.^^^ Where a company continued to run its cars during a strike, and a passenger was injured by a stone thrown by a striker, the company was held not lia- ble.282 276 Randall v. Frankford, S. & P. C. P. R. Co., 139 Pa. 464. 276 Putnam v. Broadway & S. A. R. Co., 55 N. Y. 108. 2" 133 Mo. 1. 278 Sheridan v. Brooklyn City & N. R. Co., 36 N. Y. 39. 279 37 La. Ann. 337. 280 Muhlhause v. Monongahela St. Ry. Co., 201 Pa. 237. 281 Merwin v. Manhattan Ry. Co., 48 Hun (N. Y.) 608. 282 Pewings v. Mendenhall (Minn.) 93 N. W. 127, (114) Ch. 3] ACCIDENTS WHILE ON CAR. § 52 § 52. Derailment. It is almost universally held that the derailment of a street ear furnishes prima facie evidence of negligence ;^^* and this is so, notv?ithstanding the use of a high degree of care and skill on the part of the defendant and its agents.^** In Elgin City Ky. Co. v. Wilson-^^ ^j^g ^^^^.^ g^id ; "The presumption is that the overturning of the car resulted from the defective condition of the track or the mismanagement of the car, or both combined, and the onus was upon the company to show that the accident resulted from a cause for which it was not responsible." In Bergen County Traction Co. v. Demarest^*® the court said : "In the ordinary operation of the defendant's railroad, its cars would not have left the rails. It is a matter of com- mon knowledge that the roadbed of a street railroad is so built, and the cars so constructed, that, when there is no defect in either, and the cars are run with due care, the 283 Bosqui V. Sutro R. Co., 131 Cal. 390; Bassett v. Los Angeles Traction Co., 133 Cal. xlx., 65 Pac. 470; Electric Ry. Co. v. Carson, 98 Ga. 652; Elgin City Ry. Co. v. Wilson, 56 111. App. 364; Calumet Electric St. Ry. Co. v. Jennings, 83 111. App. 612; Louisville & P. R. Co. V. Smith, 2 Duv. (Ky.) 556; Peital v. Middlesex R. Co., 109 Mass. 398; Harriman v. Reading & L. St. Ry. Co., 173 Mass. 28; Bishop v. St. Paul City Ry. Co., 48 Minn. 26; Haderlein v. St. Louis R. Co., 3 Mo. App. 601; Wllkerson v. Corrigan Consolidated St. Ry. Co., 26 Mo. App. 144; Spellman v. Lincoln Rapid Transit Co., 36 Neh. 890; Bergen County Traction Co. v. Demarest, 62 N. J. Law, 755; Dusenbury v. North Hudson County Ry. Co., 66 N. J. Law, 44; Pol- lock v. Brooklyn & C. T. R. Co., 15 N. Y. Supp. 189; Cincinnati St. Ry. Co. V. Kelsey, 2 Ohio Dec. 440 ; Reading City Passenger Ry. Co. v. Bckert, 1 Sup. Ct. Dig. (Pa.) 55. 284 Cincinnati St. Ry. Co. v. Kelsey, 2 Ohio Dec. 440. 285 56 111. App. 364. 280 62 N. J. Law, 755. (115) g 52 STREET RAILWAY ACCIDENT LAW. [Ch. 3 latter will remain u])on tlio track; and consequently, proof of the derailment of a car, in the absence of evidence to the contrary, justifies the conclusion that it resulted either from improper construction, failure to keep in proper repair, or negligence in operation." In Brooklyn St. R. Co. v. Kelley^^'' the rule is less strong- ly stated to be that "negligence may be established by the accident itself, and the circumstances surrounding it under which it occurred, from which you may infer negligence to have been the cause of the injury." The law in New York was at one time apparently in con- flict with the weight of authority, but it seems probable that a recent decision has practically overruled the previous cases. In Hastings v. Central Crosstcwn E. Co.^^^ the court said : "Counsel for the plaintiff insists that negligence is to be imputed to the defendant from the mere fact that the car left the track, upon the authority of Edgerton v. Xew York & II. E. Co.^^^ and subsequent cases to the same effect ; but the rule applied in that case refers altogether to steam railways, and to cases where not only the vehicles, but the tracks, are within the entire control of the defendant. It would be grossly unjust to extend that rule to street rail- way companies, which have not exclusive control over their tracks or the roadway, but whose tracks are daily used by thousands of other vehicles, and are placed in public streets under the control of the city authorities, and in which work is constantly being done on or under the roadways and tracks." 287 6 Ohio Cir. Ct. R. 155. 288 7 App. Div. (N. Y.) 312. 289 39 N. Y. 227. (116) Ch. 3] ACCIDENTS WHILE ON CAR. § 52 In Stevenson v. Second Ave. R. Co. ^"'^ tlie court explained that the Hastings Case did not decide that the mere derail- ment of a street car is not sufficient proof prima facie of negligence, and that what the court said merely had refer- ence to the claim made by counsel that the Edgerton Case was in point, and was merely meant to illustrate that the rule applicable to steam railroads should not in every case, and as a matter of law, be applied to street railroads ; but in Ilollahan v. Metropolitan St. Ey. Co.^^^ the court apparently followed the Hastings Case, and in Ramson v. Metropolitan St. E. Co.^"^ the court, while holding that derailment from a collision with a barrel justified an inference of negligence, cited the Stevenson Case as authority for the proposition that mere derailment is not enough to justify such inference. In Adams v. Union Ry. Co.^^^*^ the court went over all the cases, and decided that, whatever the rule may be in cases of horse cars, in cases of cars moved by electricity or mechanical power derailment does raise a presumption of negligence, as in the case of steam railroads, distinguishing the previous cases on the ground that they were cases of horse cars. Proof of a latent defect in a wheel is not necessarily a defense where the jury might have found the derailment occurred from the xmlawful speed of the car.^**^ Where the company was negligent, and the car ran off the tracks, riding upon the platform was held not to be the proximate cause.^*^ 20035 App. Div. (N. y.) 474. 20173 App. Div. (N. Y.) 164. 292 78 App. Div. (N. Y.) 101. 292a 80 App. Div. (N. Y.) 136. 293 Johnsen v. Oakland, S. L. & H. Electric Ry. Co., 127 Cal. 608. 294 Vail V. Cincinnati Inclined Plane Ry. Co., 7 Ohio Circ. Dec. 28. (117) § 52 STKEFT RAILWAY ACCIDENT LAW. [Ch. 3 Where a car going in the wrong direction hit a frog, and ran off the track, there was held to be no negligence in the construction of the tracks, but negligence in driving too fast was for the jury.^^^ Evidence of high speed and the presence of crushed rock on the track justifies the jury in finding negligence. ^"''^ The company must adopt and use all approved appliances which are in general use, and necessary for the safety of passengers, and need not provide "all known and approved machinery necessary to protect passengers. "^^^ Any presumption of negligence is rebutted by testimony that there was a perfect track, car, and harness in good re- pair, gentle horses, and a skillful driver, alert and at his post, but that a man with a bundle jumped suddenly from an express wagon, and frightened the horses.^^^ Whether a stone wholly or partly covered with snow and slush, and lying between the tracks, could have been discovered in time to prevent derailment, is for the jury.^^^ Where the horses on a car became frightened, and the ear was derailed, negligence was held to be for the jury.^^®^ Eunning a car down hill at high speed when there is a curve and a ravine at the bottom is negligence.^®®'^ 296 White V. Milwaukee City Ry. Co., 61 Wis. 536. 295a Smith V. Milwaukee Elec. Ry. & Light Co. (Wis.) 96 N. W. 823. 2»6Witsell V. West Asheville & S. S. Ry. Co., 120 N. C. 557. 297 Perry v. Malarin, 107 Cal. 363. 298 Dusenbury v. North Hudson County Ry. Co., 66 N. J. Law, 44. 298aDoolln V. Omnibus Cable Co. (Cal.) 73 Pac. 1060. 298b South Covington & C. St. Ry. Co. v. Constans (Ky.) 74 S. W. 705. (118) Ch. 3] ACCIDENTS WHILE ON CAR. § 53 The company is responsible for a latent defect discover- able during manufacture, but not after the car came into their hands.^^" § 53. Collision between two street cars. A collision on the same track between two street cars of the same line establishes a prima facie case of negligence f'^°' and the rule is the same where a car collided with another, which was being shifted from one track to another.^"^ Where a collision occurs between cars of different lines, the pre- sumption of negligence does not arise in respect to the car on which the plaintiff is not a passenger ;^°^ for the com- pany owning the car on which the plaintiff is a passenger is held to a high degree of care, while the owners of the other car owe to the plaintiff only the duty of ordinary care.^"^ The presumption of negligence does arise, however,, against the owner of the car on which the plaintiff is a pas- senger, as in the case of cars of the same line.^"* Numerous rulings have been made as to the right of way of cars at the intersection of the tracks. Where an electric 293 Siemsen v. Oakland, S. L. & H. Electric Ry. Co., 134 Cal. 494. 300 Carter v. Kansas City Cable Ry. Co., 42 Fed. 37; North Chi- cago St. Ry. Co. V. Cotton, 140 111. 486; North Chicago St. Ry. Co. V. Cotton, 41 111. App. 311; North Chicago St. R. Co. v. Boyd, 57 111. App. 535; Smith v. St. Paul City Ry. Co., 32 Minn. 1; Hamilton v. Great Palls St. Ry. Co., 17 Mont. 334; Anderson v. Brooklyn Heights R. Co., 32 App. Div. (N. Y.) 266; Madara v. Shamokin & M. C. Elec- tric Ry. Co., 192 Pa. 542; Palmer v. Warren St. Ry. Co. (Pa.) 56 Atl. 49. 301 Kay V. Metropolitan St. Ry. Co., 29 App. Div. (N. T.) 466. 302 Tompkins v. Clay St. R. Co., 66 Cal. 163; Falke v. Third Ave. R. Co., 38 App. Div. (N. Y.) 49. S03 O'Rourke v. Llndell Ry. Co., 142 Mo. 342. 304 Osgood V. Los Angeles Traction Co., 137 Cal. 280. (119) § 53 STREET RAILWAY ACCIDENT LAW. [Ch. 3 car and a cable car collided at a crossing, and it appeared that the companies jointly employed a flagman to direct the crossing of the cars by signals, it was held error to instruct the jury that if the flagman signaled the cable car to come forward, it had the right to proceed, although the gripman could see that the electric ear was approaching the cross- jjjg 305 jj^ Metropolitan K. Co. v. Hammett'*"'^ it was held that, where two street car lines intersect, the last car should atop, and let the other pass; that an electric car has no right of way over a horse car, and that the driver of the horse car has a right to suppose that the electric car is moving at lawful speed, and will look out for him if he gets to the crossing first. Even though one car, from its position prior to the collision, has the right of way, it must nevertheless sacrifice it to avoid the danger of a collision.^"'' A carrier of passengers has no right to experiment at the risk of those whom he carries,*"" and great care is required of street railway companies in the operation of parallel lines within a few feet of each other.*"' In Wynne v. Atlantic Ave. R. Co.,*^" where a passenger was injured in a collision, there was held to be sufficient evidence of negligence on the part of the driver of the car colliding with that on which he was a passenger. 305 Taylor v. Grand Ave. Ry. Co., 137 Mo. 363. 306 13 App. D. C. 370. 307 Loudoun v. Eighth Ave. R. Co., 16 App. Div. (N. Y.) 152; Zlm- mer v. Third Ave. R. Co., 36 App. Dlv. (N. Y.) 265. 308 Barrett v. Third Ave. R. Co., 45 N. Y. 628. 309 West Chicago St. R. Co. v. Yund, 68 III. App. 609. 310 14 Misc. Rep. (N. Y.) 394. (120) Ch. 3] ACCIDENTS WHILE ON CAR. § 53 In Snediker v. Nassau Electric E. Co.,*'^ where a car col- lided with a car which had just come into collision with a wagon, and there was evidence that the motorman did all in his power to avoid a collision, the jury were held to be justified in finding no negligence. In Blanchette v. Holyoke St. Ey. Co.,*** where there were frequent curves, and a conductor, when his trolley came off, gave no warning to a car which he knew was approaching from the rear, there was held to be sufficient evidence of negligence. A passenger in sudden peril is not held to the usual stand- ard of care ; but if a passenger acts rashly, thinking there is danger when there is none, he cannot recover.^-'^ In the case of a collision it was held that the fact that a passenger rode on the rear platform with his hand over the dasher did not contribute to the injury as a matter of law;*** and in Thirteenth & F. St. Passenger Ey. v. Boudrou**^ it was held that the fact that a passenger was riding on the rear platform when struck by the pole of another car was a con- dition, and not the cause of the injury. The negligence of a driver of a street car cannot be imputed to a passenger.*^* 811 41 App. Div. (N. Y.) 628. 312 175 Mass. 51. 313 Birmingham R. & E. Co. v. Butler, 135 Ala. 388; Quinn v. Shamokin & M. C. Electric Ry. Co., 7 Pa. Super. Ct. 19; Palmer V. Warren St. Ry. Co. (Pa.) 56 Atl. 49; Wade v. Columbia Electric St. Ry. L. & P. Co., 51 S. C. 296. 814 Seigel V. Eisen, 41 Cal. 109. 315 92 Pa. 475. 316 Newport St. R. Co. v. Johnson, 2 Ky. Law Rep. 225 ; Taylor V. Grand Ave. Ry. Co., 137 Mo. 363; Kuttner v. Lindell Ry. Co., 29 Mo. App. 502. (121) § 54 STREET RAILWAY ACCIDENT LAW. [Ch.3 Evidence that tlie driver of a street car was driving rap- idly on a foggy morning, and heard the bell of another car twenty-five or thirty feet from the street crossing, warrants the submission of negligence to the jury.^-'^ A street car com- pany is negligent where the trolley came off, the lights went out, the motorman and conductor did not look for an ap- proaching car, and a collision ensued.^'* If a street car company used all reasonable care in the manufacture and inspection of the machinery of its cars, it is not liable for a latent defect in a grip.^^® In a number of cases negligence has been held to be a question for the jury.^^" Where a collision results from the negligence of both companies, they can be sued jointly.^^' § 54. Collision between street car and wagon. Where a team and a car each tried to reach a bridge- ahead of the other, the fact that a city ordinance gave the car the right of way as against a private team is no excuse for the company, since it was its duty to avoid a collision, and then to seek a remedy for violation of the ordinance."-- 317 Hourney v. Brooklyn City R. Co., 7 N. Y. Supp. 602. 318 Kehoe v. Allentown & L. V. Traction Co., 187 Pa. 474. 310 Carter v. Kansas City Cable Ry. Co., 42 Fed. 37. 32oKuttner v. Lindell Ry. Co., 29 Mo. App. 502; Schneider v. Second Ave. R. Co., 59 N. Y. Super. Ct. 536; Goorin v. Allegheny Traction Co., 179 Pa. 327; Quinn v. Shamokin & M. C. Electric Ry. Co., 7 Pa. Super. Ct. 19. 321 Tompkins v. Clay St. R. Co., 66 Cal. 163; West Chicago St. R. Co. V. Piper, 165 111. 325; West Chicago St. R. Co. v. Yund, 68 111. App. 609; Barrett v. Third Ave. R. Co., 45 N. Y. 628; Schneider v. Second Ave. R. Co., 59 N. Y. Super. Ct. 536. 322 Rend V. Chicago West Div. Ry. Co., 8 111. App. 517. (122) Ch. 3J ACCIDENTS WHILE ON CAR. § S+ A hook and ladder on the way to a fire has a right of way over a street car, and a collision establishes a prima facie case of negligence on the part of the eompany.^^^ It has been held that the mere fact of a collision between a street car and a wagon raises no presumption of negligence against the company.^^* The negligence of the driver of a car cannot be imputed to a passenger. ^-^ Lack of due care cannot be imputed to a passenger because he assumes an attitude to which the con- struction of the car invites him, and it is not his duty to look out for collisions with passing teams.^"'' A passenger placed in sudden peril is not held to the usual standard of care.^^' It is well settled that a gripman or a motorman must do all that he reasonably can to avoid collision,^'® and a grip- man is liable not only for what he saw and heard, but for what he should have seen and heard.^^^ Where a street car was being driven at unlawful speed, and was struck by the pole of a truck, which penetrated the front of the car, there was held to be evidence of negligence f^" and where a passenger on a cable car whose curtains were drawn down 323 Olsen v. Citizens' Ry. Co., 152 Mo. 426. 324 Chicago City Ry. Co. v. Rood, 163 III. 477; Federal St. & P. V. Ry. Co. V. Gibson, 96 Pa. 83. 325 Transfer Co. v. Kelly, 36 Ohio St. 86. 326 Chicago City Ry. Co. v. Rood, 62 111. App. 550. 327 West Chicago St. R. Co. v. McNulty, 166 111. 203; Wanzer v. Chippewa Valley Electric R. Co., 108 Wis. S19. 328 West Chicago St. R. Co. v. Williams, 87 111. App. 548; Mem- phis St. R. Co. V. Norris, 108 Tenn, 632; Sears v. Seattle Consol. St. Ry. Co., 6 Wash. 227. 829 Parker v. Metropolitan St. Ry. Co., 69 Mo. App. 54. 330 Hill V. Ninth Ave. R. Co., 109 N. Y. 239. (123) I 54 STREET RAILWAY ACCIDENT LAW. [Ch. 3 to keep out the rain was injured by the shaft of a wagon coming into the ear, the negligence of the gripman was held to be for the jury f^^ but where the driver of a wagon sud- denly turned, so that projecting lumber went through a window and injured the plaintiff, there was held to be no negligence, even assuming unusual speed.^^^ Where a trunk fell from a truck and injured a passenger, negligence was held to be for the jury.^*^ [ In a number of cases negligence was held to be for the jury.^''* The negligence of a third person will not excuse the company,^^^ and the company is not necessarily excused because of a wagon striking a car instead of a car striking a wagon.^^® The company was held, in West Chicago St. E. Co. V. Tuerk,^*^ not to be entitled to an instruction that failure to ring a gong was not negligence as a matter of law. 33J Potts V. Chicago City Ry. Co., 33 Fed. 610. 332 Alexander v. Rochester City & B. R. Co., 128 N. Y. 13. 333 Suse V. Metropolitan St. Ry. Co., 80 App. Div. (N. Y.) 24. 334 Mt. Adams & E. P. I. Ry. Co. v. Lowery, 74 Fed. 463 ; Cook v. Clay St. Hill R. Co., 60 Cal. 604; Chicago City Ry. Co. v. Anderson, 80 111. App. 71; West Chicago St. R. Co. v. Carr, 170 111. 478; Watklns v. Atlantic Ave. R. Co., 20 Hun (N. Y.) 237; Seidlinger v. Brooklyn City R. Co., 28 Hun (N. Y.) 503; Hurley v. New York & B. Brew. Co., 13 App. Div. (N. Y.) 167; Coulahan v. Metropolitan St. Ry. Co., 28 App. Div. (N. Y.) 394; Fox v. Brooklyn City R. Co., 7 Misc. Rep. (N. Y.) 285; Devlin v. Atlantic Ave. R. Co., 57 Hun (N. Y.) 591; Kreuzen v. Forty-Second St., M. & St. N. Ave. R. Co., 13 N. Y. Supp. 588; Heucke v. Milwaukee City Ry. Co., 69 Wis. 401; Wanzer v. Chippewa Valley Electric R. Co., 108 Wis. 319. 335 West Chicago St. R. Co. v. Tuerk, 90 111. App. 105. 336Keegan v. Third Ave. R. Co., 34 App. Div. (N. Y.) 297. 337 193 111. 385. (124) Ch. 3] ACCIDENTS WHILE ON CAR. § SS Where a motorman did all in his power to avoid a sud- den collision, there was held to be no negligence.*^* In Regensburg v. Nassau Electric E. Co.**^ it was held that a motorman must use a very high degree of care to avoid a collision with a runaway. Where a conductor injured a pas- senger to avoid a suddenly threatened collision, it was held that, as he was confronted with a sudden emergency, there was no negligence.*'"' § 55. Collision between street car and steam railroad. The negligence of the driver of a car cannot be imputed to a passenger.**^ A person placed in sudden peril is not held to the usual standard of care;**^ and where the gripman of a car tried to cross ahead of a railroad train, and a pias- senger jumped to avoid injury, the question of proximate cause was held to be for the jury.*** A passenger on a street car approaching a railroad crossing is under no obliga- tion to look and listen for an approaching locomotive, and to jump off the car in fear of a collision.*** 338 Cleveland City Ry. Co. v. Osborn, 66 Ohio St. 45. 338 58 App. Div. (N. Y.) 566. 340 Kantrowitz v. Metropolitan St. Ry. Co., 63 App. Div. (N. Y.) 65. 341 Georgia Pae. Ry. Co. v. Hughes, 87 Ala. 610 ; Railway Co. v. Harrell, 58 Ark. 454; Wobdiey v. Baltimore & P. R. Co., 19 D. C. 542; Holzab V. New Orleans & C. R. Co., 38 La. Ann. 185; Bernett v. New Jersey R. & T. Co., 36 N. J. Law, 225; Downey v. Philadelphia Traction Co., 14 Pa. Co. Ct. R. 251. 342 Selma St. & Suburban Ry. Co. v. Owen, 132 AJa. 420; Shan- kenbery v. Metropolitan St. Ry. Co., 46 Fed. 177; Kleiber v. People's Ry. Co., 107 Mo. 240. 343 Blschoff V. People's Ry. Co., 121 Mo. 216; Twomley v. Central Park, N. & B. R. R. Co., 69 N. Y. 158; Robson v. Nassau Electric R. Co., 80 App. Div. (N. Y.) 301. 344 O'Toole V. Pittsburgh & L. E. R. Co., 158 Pa. 99. (125) § 55 STREET RAILWAY ACCIDENT LAW. [Ch. 3 A collision between a street car and a steam railroad is held to raise a presumption of negligence against the street railroad company,^*^ but not against the steam railroad.^*^ Where the view of the crossing is obstructed, it is the duty of the driver to stop his car and go ahead, when there is no conductor on board.^""^ The direction of a flagman at a cross- ing is not enough if the motorman of an electric car should have suspected danger; and where a statute provided that a street car should stop before crossing a steam railroad track, and that some one should go ahead and see that the track was clear, the fact that the gates were not down, and that a watchman signaled the car to come ahead, will not excuse the company for not sending a man ahead. ^''^ It is negligence for the driver of a street car not to stop before crossing a steam railroad track, as required by ordinance,^'"' and not to look and listen before crossing.^^" Where the driver of a horse car saw a steam railroad train approach- ing at a crossing, but attempted to cross, and was caught between the gates, there was held to be no negligence on the part of the company.*^^ The company is not liable where a motorman attempts to cross in front of a steam rail- S'ls Railway Co. v. Harrell, 58 Ark. 454; West Chicago St. R. Co. V. Martin, 154 111. 523; Chicago City Ry. Co. v. Engel, 35 111. App. 490; Central Passenger Ry. Co. v. Kuhn, 86 Ky. 578; Central Passenger Ry. Co. v. Bishop, 9 Ky. Law Rep. 348; People's Passenger Ry. Co. V. Weiller, 17 Wkly. Notes Cas. (Pa.) 306. 340 Railway Co. v. Harrell, 58 Ark. 454. 347 Central Passenger Ry. Co. v. Kuhn, 86 Ky. 578. 348 Philadelphia & R. R. Co. v. Boyer, 97 Pa. 91. 349 Cincinnati St. Ry. Co. v. Murray, 53 Ohio St. 570. 350 Selma St. & Suburban Ry. Co. v. Owen, 132 Ala. 420. 351 Washington & G. R. Co. v. Hickey, 166 U. S. 521. (126) Ch. 3] ACCIDENTS WHILE ON CAR. § 55 road train at a crossing, if there would have been no danger except for the unforeseen obstruction of the car by a wagon.^^^ The company is not liable for injuries caused by a sudden lurch of the car, when the motorman was doing all in his pow- er to avoid a coUision.^^^ The company was held liable where there was a steep grade near a crossing, and there was only a motorman in charge of the car.^^* If a street car and a steam railroad are both negligent, they can be sued jointly.^^^ In Schneider v. Second Ave. E. Co.,^^® negligence was held to be for the jury. The fact that the driver of a street car has been ordered to obey the signals of the flagman at the crossing, and he does so, does not make the flagman an agent of the street railroad com- pany.^^^ Whether it is negligence not to have a flagman at a crossing is a question for the jury.^^* Where a locomo- tive gives no signal, those in charge of an electric car have no right to assume it will stop, and thus risk the lives of the passengers by keeping on.^^^ 352 Shankenbery v. Metropolitan St. Ry. Co., 46 Fed. 177. 353 CorkWII v. Camden & S. Ry. Co. (N. J. Law) 54 Atl. 522. 354 Russell V. Shreveport Belt Ry. Co., 50 La. Ann. 501; Flournoy V. Shreveport Belt Ry. Co., 50 La. Ann. 635. 355 Washington & G. R. Co. v. Hickey, 12 App. D. C. 269; Matthews v. Delaware, L. & W. R. Co., 56 N. J. Law, 34; O'TooIe v. Pittsburgh & L. B. R. Co., 158 Pa. 99; Downey v. Philadelphia Traction Co., 14 Pa. Co. Ct. R. 251. 356 133 N. Y. 583. 357 Chicago Ry. Co. v. Volk, 45 111. 175. 358 Jacquin v. Grand Ave. Cable Co., 57 Mo. App. 320. 350 Hammond, W. &. B. C. Electric Ry. Co. v. Spyzchalski, 17 Ind. App. 7. (127) § 56 STRF.ET RAILWAY ACCIDENT LAW. [Ch. 3 § 56. Jerk. Where a passenger is injured by an unusual or extraordi- nary jerk, this has been held to establish a prima facie case of negligence on the part of the company, — as, for in- stance, where a cable car was stopped so suddenly that it threw a passenger from her seat, and broke the glass in the car windows ;^^'' where a car gave such a jerk that the plain- tiff was thrown from her seat ;^®^ where there was an unusual movement of the car, which threw the passengers first for- ward and then backwards ;^®^ where a car was started with an unusual jerk, which threw a passenger against a car win- Jq^.363 gjj^ where the jerk was sufficient to throw off a passenger who had gone to the rear door preparatory to alighting.^^* In Dougherty v. Missouri E. Co.^"^ the rule was held to be that, where the conveyance is shown to be under the control of the carrier, and an accident is such as does not happen in the ordinary course of things if those in charge use proper care, it affords reasonabla evidence, in the absence of explanation, that the accident arose from want of care ; and in West Chicago St. E. Co. v. Kennelly^** the rule was more broadly stated to be that, where a pas- senger on a train, while exercising ordinary care for his own 360 Clow V. Pittsburgh Traction Co., 158 Pa. 410. 301 North Chicago St. R. Co. v. Schwartz, 82 111. App. 493; Mur- phy V. Coney Island & B. R. Co., 36 Hun (N. Y.) 199; Smedley v. Hestonville, M. & P. P. Ry. Co., 184 Pa. 620. 302 Dixey v. Philadelphia Traction Co., 180 Pa. 401. 363 Dougherty v. Missouri Pac. R. Co., 9 Mo. App. 478. 304 Birmingham Union Ry. Co. v. Hale, 90 Ala. 8 ; Consolidated Traction Co. v. Thalheimer, 59 N. J. Law, 474. 306 81 Mo. 325. 386 66 111. App. 244. (128) Ch. 3] ACCIDENTS WHILE ON CAR. § 56 safety, is injured by the operation of the road, the burden of showing that the injury was not due to negligence is upon the defendant. To establish such a prima facie case of negligence, how- ever, it must appear that the jerk was an unusual or ex- traordinary one.^^^ In Bartley v. Metropolitan St. Ky. Co.^"^ the court said: "It is a matter of common knowledge, of which even the court is not ignorant, as well as a matter of physics, that the rope of a cable railroad cannot be kept taut, and that the jerks, which are common and unavoidable to such roads, are caused by a slack in the rope being taken up. In order to recover from the cable railroad, it is not enough to show that there was a jerk, but it must affirmative- ly appear that the jerk was an extraordinary or unusual one, or attributable to a defect in the track, an imperfection in the car or apparatus, or to a dangerovis rate of speed, or to unskillful handling of the car by the gripman." Similarly, it has been held that there must be some jerk when a horse car is started, and that there is no negligence in a sudden movement of the ear under these circumstances,^®^ and that it is not negligence to whip the horses in starting a car, un- less there is something unusual in the process.^ '^'' A passenger on a street car takes the risk of the usual and necessary movements of an electric car,^'^-' and the com- 387 Adams v. WasMngton & G. R. Co., 9 App. D. C. 26; Jackson- ville St. Ry. Co. v. Chappell, 21 Fla. 175; Pryor v. Metropolitan St. Ry. Co., 85 Mo. App. 367. 368 148 Mo. 124. 309 Hayes v. Forty-Second St. & G. St. Ferry R. Co., 97 N. Y. 259. 370 Rochat v. North Hudson County Ry. Co., 49 N. J. Law, 445. 371 Byron v. Lynn & B. R. Co., 177 Mass. 303; Timms v. Old Col- ony St. Ry. Co. (Mass.) 66 N. E. 797; Bruce v. Brooklyn Heights R. (129) Ry. Ace. — 9. g 56 STREET RAILWAY ACCIDENT LAW. [Ch. 3 pany is not liable for an injury to a passenger on an electric car while rounding a curve, unless the speed is excessive, and more power is used than necessary.^'' ^ The fact that a passenger was so violently twisted as to be injured does not of itself show an excessive use of electric power f^ and the mere fact that a passenger is injured by another passenger being thrown upon him as the car rounds a curve is not enough to justify a recovery.*^* In the case of a cable car there was held to be no negligence where a passenger was injured by a jerk which was a necessary incident in rounding a curve because of the slack of the rope.^'^^ Where a street car stops suddenly for some unknown reason, this raises no pre- sumption of negligence f^ and where a passenger was jerked from a car and run over, it was held that even if the con- ductor was negligent, this was not the proximate cause of the injury.*^^ Where the driver was the only person in charge of a car, and he left the platform to collect fares, and the horses started suddenly, and jerked a boy of ten off the front plat- form, this was held to be the grossest negligence.^^^ The rate of speed of a car is immaterial where it is acknowledged Co., 68 App. Div. (N. Y.) 242; Nies v. Brooklyn Heights R. Co., 08 App. Div. (N. Y.) 259. 372Brennan v. Brooklyn Heights R. Co., 12 Misc. Rep. (N. Y.) 570; Zimmer v. Fox River Vallfty Electric Ry. Co. (Wis.) 95 N. W. 957. 373 Ayers v. Rochester Ry. Co., 156 N. Y. 104. 374 Merrill v. Metropolitan St. Ry. Co., 73 App. Div. (N. Y.) 401. 375 Hite v. Metropolitan St. Ry. Co., 130 Mo. 132. 376 Hoffman v. Third Ave. R. Co., 45 App. Div. (N. Y.) 586. 377 South Side Passenger Hy. Co. v. Trich, 117 Pa. 390. 378 Saare v. Union Ry. Co., 20 Mo. App. 211. (130) Ch. 3] ACCIDENTS WHILE ON CAR. § 57 to be improper ;^^^ and if a method of starting a street car is in fact unsafe, the custom of the company in starting their cars, or what they think is a reasonably safe method in such starting, will notconstitute a defense.^ ^" There have been numerous cases where the negligence of the company in causing the car to give a sudden jerk has been held to be for the jury. Such eases are where the jerk is due to the management of the brake,^^^ where the car strikes a switch,^*^ where there is something unusual about the method of starting, as, for instance, where a horse plunged under the blows of the whip,^*^ where a team of eight mules was employed to start a balky horse,^** and where the jerk was such as to disturb the equilibrium of the pas- sengers.^*^ § 57. Speed of ear. There has been held to be sufficient evidence of negligence to go to the jury in the following cases: Where there was 3T9 Gidionsen v. Union Depot R. Co., 129 Mo. 392. 3S0 Dickert v. Salt Lake City R. Co., 20 Utali, 394. 381 Etnon V. Ft. Wayne & B. I. Ry. Co., 114 Mich. 605; Bradley V. Second Ave. R. Co., 34 App. Div. (N. Y.) 284; Murray v. Brooklyn City R. Co., 7 N. Y. Supp. 900; Medler v. Atlantic Ave. R. Co., 12 N. Y. Supp. 930. 382Holloway v. Pasadena & P. Ry. Co., 130 Cal. 177; Sweetland V. Lynn & B. R. Co., 177 Mass. 574; Seelig v. Metropolitan St. Ry. Co., 18 Misc. Rep. (N. Y.) 383. 383 Eberhardt v. Metropolitan St. Ry. Co., 69 App. Div. (N. Y.) 560; Nolan V. Brooklyn City & N. R. Co., 87 N. Y. 63. 384 Continental Passenger Ry. Co. v. Swain, 13 Wkly. Notes Cas. (Pa.) 41. 385 Samuels v. California St. Cable Ry. Co., 124 Cal. 294; Francisco V. Troy & L. R. Co., 88 Hun (N. Y.) 464; Lansing v. Coney Island & B R Co., 16 App. Div. (N. Y.) 146; Grotsch v. Steinway Ry. Co., (131) g 57 STREET RAILWAY ACCIDENT LAW. [Ch. 3 evidence that a car was running around a curve at from seven to fifteen miles an hour, and the conductor admitted that it V7as not safe to run more than five miles an hour;^*® u'here a car v^as running at from tvpelve to fifteen miles an hour,^*'' and there was a rule that it must not cross a switch at more than four miles an hour; where a driver ran a car down hill at unusual speed while approaching a switch which he knew to be dangerous ;^^^ where a car was being driven rapidly when moving in a direction opposite from the usual one f^^ and where a car was running fifteen or twenty miles an hour around a sharp curve.^®" Where an electric car was rocking and pitching at a fearful rate, the court held that, upon all the evidence, the car was moving at a reckless rate of speed. ^°^ The speed at which a car is going is imma- terial where it is acknowledged to be improper ;^^^ but the fact that horses were going at unusual but not dangerous speed does not tend to prove negligence ;^^^ and while excessive and unlawful speed shows negligence, it does not of itself show that such rate of speed was the proximate cause of the 19 App. Div. (N. Y.) 130; Dillon v. Forty-Second St., M. & St. N. Ave. Ry. Co., 28 App. Div. (N. Y.) 404; Dochtermann v. Brook- lyn Heights R. Co., 32 App. Div. (N. Y.) 13, affirmed 164 N. Y. 586; Hassen v. Nassau Electric R. Co., 34 App. Div. (N. Y.) 71; Rip- ley V. Second Ave. R. Co., 8 Misc. Rep. (N. Y.) 449; Sheeron v. Coney Island & B. R. Co., 78 App. Div. (N. Y.) 476. 386 Bast Omaha St. Ry. Co. v. Godola, 50 Neb. 906. 357 Sweetland v. Lynn & B. R. Co., 177 Mass. 574. 358 Seelig v. Metropolitan St. Ry. Co., 18 Misc. Rep. (N. Y.) 383. 388 White v. Milwaukee City Ry. Co., 61 Wis. 536. 300 Reber v. Pittsburg & B. Traction Co., 179 Pa. 339. 301 Elgin City Ry. Co. v. Wilson, 56 111. App. 364. 302 Gidionsen v. Union Depot R. Co., 129 Mo. 392. 303 Perry v. Malarin, 107 Cal. 363. (132) Ch. 3] ACCIDENTS V/HILE ON CAR. j$ 53 accident. ^^* In an action for rnnning a car at too great speed, there must bo some evidence that the rate of speed is unusual, improper, or dangerous, and the jury cannot fix such rate of speed without evidence.^"^ To run a train faster than an ordinance allows has been held negligence per se."°' To run at high speed on a down grade when there is snow on the tracks is negligence.^^^ It is evidence of negligence to run fifteen miles an hour in the fog.^*'^ § 58. Miscellaneous, negligence in operation. Where a driver, while frightening away some boys, broke a window and injured a passenger, his negligence was held to be for the jury.^^* It is negligence to shut the door so as to cut off the finger of a passenger leaving the car.^®^ Where a conductor pulled a woman from a car, and her hand caught in the door, there was held to be sufiicient evidence of negli- gence.*"" A city ordinance requiring a street railway com- pany to have both a driver and a conductor on each of its cars is a proper regulation.*"^ In Valentine v. Middlesex E. 00.,*"^ and in Edlund v. St. Paul City Ey. Co.,*"^ — cases of accidents during repairs on the track, — ^negligence was held to be for the jury. Where 894 Johnsen v. Oakland, S. L. & H. Electric Ry. Co., 127 Gal. 608. 896 Francisco v. Troy & L. R. Co., 78 Hun (N. Y.) 13. 396 Weber v. Kansas City Cable Ry. Co., 100 Mo. 194. 897 Danville St. Car. Co. v. Payne (Va.) 24 S. E. 904. 397a Fisher v. Union Ry. Co., 86 App. Div. (N. Y.) 365. 898 Allen V. Galveston City Ry. Co., 79 Tex. 631. 399 McGlynn v. Brooklyn Crosstown R. Co., 6 N. Y. State Rep. 51, 400 Mackin v. People's St. Ry. & B. L. & P. Co., 45 Mo. App. 82. 401 South Covington & C. St. Ry. Co. v. Berry, 93 Ky. 43. 402 137 Mass. 28. 403 78 Minn. 434. (133) § 58 STREET RAILWAY ACCIDENT LAW. [Ch. 3 a city placed a cable across the company's tracks, and al- lowed it to slacken, so that it caught the trolley, and killed a passenger, it was held that there was no negligence on the part of the company, and that it was immaterial that the conductor was inside the car, when he should have been on the rear platform.*"* Where the track was torn up, and a motorman invited a woman to leave by the front door, and she fell within a few steps of the car, negligence was held to be for the jury, where it appeared that the ground was broken, and that it was a dark night.*"^ In Smedley v. Hes- tonville, M. & F. P. Ey. Co.,*"® where a street was dug up, and the wheels of a car dropped when the car was passing from the new to the old rails, a verdict for the plaintiff was held to be justified. In the case of an injury from an iron manhole cover between the tracks, it was held that, in cases of latent defects, the question is not whether the company did know of such defects, but whether it should have known of them.*"^ It is negligent to run cars over a palpably de- fective place, and a plaintiff has a right to presume that all due precautions have been taken.*"* Where a motorman ran a car into a pile of bricks in spite of the warning of a man in the street, there was held to be evidence of negligence, and a judgment of nonsuit was reversed;*"® and to drive into an excavation in spite of a warning has been held to be negligence.*^" Where a passenger fell off a car, and the 404 Baltimore Consol. Ry. Co. v. State, 91 Md. 506. *06 Sowash V. Consolidated Traction Co., 188 Pa. 618. 406 184 Pa. 620. 407 West Chicago St. R. Co. v. Stephens, 66 111. App. 303. 408 Citizens' St. Ry. Co. v. Twiname, 111 Ind. 587. 409 Buehler v. Union Traction Co., 200 Pa. 177. 410 Daub V. Yonkers R. Co., 69 Hun (N. Y.) 138. (134) Ch. 3] ACCIDENTS WHILE ON CAR. § 58 servants in charge of the car knew that he was holding onto an iron rail to save himself from being run over, it is culpa- ble negligence not to stop the car.''^^ Where a passenger was injured by a runaway, there was held to be no evidence of negligence.*'^ A street railway company must use reasonable care in selecting its horses, and the company is responsible for what- ever the driver finds out about them.*'^ Where a pair of horses, which had worked satisfactorily for six weeks, ran away, there was held to be no negligence.^'* The mere fact that a horse had once run away does not show negligence.*'^ In Lynch v. Brooklyn City E. Co.*'^ it was held that, whether the horses were frightened by a blast, or because the driver let the whiffle-tree fall on their ankles, was a question for the jury. Where the driver left a car in the street without tying the mules, and they ran away, the company was held liable for an injury to a passenger trying to alight;*''' and where a passenger jumped from a ear while the horses were running away, due care was held to be for the jury.*'* Ex- citement caused by a car backing suddenly down hill is proper to be considered on the question of due care.*'® Where, in passing a switch, one man is needed at each end of the car, and only one man is put in charge of the car, this is 411 Chicago "West Div. Ry. Co. v. Hughes, 69 111. 170. "2 Hamilton v. West End St. Ry. Co., 163 Mass. 199. "3 Noble V. St. Joseph & B. H. St. R. Co., 98 Mich. 249. 414 Quinlan v. Sixth Ave. R. Co., 4 Daly (N. Y.) 487. 415 Perry v. Malarin, 107 Cal. 363. 416 1 Silv. Sup. (N. Y.) 361. 417 Texarkana St. Ry. Co. v. Hart (Tex. Civ. App.) 26 S. W. 435. 418 Dlmmey v. Wheeling & E. G. R. Co., 27 W. Va. 32. 4i9joliet St. Ry. Co. v. McCarthy, 42 111. App. 49. (135) § 58 STREET RAILWAY ACCIDENT LAW. [Ch, 3 conclusive evidence of negligence; and where the man in charge did not stop the car in adjusting the trolley while going around a curve, and fell off, this was held negli- gence.*^** Where a runaway ran into a car and injured a passenger, there was held to be no negligence on the part of the company.*^-*^ The company has been held liable, where a conductor in- sulted a passenger, on the ground of breach of contract, al- though it did not authorize or ratify, but promptly repu- diated, the act.*^^ Where a passenger asked a conductor to stop the car, as she felt sick, he refused, and she fell uncon- scious through the door, due care and negligence were held to be for the jury.*'^ A driver who, on being relieved, is leaving the car to get a meal, is engaged in business of the company, and they are liable for the death of a passenger caused by his gross negligence.*^* It has been held that a municipal ordinance is not bind- ing on the company without proof of its assent thereto,*^^ but see the late cases of Gebhardt v. St. Louis Transit Co.*^® and McLain v. St. Louis & S. Ey. Co.*" Where two companies jointly operated a line partly owned by each, it was held that each was liable for the negligent 420 Redfield v. Oakland Consol. St. Ry. Co., 110 Cal. 277. *2i Hamilton v. West End St. Ry. Co., 163 Mass. 199. *22Knoxville Traction Co. v. Lane, 103 Tenn. 376. 423 Newark & S. O. R. Co. v. McCann, 58 N. J. Law, 642. 424 Commonwealth v. Brockton St. Ry. Co., 143 Mass. 501. 425FatIi V. Tower Grove & L. Ry. Co., 105 Mo. 537; Byington v. St. Lcouls R. Co., 147 Mo. 673; Day v. Citizens' Ry. Co., 81 Mo. App. 471; Hitchcock V. Brooklyn City R. Co., 3 N. Y. Supp. 218. 426 (Mo. App.) 71 S. W. 448. 427 (Mo. App.) 73 S. W. 909. (136) Ch. 3] ACCIDENTS WHILE ON CAR. § 58 operation of the other ;*^^ but in Anderson v. Des Moines St. Ey. Co.*^^ it was held that, where two lines were operated separately, there was no evidence to hold the defendant. In Howard v. Union Traction Co.*^" it was held that a street railway company and a gas company conld not be sued as joint tort feasors, when the plaintiff, in alighting, tripped over a block of wood belonging to the gas company, on the ground that there was no community of fault. Where an accident occurred on a bridge built and maintained by the state, there was held to be no negligence on the part of the street railway company.^^^ A resident of a city must know of an ordinance as to the stopping of cars.*^^ If two tort feasors are both negligent, they are jointly liable;*** but if a plaintiff accepts satisfaction from one joint tort feasor, he cannot sue the other.*** Lessees of a road have been held liable for an injury to a passenger,**^ even though the road was leased unlawful- ly,*** and, on the other hand, the lessor company has been held liable.**^ *28 Richard v. Detroit R., R. & L. 0. Ry. Co. (Mich.) 89 N. W. 52; Messenger v. St. Paul City Ry. Co., 77 Minn. 34. 429 97 Iowa, 739. 430 195 Pa. 391. 431 Birmingham v. Rochester City & B. R. Co., 137 N. Y. 13. 432 Pryor v. Metropolitan St. Ry. Co., 85 Mo. App. 367. 433McGary v. "West Chicago St. R. Co., 85 111. App. 610; Douglass V. Sioux City Ry. Co., 91 Iowa, 94; Taylor v. Grand Ave. Ry. Co., 137 Mo. 363; Schneider v. Second Ave. R. Co., 59 N. Y. Super. Ct. 536; Texas & P. Ry. Co. v. Doherty, 4 Willson, Civ. Cas. Ct. App. § 164. 434 Spurr V. North Hudson County R. Co., 56 N. J. Law, 346. 435 Quested V. Newburyport & A. Horse R. Co., 127 Mass. 204. 436 Peital V. Middlesex R. Co., 109 Mass. 398. 437 Braslin v. Somerville Horse R. Co., 145 Mass. 64. (IST) CHAPTER IV. ACCIDENTS WHILE ALIGHTING PROM CAR. I. Due Caee and Negligence. § 59. Due Care in Alighting from Moving Car in General a Question of Fact. 60. Reasonable Opportunity to Alight. 61. Speed of Car. 62. Manner of Alighting. 63. Age and Physical Condition of Passenger. 64. Sex of Passenger. 65. Incumbered with Bundles. 66. Place of Alighting. 67. Preparatory to Alighting. 68. Notice of Desire to Alight. 69. Alighting in Spite of Warning. 70. Condition of Car. 71. Injury by Fellow Passenger. 72. Miscellaneous. Due Caee and Negligeitce. It is not lack of due care, as a matter of law, to alight from a moving car, whether it is a horse car, an electric car, a cable car, or a car on a dummy line, and whether the attempt is made from the rear platform, the front platform, or the running board. Various circumstances, however, may tend to make the attempt to alight lack of due care as a matter of law, and among these are the speed of the car, the manner of making the attempt, the age, sex, and physical condition of the passenger, whether or not he is incumbered with bundles, his position upon the car, whether or not he gave notice of his desire to alight, whether or not he was warned not to make the attempt, and the condition of the street and car. (138) Ch. 4] ACCIDENTS WHILE ALIGHTING FROM CAR. § 59. If a street car has stopped for a passenger to alight, or has been slowed up to such an extent as to constitute an invitation to alight, a passenger must be given a reasonable opportunity to do so, and to start the car while he is alighting is negligence. The company is not liable for the acts of fellow passengers un- less it could reasonably have prevented them. § 59. Due care in alighting from moving car in general a ques- tion of fact. It is well settled that it cannot be said, as matter of law, that alighting from a moving street car is lack of due care. It is ordinarily left to the jury to say whether or not the passenger acted as a reasonably prudent and cautious man would have acted under like circumstances. This ruling has been made in the case of a horse car,^ an electric ear,^ 1 Brerinan v. Fair Haven & W. R. Co., 45 Conn. 284; Chicago City Ry. Co. V. Mumford, 97 111. 560; Ober v. Crescent City R. Co., 44 La. Ann. 1059; Schaclierl v. St. Paul City Ry. Co., 42 Minn. 42; Fortune V. Missouri R. Co., 10 Mo. App. 252; Duncan v. Wyatt Park Ry. Co., 48 Mo. App. 659; Wyatt v. Citizens' Ry. Co., 55 Mo. 485; New Jersey Traction Co. v. Gardner, 60 N. J. Law, 571; Malsels v. Dry Dock, E. B. & B. St. R., 16 App. Dlv. (N. Y.) 391; Munroe v. Third Ave. R. Co., 50 N. Y. Super. Ct. 114; Crlssey v. Hestonvllle, M. & P. P. Ry. Co., 75 Pa. 83. 2 Denver Tramway Co. v. Reld, 22 Colo. 349; Posten v. Denver Consol. Tramway Co., 11 Colo. App. 187; Betts v. Wilmington City Ry. Co. (Del.) 53 Atl. 358; Springfield Consol. Ry. Co. v. Hoeffner, 175 111. 634; Indianapolis St. Ry. Co. v. Hockett, 159 Ind. 677; Root V. Des Moines City Ry. Co., 113 Iowa, 675; Creamer v. West End St. Ry. Co., 156 Mass. 320; Kelly v. Third Ave. R. Co., 25 App. Dlv. (N. Y.) 603; Patterson v. Westchester Electric Ry. Co., 26 App. Dlv. (N. Y.) 336; Willis v. Metropolitan St. Ry. Co., 63 App. Div. (N. Y.) 332; Harris v. Union Ry. Co., 69 App. Div. (N. Y.) 385; Cunningham v. Dry Dock, B. B. & B. R. Co., 29 Misc. Rep. (N. Y.) 772; Kuhlman v. Metropolitan St. Ry. Co., 30 Misc. Rep. (N. Y.) 417. (139) g 59 ETRIiST RAILWAY ACCIDENT LAW. [Ch. 4 a cable car,^ and a car on a dummy line.* The rule is the same, whether the passenger alights from the rear platform,^ the front platform,* or the running board.^ There are, however, many cases where the court has felt justified in declaring that, under all the circumstances of the case, an attempt to alight from a moving street car is lack of due care as matter of law. In Watkins v. Birmingham E. & E. Co.* the court said: ''There may be, it is true, exceptional circumstances attend- ing the attempt thus to alight, such as the great speed of the train, the age or infirmity of the passenger, or his being in- cumbered with bundles or children, or other facts which ren- der the attempt so obviously dangerous that the court may, wliere the testimony is undisputed, declare, as matter of law, 3 Chicago City Ry. Co. v. Mee'nan, 77 111. App. 215; Weber v. Kan- sas City Cable Ry. Co., 100 Mo. 194; Brown v. Seattle City Ry. Co., 16 Wash. 465. * Watkins v. Birmingham R. & E. Co., 120 Ala. 147; Birming- ham R. & E. Co. V. James, 121 Ala. 120. "Watkins v. Birmingham R. & E. Co., 120 Ala. 147; Birmingham R. & E. Co. V. James, 121 Ala. 120; Posten v. Denver Consol. Tram- way Co., 11 Colo. App. 187; Chicago City Ry. Co. v. Mumford, 97 111. 560; Root v. Des Moines City Ry. Co., 113 Iowa, 675; Fortune v. Missouri R. Co., 10 Mo. App. 252; Duncan v. Wyatt Park Ry. Co., 48 Mo. App. 659; Weber v. Kansas City Cable Ry. Co., 100 Mo. 194; Willis V. Metropolitan St. Ry. Co., 63 App. Div. (N. Y.) 332; Munroe V. Third Ave. R. Co., 50 N. Y. Super. Ct. 114. New Jersey Traction Co. v. Gardner, 60 N. J. Law, 571; Maisels T. Dry Dock, E. B. & B. St. R., 16 App. Div. (N. Y.) 391; Crissey V. Hestonville, M. & P. P. Ry. Co., 75 Pa. 83; Brown v. Seattle City Ry. Co., 16 Wash. 465. ■? Denver Tramway Co. v. Reid, 22 Colo. 349; Chicago City Ry. Co. V. Meehan, 77 111. App. 215; Creamer v. West End St. Ry. Co., 156 Mass. 320. 8 120 Ala. 147. (140) Ch. 4] ACCIDENTS WHILE ALIGHTING FROM CAR. | 60 that the passenger's conduct "was reckless and negligent ;" and in Posten v. Denver Consol. Tramway Co.* the court said : "Chief among these circumstances necessary and important to be considered are the manner in which the act was at- tempted to be performed, and the rate of speed at which the car was moving at the time. If the evidence should dis- close that the passenger was heavily incumbered with pack- ages or bundles, so as to palpably impede his movements, and it could be reasonably inferred that, by reason of tliis, the accident happened, or, if his manner of alighting — by jumping, for instance — ^was such as to clearly indicate that it was the direct cause of the injury, or if the car was run- ning at such a high rate of speed as to make it manifest that the act would probably result in personal injury, it is obvious that a state of facts would have been shown stamp- ing the act as unmistakably negligent, and there would be no necessity for submitting it to a jury for its determina- tion." § 60. Reasonable opportunity to alight. It is well settled that, while a street car company is not an insurer of its passengers against accident,'" it does owe them a very high degree of care.-'-' Consequently, a pas- ell Colo. App. 187. 10 West Chicago St. R. Co. v. Luka, 72 111. App. 60; Gilbert v. West End St. Ry. Co., 160 Mass. 403; New Jersey Traction Co. v. Gardner, 58 N. J. Law, 176. "Washington & G. R. Co. v. Harmon's Adm'r, 147 U. S. 571; City & Suburban Ry. v. Findley, 76 Ga. 311; Atlanta Ry. Co. v. Randall (Ga.) 43 S. B. 412; North Chicago St. R. Co. v. Wrixon, 51 111. App. 307; West Chicago St. R. Co. v. Lyon, 57 111. App. 536; West Chicago St. R. Co. V. Luka, 72 111. App. 60; Conner v. Citizens' St. R. Co., 146 Ind. 430; Ft. Wayne Traction Co. v. Morvilius (Ind. App.) 68 N. (141) § 60 STREET RAILWAY ACCIDENT LAW. [Ch. 4 senger is entitled to a reasonable opportunity to alight, if a street car has stopped for him to do so,^^ or has been slowed up to such an extent as to constitute an invitation E. 304; Root v. Des Moines City Ry. Co., 113 Iowa, 675; Leaven- worth Electric R. Co. v. Cusick, 60 Kan. 590; Metropolitan St. Ry. Co. V. Hanson (Kan.) 72 Pae. 773; Louisville City Ry. v. Weams, 80 Ky. 420; Louisville Ry. Co. v. Park, 96 Ky. 580; Lutz v. Louisville Ry. Co., 20 Ky. Law Rep. 1163; Gilbert v. West End St. Ry. Co., 160 Mass. 403; Weber v. Kansas City Cable Ry. Co., 100 Mo. 194; Cobb v. Lindell Ry. Co., 149 Mo. 135; Grace v. St. Louis R. Co., 156 Mo. 295; Chase v. Jamestown St. Ry. Co., 15 N. Y. Supp. 35; Richmond City Ry. Co. v. Scott, 8'6 Va. 902; Richmond Traction Co. v. Williams (Va.) 46 S. E. 292; Brown v. Seattle City Ry. Co., 16 Wash. 465. 12 Denver Consol. Tramway Co. v. Rush (Colo. App.) 73 Pac. €64; Rouser v. Washington & G. R. Co., 13 App. D. C. 320; Atlanta Ry. Co. V. Randall (Ga.) 43 S. E. 412; Chicago West Div. Ry. Co. v. Mills, 105 111. 63; West Chicago St. R. Co. v. Waniata, 68 111. App. 481; West Chicago St. R. Co. v. Manning, 70 111. App. 239; West Chicago St. R. Co. v. Luka, 72 111. App. 60; Belt Electric Line Co. V. Tomlin, 19 Ky. Law Rep. 433; Lutz v. Louisville Ry. Co., 20 Ky. Law Rep. 1163; Padueah St. Ry. Co. v. Walsh, 22 Ky. Law Rep. 532; Henning v. Louisville Ry. Co. (Ky.) 74 S. W. 209; Wardle v. New Orleans City R. Co., 35 La. Ann. 202; Conway v. New Orleans & C. R. Co., 46 La. Ann. 1429; Finn v. Valley City St. & Cable Ry. Co., 86 Mich. 74; Werbowlsky v. Ft. Wayne & E. Ry. Co., 86 Mich. 236; Britton v. Street Ry. Co., 90 Mich. 159; Selby v. De- troit Ry., 122 Mich. 311; Skelton v. St. Paul City Ry. Co. (Minn.) 92 N. W. 960; Weber v. Kansas City Cable Ry. Co., 100 Mo. 194; Ridenhour v. Kansas City Cable Ry. Co., 102 Mo. 270; Scamell v. St. Louis Transit Co. (Mo. App.) 76 S. W. 660; Fenig v. North Jersey St. Ry. Co., 64 N. J. Law, 715; Mulhado v. Brooklyn City R. Co., 30 N. Y. 370; Poulin v. Broadway & S. A. R. Co., 61 N. Y. 621; Losee v. Watervliet Turnpike & R. Co., 63 Hun (N. Y.) 404; Smith V. Kingston City R. Co., 55 App. Div. (N. Y.) 143; Willis v. Metropolitan St. Ry. Co., 63 App. Div. (N. Y.) 332; Colt v. Sixth Ave. R. Co., 33 N. Y. Super. Ct. 189; Murphy v. Metropolitan St. Ry. Co., 19 Misc. Rep. (N. Y.) 194; Weiss v. Metropolitan St. Ry. (142) Ch. 4] ACCIDEN"TS WHILE ALIGHTING FROM CAR. g 60 to alight,^ ^ and to start the car before the passenger has had a reasonable opportunity to alight is negligence as a matter of law. The rule as to furnishing a reasonable opportunity for alighting is not altered when the car stops, but not at a cus- tomary stopping place ;^* and it has been held that those in charge of a street car, when signaled to stop, must not only give a reasonable time for passengers to alight, but must see and know, before starting again, that no one is alight- ing, or in any other dangerous position,^® and this rule has Co., 29 Misc. Rep. (N. Y.) 332; Scliaefer v. Central Crosstown R. Co., 30 Misc. Rep. (N. Y.) 114; Flanagan v. Metropolitan St. Ry. Co., 31 Misc. Rep. (N. Y.) 820; Brady v. Metropolitan St. Ry. Co., 33 Misc. Rep. (N. Y.) 793; Koues v. Metropolitan St. Ry. Co., 83 N. Y. Supp. 380; Ashtabula Rapid Transit Co. v. Holmes, 67 Ohio St. 153; Mt. Adams & E. P. Ry. Co. v. Wysong, 2 Ohio Dec. 65; Dus- sel V. Akron St. R. Co., 10 Ohio S. & C. P. Dec. 631; Fairmount & A. S. P. Ry. Co. V. Stutler, 54 Pa. 375; Jagger v. People's St. Ry. Co., 180 Pa. 436. 13 Chicago City Ry. Co. v. Mumford, 97 111. 560; Springfield Consol. Ry. Co. V. Hoeffner, 175 111. 634; Currie v. Mendenhall, 77 Minn. 179; Cobb V. Lindell Ry. Co., 149 Mo. 135; Munroe v. Third Ave. R. Co., 50 N. Y. Super. Ct. 114; Rapid Transit Ry. Co. v. Lusk (Tex. Civ. App.) 66 S. W. 799. "Betts V. Wilmington City Ry. Co. (Del.) 53 Atl. 358; Washing- ton & G. R. Co. V. Grant, 11 App. D. C. 107; West Chicago St. R. Co. V. Manning, 170 111. 417; West Chicago St. R. Co. v. Luka, 72 111. App. 60; Root V. Des Moines City Ry. Co., 113 Iowa, 675; Ber- inger v. Dubuque St. Ry. Co. (Iowa) 91 N. W. 931; United Rys. & Elec. Co. V. Hertel (Md.) 55 Atl. 428; United Rys. & Elec. Co. V. Woodbridge (Md.) 55 Atl. 444; Jackson v. Grand Ave. Ry. Co., 118 Mo. 199. 15 Birmingham Union Ry. Co. v. Smith, 90 Ala. 60; Highland Ave. & B. R. Co. V. Burt, 92 Ala. 291; Metropolitan R. Co. v. Jones, 1 App. D. C. 200; Washington & G. R. Co. v. Grant, 11 App. D. C. 107; Chicago City Ry. Co. v. Mumford, 97 111. 560; Chicago West Div. (143) § GO STREET RAILWAY ACCIDENT LAW. [Ch. 4 been held to apply to electric cars running on schedule time outside the city limits, and stopping only at regular stations.^* In Gardner v. Detroit St. Ey. Co.^^ it was held that the fact that a car is started while a passenger is alighting does not shift the burden of proof ; but in Martin v. Second Ave. R. Co.^* it was held that the passenger need not prove what caused the jerk, and that the defendant must show that it was not responsible for it, in order to escape liability. Where a passenger was injured while alighting from a moving street car, it was held that he was not obliged to prove whether he was thrown backwards or forwards ;^^ and a passenger is not prevented from recovering because he was unnecessarily on the front platform, where the driver started the car negligently while he was alighting.^" It is not nec- essary to prove that the car started forward, — ^that it gave a sudden jerk, causing the accident, is sufficient.^' In two instances it has been held that starting a car while a pas- senger is alighting is not negligence as matter of law.*" Where a passenger had a reasonable time in which to change Ry. Co. v. Mills, 105 111. 63; Anderson v. Citizens' St. R. Co., 12 Ind. App. 194; Conner v. Citizens' St. R. Co., 146 Ind. 430; Leavenworth Electric R. Co. v. Cusick, 60 Kan. 590; Asbury v. Charlotte Electric Ry. & Power Co., 125 N. C. 568; Omaha & C. B. R. & B. Co. v. Levinston, 49 Neb. 17; Memphis St. Ry. Co. v. Shaw (Tenn.) 75 S. W. 713. 16 Birmingham R. & E. Co, v. Wildman, 119 Ala. 547. 17 99 Mich. 182. 18 3 App. Div. (N. Y.) 448. 19 Guntzer v. Yonkers R. Co., 51 App. Div. (N. Y.) 222. 20 Lax V. Forty-Second & G. St. Ferry R. Co., 46 N. Y. Super. Ct. 448. 21 Citizens' St. Ry. Co. v. Buffer, 26 Ind. App. 575. 22 West End & A. St. Ry. Co. v. Mozely, 79 Ga. 463; Chicago City Ry. Co. V. Dinsmore, 162 lU. 658. (144) Ch. 4] ACCIDENTS WHILE ALIGHTING PROM CAR. § 61 his position from the front to the rear platform, but did not, and stepped off just as the car started, he was held unable to recover.^* Where a passenger requests a conductor to wait a moment until a rapidly moving team has passed, he has a right to expect that the conductor will wait a reasonable time.^* Testimony that, as a woman was alighting holding onto the rail, she heard the bell ring, and that, when she regained consciousness, she found her arm pulled from its socket, warrants the jury in finding that the car started as she was- alighting.^'* Where a car came to a full stop, and the con- ductor announced a transfer point, the negligence of the motorman in starting ahead without a signal and without looking around was held to be for the jury.^* § 61. Speed of car. As previously mentioned, the speed of the car is one of the primary considerations in determining the question of the passenger's due care. Where a passenger jumped off a car running twenty miles an hour, although he did not know the car was running so fast, and did know of a city ordinance restricting the speed of the car to seven miles an hour, it was held that a non- suit was properly ordered ; and it is no excuse that the con- ductor would not stop when requested, and kept silent when he heard another passenger tell the plaintiff that the car was not going to stop, and that he had better jump.^'' 23 Brown v. Congress & B. St. Ry. Co., 49 Mich. 153. 2* Hutchins v. Macomber, 68 N. H. 473. 25BartIe v. Houghton County St. Ry. Co. (Mich.) 93 N. W. 62ff. 26Bessenger v. Metropolitan St. R. Co., 79 App. Div. (N. Y.) 32.. 2TMasterson v. Macon City & S. St. R. Co., 88 Ga. 436. (145) Ry. Ace— 10. § 61 STREET RAILWAY ACCIDENT LAW. [Ch 4 A woman's stepping from a cable car while it, was moving at any such speed as eleven miles an hour has been charac- terized as "gross contributory negligence";** and a woman alighting from a street car moving "fast enough to throw her" was held negligent, and not entitled to recover.^' Where a passenger stepped off a street car which was run- ning at its usual rate of speed, — from seven to twelve miles an hour, — ^he was held guilty of such contributory negli- gence as would bar his recovery.^" When a passenger was in the habit of jumping off a moving car, and the conductor and motorman knew of this, and would slow down the car to the speed of four or five miles an hour on his signal, it was held that a nonsuit was properly granted on the ground of contributory negligence.*^ In Neff v. Harrisburg Trac- tion Co.** the court went so far as to declare, apparently against the overwhelming weight of authority, that it is neg- ligent for a passenger to leave an electric car while it is in motion. The refusal of the driver or motorman of a street car to stop the car will not justify a passenger in leaving it while it is in motion,** even in the case of a child six and one- half years old,** or a man of seventy.*^ 28 Denver Tramway Co. v. Owens, 20 Colo. 107. 29 Calderwood v. North Birmingham St. Ry. Co., 96 Ala. 318. ^0 Saiko V. St. Paul City Ry. Co., 67 Minn. 8. 31 Jagger v. People's St. Ry. Co., 180 Pa. 436. 32 192 Pa. 501. 33 Denver Tramway Co. v. Owens, 20 Colo. 107; Masterson v. Macon City & S. St. R. Co., 88 Ga. 436; Rouser v. Washington & G. R. Co., 13 App. D. C. 320; North Chicago St. R. Co. v. Wrixon, 51 111. App. 307; Dresslar v. Citizens' St. R. Co., 19 Ind. App. 383; Duncan v. Wyatt Park Ry. Co., 48 Mo. App. 659; White v. West End (146) Cb. 4| ACCIDEN-TS WHILE ALIGHTING FROM CAR. § 61 It has been held that a person who voluntarily jumjss from a moving car assumes the risk of the accident which ensues,*" and that it is no part of the duty of a street rail- way company to prevent a passenger, much less a trespas- ser, from leaving a car while it is in motion.*^ When a passenger has signaled a car to stop, and it is slowing down in response to his signal, if he chooses to get off before it has stopped, it has been held that this is such lack of due care as will bar a recovery, the court proceeding on the theory that passengers have a right to have the car brought to a stand before alighting, and, if they choose to alight while the car is still in motion, they assume the risk of what may happen;*^ and in Harmon v. Washington & G. E. Co.^' it was held that, in such a case, it would be irrelevant to inquire whether the plaintiff was in the exer- cise of due care or not, since the defendant, being in the actual performance of its duty, could not be held negligent. In a number of cases it has been held that the defendant was entitled to a ruling that, if a passenger alights from a car which is slowing down, he cannot recover; but these St. Ry. Co., 165 Mass. 522; Maisels v. Dry Dock, E. B. & B. St. R., 16 App. Dlv. (N. Y.) 391; Mettlestadt v. Ninth Ave. R. Co., 27 N. Y. Super. Ct. 377; Hagan v. Philadelphia & G. Ferry Ry. Co., 10 Wkly. Notes Cas. (Pa.) 360. 34 Cram v. Metropolitan R. Co., 112 Mass. 38. 35 Outen V. North & South St. R. Co., 94 Ga. 662. 36 McDonald v. Montgomery St. Ry., 110 Ala. 161; jones v. uanai & C. R. Co., 109 La. 214; White v. West End St. Ry. Co., 165 Mass. 522; Werhowlsky v. Ft. Wayne & E. Ry. Co., 86 Mich. 236. 37Brightman v. Union St. Ry. Co., 167 Mass. 113. 38 Philips V. St. Charles St. R. Co., 106 La. 592; Saffer v. Dry Dock, E. B. & B. R. Co., 5 N. Y. Supp. 700. 38 6 Maokey (D. C.) 57. (147) § 62 STREET RAILWAY ACCIDENT LAW. [Ch. 4 were cases where the plaintiff's right of recovery was based npon a claim that the car had been stopped and started again, so that the question was in reality more one of pleading than of substantive law.*" Rules applicable to steam railways are not applicable to horse cars;*^ and in Denver Tramway Co. v. Eeid*^ the court said : "In the last few years, horses have been almost entirely displaced as a motive power on street car lines in cities by cables and electricity, and the operation of cars and trains correspondingly accelerated. As transit becomes more rapid, the dangers incident to street railway travel are correspondingly augmented, and, as the danger is increased, the law exacts greater care on the part of both the passen- ger and the carrier. For this reason, many of the decisions applicable to passengers on horse cars are inapplicable to the newer methods of transportation. The cable and elec- tric service today more nearly resembles the ordinary rail- way train, and the case law which has grown up with refer- ence to the latter is more in point." § 62. Manner of alighting. It is generally held that a person stepping off a moving street car backwards is not entitled to recover, although this is not lack of due care as matter of law.** 40 De Foe v. St. Paul City Ry. Co., 65 Minn. 319; Patterson v. West- cliester Electric Ry. Co., 26 App. Div. (N. Y.) 336; Kelly v. Third Ave. R. Co., 25 App. Div. (N. Y.) 603; Kuhlman v. Metropolitan St. Ry. Co., 30 Misc. Rep. (N. Y.) 417; Coleman v. Metropolitan St. Ry. Co., 81 N. Y. Supp. 836. 41 Ober V. Crescent City R. Co., 44 La. Ann. 1059. 42 22 Colo. 349. 43 Chicago City Ry. Co. v. Meehan, 77 111. App. 215. (148) Ch. 4] ACCIDENTTS WHILE ALIGHTING FROM CAR. § 62 In Purtell v. Eidge Ave. Passenger Hy. Co.*^ it was held that a boy of eleven, jumping backwards from the front platform of a moving street car, is guilty of lack of due care as a matter of law ; and in Colgan v. West Philadelphia Passenger Ry. Co.*^ the same rule was made in the case of a boy of sixteen, and it was further held that the plain- tiff could not make the excuse that he was a child of tender years. In Wrasse v. Citizens' Traction Co.,''® a boy of ten, who attempted to jump off a moving car backwards, was likewise held unable to recover, but on the ground that there was no evidence of negligence on the part of the company; and similarly it has been held that there is no negligence on the part of the company where a passenger steps off the front platform of a moving car backwards, without notice.*^ In Richmond v. Second Ave. R. Co.^^ it was held that to step off a moving street car backwards is lack of due care unless the passenger is induced to do so by the negligence of the company. In Rouser v. Washington & G. R. Co.*^ it was held that, when a car is negligently started while a passenger is alight- ing, her right to recover is not impaired by the fact that she may have stepped off with her back to the front of the train, and without holding onto the car. The court said : "When the car has been stopped, the passenger has the right to pre- sume that it will not be started while he is in the act of stepjDing off. Consequently, while it would be prudent to "3 Pa. Co. Ct. R. 273. 4=4 Wkly. Notes Cas. (Pa.) 400. 40 146 Pa. 417. 47 Steuer v. Metropolitan St. Ry. Co., 46 App. Div. (N. Y.) 500. 48 76 Hun (N. Y.) 233. 48 13 App. D. 0. 320. (149) §62 STREET RAILWAY ACCIDENT LAW. [Ch. 4 provide against possible negligence of the carrier by grasp- ing the handle-bar and getting off with face to the front, we cannot say that he is under any legal obligation to do so. We think that he has the right to step off with or without grasping the car, and facing in any direction that he chooses." Getting off the front platform of a street car which is not in motion is not lack of due care f° and in Hope v. West Chicago St. K. Co.^^ it was held that an instruction was erroneous which gave the impression that it was dangerous to alight from an electric car while it is not in motion. In Missouri, by statute, however, lack of due care is presmned when a passenger is injured while alighting from the front platform. ^^ Where a passenger was injured while alight- ing, but there was no proof that the car moved, there was held to be no negligence.^^ Where a ear started while a crippled passenger was alighting, it was held that, as the passenger was placed in a sudden emergency, to hold onto the rail was not negli- gence.^* Similarly, it is not lack of due care for an aged and infirm passenger to hold onto the running board in fall- ing, when a car is prematurely started,^ ^ or for a woman to try to get back onto the car.^^* Getting over an immovable guard on the front platform in order to alight is lack of due care as matter of law,** and eoMulhado v. Brooklyn City R. Co., 30 N. Y. 370. 61 82 111. App. 311. 02 McKeon v. Citizens' Ry. Co., 42 Mo. 79. osGretzner v. New Orleans & C. R. Co., 105 La. 266. siKnowlton v. Milwaukee City Ry. Co., 59 Wis. 278. 65 Indiana Ry. Co. v. Maurer (Ind.) 66 N. E. 156. 65aBrazis v. St. Louis Transit Co. (Mo. App.) 76 S. W. 708. 66 Pry V. People's Passenger Ry. Co., 17 Phila. (Pa.) 61. (150) Ch. 4] ACCIDENTS WHILE ALIGHTING FROM CAR. § 62 the fact that the conductor told a passenger to do so is no excuse. ^^ Omitting to take hold of handles or handle rails while in the act of alighting is held not to be lack of due care as a matter of law. Thus, in Scott v. Bergen County Traction Co.,^^ the due care of a passenger who omitted to take hold of a handle rail on the rear platform while standing there preparatory to alighting was held to be a question for the jury; and in Chase v. Jamestown St. Ry. Co.^^ the trial court was sustained in declining to hold, as matter of law, that a passenger who did not take hold of the arms of the seat while alighting from an open street car was guilty of lack of due care. So it has been held that whether omit- ting to grasp the handle holds on the uprights of the seats of an open car is lack of due care or not is a question for the jury,®'' and that it is not lack of due care, as matter of law, for a passenger, while alighting, not to use the handles provided for the purpose, particularly when it appears that, in order to use them, the passenger must turn around and get off backwards.®^ Where a woman got off the car with a child on her left arm, and there was ice on the platform, and a passenger stood so that she could not get hold of the rail, due care and negligence were held to be for the jury.®^ In Schaefer v. Central Crosstown E. Co.^^ it was held that 67Reilly V. Green & C. St. P. Ry. Co., 4 Wkly. Notes Gas. (Pa.) 273. 58 63 N. J. Law, 407. 69 15 N. y. Supp. 35. 60 Omaha St. Ry. Co. v. Craig, 39 Neb. 601. 61 Martin v. Second Ave. R. Co., 3 App. Div. (N. T.) 448. 62 Neslie v. Second & Third Sts. Passenger Ry. Co., 113 Pa. 300. 83 30 Misc. Rep. (N. Y.) 114. (151) § 63 STREET RAILWAY ACCIDENT LAW. [Ch. 4 it was not lack of due care, as matter of law, for a washer- woman with a large bundle of linen to descend the steps of a street car without taking hold of the rail. § 63. Age and physical condition of passenger. Due care has been held to be for the jury where, on the one hand, a boy of eight,"* one of nine,®^ one of ten,®" one of thirteen,"^ and one of seventeen,"^ jumped from a street car while it was in rapid motion, and where, on the other, a man over sixty,"^ one of seventy-four, ''^'* and one of seventy- eiglit,^""^ jumped from a moving car. Where a boy of thir- teen jumped off a moving car, it was held that, under all the circumstances of the case, the accident was due to his own imprudence.^ ^ The refusal of a conductor to stop a car will not justify a boy six and one-half years old in alighting. '^^ Where a boy of six was stealing a ride, and, being told by the con- ductor to get off, jumped from the car without waiting for it to stop, it was held that he could not recover. '^^ Where a boy of eight was stealing a ride, and voluntarily jumped «4 Moran v. Versailles Traction Co., 188 Pa. 557. ■6= Rldenhour v. Kansas City Cable Ry. Co., 102 Mo. 270. .00 Brennan v. Fair Haven & W. R. Co., 45 Conn. 284. 07 Pueblo Electric St. Ry. Co. v. Sherman, 25 Colo. 114; Crissey v. Hestonville, M. & F. P. Ry. Co., 75 Pa. 83. , es wyatt v. Citizens' Ry. Co., 55 Mo. 485. 09 Denver Tramway Co. v. Reid, 22 Colo. 349. -70 Munroe v. Third Ave. R. Co., 50 N. Y. Super. Ct. 114. 70a Dawson v. St. Louis Transit Co. (Mo. App.) 76 S. W. 689. 71 Cronan v. Crescent City R. Co., 49 La. Ann. 65. 72 Cram v. Metropolitan R. Co., 112 Mass. 38. 78 Feingold v. Philadelphia Traction Co., 21 Pa. Co. Ct. R. 183. (152) Ch. 4] ACCIDENTS WHILE ALIGHTING PROM CAR. § 63 from a moving car, it was held that he could not recover, and that a street car company was under no obligation to prevent a passenger, much less a trespasser, from leaving a car while it was in motion J* More attention should be paid to an aged or infirm pas- senger than to one in ordinary health;''^ but an instruction that a carrier must use reasonable care towards women and children in their alighting was held objectionable, as likely to be understood to mean that he must assist them to alight J* Where a driver was helping a small boy off the car, and the brake became loose and injured him, the driver's negli- gence was held to be for the jury.'''' When a driver permits a boy of seven to ride, he cannot order him off without giv- ing him an opportunity to alight in safety, and, if he tells him to get off while the ear is in motion, negligence is for the jury.''® It is not negligence for a conductor to call a boy to the platform when his destination is reached, and the boy falls off the platform by his own imprudence.''^ It is the duty of a street railway company to prevent children from getting off the front platform, and the negli- gence of the company is for the jury when a boy of ten ^i Brightman v. Union St. Ry. Co., 167 Mass. 113. 75 Anderson v. Citizens' St. R. Co., 12 Ind. App. 194; Purgason V. Citizens' St. Ry. Co., 16 Ind. App. 171; Wardle v. New Orleans City R. Co., 35 La. Ann. 202; Ridenhour v. Kansas City Cable Ry. Co., 102 Mo. 270; Colt v. Sixth Ave. R. Co., 33 N. Y. Super. Ct. 189; Schiller v. Dry Dock, B. B. & B. R. Co., 26 Misc. Rep. (N. Y.) 392; Memphis St. Ry. Co. v. Shaw (Tenn.) 75 S. W. 713. 76Selby V. Detroit Ry., 122 Mich. 311. 77 Buck V. People's St. Ry. & B. L. & P. Co., 108 Mo. 179. 78 McCahill v. Detroit City Ry. Co., 96 Mich. 156. 7» Cronan v. Crescent City R. Co., 49 La. Ann. 05. (1,^3) § (,4 STREET RAILWAY ACCIDENT LAW. [Ch. 4 got off the front platform because of the crowded condition of the car,*" and one of thirteen was allowed to jump off a moving car to turn the trolley: . 81 § 64. Sex of passenger. The sex of the passenger is one circumstance to he con- sidered. In Chicago City Ey. Co. v. Meehan*^ the court said: "We do not say that it is always negligence for a person to alight from a car with the back towards the front end of the train; but by the modifications made by the court, the manner of getting off the car is ignored. Even if it be considered that, under such circumstances, it would not be negligence or want of ordinary care for a young man in sound physical condition and vigor to jump or step from a car while it is in motion, and not at a regular stopping place, yet it might be negligence, and show an absolute want of ordinary care, for a woman, under the same circumstances, to step or jump from a moving car with her back towards the front end of the train. In alighting from a moving car in the manner indicated, a woman would usually be laboring under a serious disadvantage by reason of her mode of dress." It is not lack of due care, as matter of law, for a woman to wear a dress so long that it would be likely to catch upon such appliances as necessarily extend above the platform of a street car;*^ and it has been held that it cannot be 80 Philadelphia City Passenger Ry. Co. v. Hassard, 75 Pa. 367. 81 Pueblo Electric St. Ry. Co. v. Sherman, 25 Colo. 114. 82 77 111. App. 215. 83 Smith V. Kingston City R. Co., 55 App. Div. (N. Y.) 143. (154) Ch. 4] ACCIDB]SrTS WHILE ALIGHTING PROM CAR. fc} 64 said, as matter of law, that a hoop skirt is an unnecessary article of female apparel, or that an extra degree of care is required on the part of the wearer.*^ A passenger is not guilty of contributory negligence in allowing her dress to trail while she is leaving a street car, unless she has some reason to apprehend danger in so doing.^^ When a con- ductor assisted a woman to alight, and, in getting back on the car, stepped on her skirt, which had not been removed from the step, causing her to fall, this states a cause of action.** A woman alighting from a street car should be given time enough to step off, and also to clear her skirts from any obstruction on the platform upon which they may have caught.*'^ If it is the custom to wear hoop skirts, the carrier must look out for the safety of passengers wearing them.** There is no negligence on the part of the company where a woman's skirt caught in some unexplained manner while she was alighting f^ but where a woman's dress caught on a threaded bolt extending three-eighths of an inch above the floor, it was held that the jury were authorized in find- ing negligence from the physical facts, without direct proof .^^ 84 Colt V. Sixth Ave. R. Co., 33 N. Y. Super. Ct. 189; Poulin v. Broadway & S. A. R. Co., 34 N. Y. Super. Ct. 296. 85 Colt V. Sixth Ave. R. Co., 33 N. Y. Super. Ct. 189; Paterson v. Inclined Plane Ry. Co., 5 Ohio S. & C. P. Dec. 665. 86 Citizens' St. R. Co. v. Shepherd, 29 Ind. App. 412, 65 N. B. 765. 8T Smith V. Kingston City R. Co., 55 App. Div. (N. Y.) 143; Colt V. Sixth Ave. R. Co., 33 N. Y. Super. Ct. 189. 88 Poulin v. Broadway & S. A. R. Co., 34 N. Y. Super. Ct. 296. 89 Doyle V. Metropolitan St. Ry. Co., 29 Misc. Rep. (N. Y.) 331. soChartrand v. Southern Ry. Co., 57 Mo. App. 425. (155) § 65 STREET RAILWAY ACCIDENT LAW. [Ch. 4 § 65. Incumbered with bundles. It has been held that a passenger alighting from the front steps of a moving street car with a fifty-pound keg of lead in his hands is not in the exercise of due care;^^ and like- wise that alighting from a moving car with a large package weighing fifteen pounds in one hand is lack of due care as matter of law.^^ On the other hand, where a passenger was carrying two bundles of chair bottoms, weighing fifty pounds, but had the free use of both hands, the court held that whether it is lack of due care to alight from a moving car while in- cumbered with bundles is a question for the jury, depending on the speed of the car, and all the surrounding circum- stances;^^ and it has been held that it is not lack of due care, as matter of law, for a washerwoman with a large bun- dle of linen to descend the steps of a street ear without tak- ing hold of the rail.^* Where a woman got off a car with a child on her left arm, and there was ice on the platform, and a passenger stood so that she could not get hold of the rail, due care and negligence were held to be for the jury.®^ Passengers incumbered with bundles must be given a reasonable opportunity to alight f^ and where a car is negli- gently started, it is no excuse that a passenger was so in- cumbered with packages that she could not avail herself fully of the means provided for alighting.^'^ 81 Ricketts v. Birmingham St. Ry. Co., 85 Ala. 600. 92Kircliner v. Detroit City Ry., 91 Mich. 400. 83 Richmond v. Second Ave. R. Co., 76 Hun (N. Y.) 233. Hi Schaefer v. Central Crosstown R. Co., 30 Misc. Rep. (N. Y.) 114. 95 Neslie v. Second & Third Sts. Passenger Ry. Co., 113 Pa. 300. oe Machen v. Railway Co., 13 Pa. Super. Ct. 642. 97 Cawfield v. Asheville St. Ry. Co., Ill N. C. 597. (156) Ch. 4] ACCIDElSrTS WHILE ALIGHTING FROM CAR. § 55 § 66. Place of alighting. The authorities are in conflict as to the duty of a street railway company in selecting a stopping place. It is stated, on the one hand, that the company must furnish its passen- gers with a reasonably safe place at which to alight ;°* on the other, that if it uses ordinary care in selecting a stop- ping place, it is not liable if the place is in fact unsafe, since the, company has no control over the streets."'' Of course, under the latter holding, the company would be liable at its termini or regular stops, where it had control.^"'' Where a street railway company dug a trench, it was held bound to use reasonable care to guard the trench and warn passengers alighting.-"'^ Where an embankment or an ex- cavation was made by the city, the same duty to warn jDas- sengers was held to exist ;-"'^ and where a passenger was car- ried by his station on a dark night, and, alighting, fell into a trench, the company was held liable. ^"^ Where a train went by a station on a dark night, and the conductor lighted a pas- senger off the car with a lantern, and the passenger was 98 Montgomery St. Ry. Co. v. Mason, 133 Ala. 508; West Chicago St. Ry. Co. V. Cahill, 64 111. App. 539; Jagger v. People's St. Ry. Co., 180 Pa. 436. 80 Conway v. Lewiston & A. II. R Co., 87 Me. 283, 90 Me. 199; Stewart v. St. Paul City Ry. Co., 78 Minn. 85; Foley v. Brunswick Traction Co., 66 N. J. Law, 637; Flack v. Nassau Electric R. Co., 41 App. Div. (N. Y.) 399. 100 Flack V. Nassau Electric R. Co., 41 App. Div. (N. Y.) 399. 101 Wolf V. Third Ave. R. Co., 67 App. Div (N. Y.) 605. And see Joslyn V. Milford, H. & P. St. Ry. Co. (Mass.) 67 N. E. 866. 102 Ft. Wayne Traction Co. v. Morvilius (Ind. App.) 68 N. E. 304; Flack-v. Nassau Electric R. Co., 41 App. Div. (N. Y.) 399. 103 Richmond City Ry. Co. v. Scott, 86 Va. 902; Henry v. Grant St. Electric Ry. Co., 24 Wash. 246. (157) I 66 STRJSEl' RAILWAY ACCIDENT LAW. [Ch. 4 run over, it was held that to induce a passenger to get off at a dangerous place was negligence, and that this was a question for the jury.^"* Where a passenger stepped into an excavation in broad daylight, it was held that those in charge of the car had a right to assume she would pay heed to her steps ;^''^ but in a precisely similar case exactly the opposite conclusion was reached.'"® A petition alleg- ing that a street railway company, bound to keep the street in repair, stopped at a dangerous hole in a crossing, states a cause of action.'"^ Where a car stopped, apparently in answer to a pas- senger's signal, but not at a usual stopping place, her due care in alighting is a question for the jury.-"'* Where a passenger was injured while alighting by step- ping on a ridge of earth at some pleasure grounds main- tained by the company, due care and negligence are ques- tions for the jury.'"' When the place where the passenger is about to alight is rendered dangerous because of an approaching truck, she is entitled to a reasonable time in which to alight and select a safe position on the street, and is not obliged to proceed on the car to some other safe point.''" 104 McDonald v. Kansas City & I. Rapid Transit Ry. Co., 127 Mo. 38. io5BigeIow V. West End St. Ry. Co., 161 Mass. 393; Lee v. Bos- ton El. Ry. Co., 182 Mass. 454. 100 Bass V. Concord St. Ry. Co., 70 N. H. 170. 107 ober v. Crescent City R. Co., 44 La. Ann. 1059. 108 North Birmingham St. Ry. Co. v. Calderwood, 89 Ala. 247. 100 Poole V. Consolidated St. Ry. Co., 100 Mich. 379. 110 Norton v. Third Ave. R. Co., 26 App. Div. (N. Y.) 60. (158) Ch. 4] ACCIDENTS WHILE ALIGHTING FROM CAR. § (,7 § 67. Preparatory to alighting. Standing in a car, which is still moving, preparatory to alighting, is held not to be lack of due care as matter of law. For a passenger to signal a street car to stop, and then to walk to a place where he expects to alight, and stand there waiting for the car to stop, is so common that such conduct cannot be said to be lack of ordinary care."^ Thus, the plaintiff has been held not to be barred from recovery where he stood, preparatory to alighting, on the rear plat- form,"^ or the running board,^^^ or the step of the rear platform,"* or inside the car,"^ or with one foot on the rear platform and one on the step,^^' or with one foot in the car and one on the running board.^" There is no rule of law which requires a passenger in a street car to retain his seat or other position until the car has actually stopped, and it is matter of universal ob- 111 North Chicago St. R. Co. v. Southwick, 66 111. App. 241. 112 North Chicago St. R. Co. v. Southwick, 66 111. App. 241; North Chicago St. R. Co. v. Baur, 79 111. App. 121; Etson v. Ft. Wayne & B. I. Ry. Co., 110 Mich. 494; Blondel v. St. Paul City Ry. Co., 66 Minn. 284; Scott v. Bergen County Traction Co., 63 N. J. Law, 407. 113 Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233; Sweeney V. Kansas City Cable Ry. Co., 150 Mo. 385; Omaha St. Ry. Co. v. Craig, 39 Neb. 601; Medler v. Atlantic Ave. R. Co., 12 N. Y. Supp. 930. 114 Washington & G. R. Co. v. Harmon's Adm'r, 147 U. S. 571; Birmingham R. & E. Co. v. James, 121 Ala. 120; Watkins v. Birming- ham R. & B. Co., 120 Ala. 147; Currie v. Mend«nhall, 77 Minn. 179; Bowie V. Greenville St. Ry. Co., 69 Miss. 196; Linch v. Pittsburgh Traction Co., 153 Pa. 102; Foster v. Union Traction Co., 199 Pa. 498. iisDemann v. Eighth Ave. R. Co., 10 Misc. Rep. (N. Y.) 191; Sweeney v. Union Traction Co., 199 Pa. 293; Consolidated Traction Co. V. Thalheimer, 59 N. J. Law, 474. lie Mitchell v. Electric Traction Co., 12 Pa. Super. Ct. 472. 11' Springiield Consolidated Ry. Co. v. Hoeffner. 71 111. App. 162; Bradley v. Ft. Wayne & E. Ry. Co.. 94 Mich. 35. (159) §67 STREET RAILWAY ACCIDENT LA^W. [Ch. 4 servatioii that thousands every day leave their seats to get off before the ear has stopped without sustaining any in- jury.i'® A passenger on a street car who goes out upon the plat- form after the conductor has called the name of a street, and is standing upon the step when the car stops, is justified in alighting.^^^ In Dresslar v. Citizens' St. E. Co.^^" it was held that where a passenger, in attempting to change his position from the platform to the step below, preparatory to alight- ing, was injured by the gradual increase in speed, there was no negligence on the part of the company ; and the same rul- ing has been made where the passenger fell off, but there was no unusual motion of the car.^^^ Where a passenger testified that, as the car slowed down in answer to his sig- nal, he went onto the rear platform, and "the car went righc from under him," but there was no proof of any jolt or jerk, there is no evidence of negligence on the part of the company.^^^ In Lacas v. Detroit City Ey. Co.^^^ it was held that, where the passenger was just about to put her foot upon the running board, and it would have been difficult fof her to turn back, she was not guilty of lack of due care in continuing her descent from the car as it started; and the same ruling was made in Piper v. Minneapolis St. Ky. Co.,i^* iisBabcock v. Los Angeles Traction Co., 128 Cal. 173; Nichols v. Sixth Ave. R. Co., 38 N. Y. 131. 110 North Chicago St. R. Co. v. Brown, 178 111. 187; Indianapolis St. Ry. Co. v. Hockett, 159 Ind. 677. 120 19 Ind. App. 383. 121 Philips v. St. Charles St. R. Co., 106 La. 592. 122 Armstrong v. Metropolitan St. Ry. Co., 23 App. Div. (N. Y.) 137. 123 92 Mich. 412. 124 52 Minn. 269. (160) Ch. 4] ACCIDEISrTS WHILE ALIGHTING FROM CAR. § 68 and in Indianapolis St. Ey. Co. v. Lawn.-*^* Where a passenger jumped from a car in fear of an apparent col- lision, it was held that a person placed in sudden peril is not held to the usual standard of care.^^® Where a passenger placed his hand on the door of a car on an elevated railroad to steady himself before alighting, and a guard opened the door just before the train stopped, there was held to be no negligence.^^'^ § 68. Notice of desire to alight. Whether or not a passenger gave notice of his desire to alight from a street car is an important point in determin- ing the question of due care and negligence.^^® Although such notice need not be express, but may be implied from the conduct of the passenger,^^^ a passenger has no right to assume, after he has signaled the conductor, that a reduc- tion of speed is for his benefit, in the absence of any knowl- edge that the conductor communicated his signal to the grip- man, and that the reduction in speed was in answer to that signal.^ ^^ Where the conductor, on a passenger's signal, raised his hand towards the bell rope, and, as the passenger stepped off, the car started suddenly, due care and negli- gence were held to be for the jury.-'^-' Where one passenger gives notice of a desire to alight, and the car stops, or is about to stop, another passenger, who wishes to alight, 12B (ind. App.) 66 N. B. 508. 128 South Covington & C. St. Ry. Co. v. Ware, 84 Ky. 267. 127 Hannon v. Boston EI. Ry. Co., 182 Mass. 425. 128 McDonald v. Kansas City Cable Ry. Co., 32 Mo. App. 70. 129 West Chicago St. R. Co. v. Stiver, 69 111. App. 625. 130 Armstrong v. Metropolitan St. Ry. Co., 36 App. Div. (N. Y.) 525. 131 Harris v. Union Ry. Co., 69 App. Div. (N. Y.) 385. (161) Ry. Ace. — 11. § 68 STREET RAILWAY ACCIDENT LAW. [Ch. 1 need not give notice of his desire to do so as a matter oJ law.-*^* If a street car is stopped at a customary place, a passenger has the right to alight without notice, and the driver must allow him a reasonable time to alight, and is liable if he knew or should have known that the passengei was alighting, even if he had reason to believe the passengei was not going to get off, or was expressly so notified.^^^ Actual or express notice is not required if the conductoi knew or ought to have known that the passenger was in the act of alighting. ^^* Where a conductor went ahead to a crossing, and ther signaled the car to come on, and a passenger, who had giver no notice of his intention to alight, was injured, while the motorman gave no notice of starting, it was held that due care and negligence were for the jury.-'*^ While a passenger is thus not always guilty of lack oi •due care in alighting without giving notice, it is equally "true that the passenger is always bound to show that the negligence of the company contributed to the injury; and where a passenger gave a signal to stop, the car slowed up and she gave a second signal, and was injured while alight ing, the company was held not liable when it did not appeal that her second signal was not a regular starting signal, no: that the motorman might have known that she was in a dan gerous position.i^^ It may be stated, as a general proposi- 132 Schaefer v. Central Crosstown R. Co., 30 Misc. Rep. (N. Y.) 114; Rathbone v. Union R. Co., 13 R. I. 709. 133 Chicago West Div. Ry. Co. v. Mills, 105 111. 63. 13* Washington & G. R. Co. v. Grant, 11 App. D. C. 107; Louis ville Ry. Co. v. Rammaker, 21 Ky. Law Rep. 250. 135 Bensing v. People's Electric St. Ry. Co., 9 Pa. Super. Ct. 142. ^62) Ch. 4J ACCIDEKTS WHILE ALIGHTING PROM CAR. | 68 tion, that, where a passenger is injured while alighting without giving notice to those in charge of the car, and it does not appear that they had a reasonable opportunity of knowing that the passenger was alighting, there is no negli- gence on the part of the company.^^^ A conductor is not absolutely bound to remember the notice which a passenger gives him of her desire to alight.-'^* It is the duty of those in charge of the car to bring it to a full stop when a pas- senger signifies his intention to alight.^*^ If the conductor is not in his place, and a passenger alights when the car stops apparently in answer to her signal, due care is for the jury.^*" lasSirk v. Marion St. Ry. Co., 11 Ind. App. 680. 137 Chicago West Dlv. Ry. Co. v. Mills, 91 111. 39 ; Ackerstadt v, Chicago City Ry. Co., 194 111. 616; Chicago City Ry. Co. v. Greg& 69 111. App. 77; Nichols v. Middlesex R. Co., 106 Mass. 463; Gilherl V. West End St. Ry. Co., 160 Mass. 403; Jacobs v. West End St. Ry Co., 178 Mass. 116; Oddy v. West End St. Ry. Co., 178 Mass. 341; Spaulding v. Quincy & B. St. Ry. Co. (Mass.) 69 N. E. 217; Lee V. Elizabeth, P. & C. J. Ry. Co. (N. J. Sup.) 55 Atl. 106; Hogar V. Central Park, N. & E. R. R. Co., 124 N. Y. 647; Losee v. Wa- tervliet Turnpike & R. Co., 63 Hun (N. Y.) 404; Steuer v. Metropoli- tan St. Ry. Co., 46 App. Div. (N. Y.) 500; Sims v. Metropolitan St. Ry Co., 65 App. Div. (N. Y.) 270; Dickson v. Broadway & S. A. R. Co. 33 N. Y. Super. Ct. 330; Grabenstein v. Metropolitan St. Ry. Co. 84 N. Y. Supp. 261; Ashtabula Rapid Transit Co. v. Holmes, 61 Ohio St. 153; Clutzbeher v. Union Passenger Ry. Co. (Pa.) 1 Atl 597; Blakney v. Seattle Electric Co., 28 Wash. 607. 138 Robinson y. Northampton St. Ry. Co., 157 Mass. 224. 139 Rouser V. Washington & G. R. Co., 13 App. D. C. 320 ; Crissej V. Hestonville, M. & F. P. Ry. Co., 75 Pa. 83. 140 North Birmingham St. Ry. Co. v. Calderwood, 89 Ala. 247: Gillespie v. Yonkers R. Co., 83 N. Y. Supp. 1043. (163) 8 70 STREET RAILWAY ACCIDENT LAW. [Ch. 4 § 69. Alighting in spite of warning. Where a passenger was about to alight at a place where the car had stopped to await a signal from a flagman before passing over the crossing, and was told by the conductor not to get off, but insisted on so doing, and was injured, she cannot recover.^ *^ If a passenger alights from a car in disregard of the conductor's^*^ or motorman's^** request to await until it stops, the company is not liable. § 70. Condition of car. A street car company must exercise the highest degree of care to keep its platforms and steps in safe condition as far as practicable, considering the climate, the tempera- ture, and the condition of the air and ground with respect to snow, moisture, and frost;'** and in Leslie v. Second & Third Sts. Passenger Ey. Co.-**® the question whether ice was allowed to remain on the steps an unreasonable length of time was held to be for the jury. When a passenger testified that, as he was alighting, he caught his foot in the step of the car, and, as he pulled to get it loose, fell and was injured, there was held to be no evidence of negligence.'*® One who alights from a moving car assumes the risk of the accident, and the construction of a car cannot be said to be defective when it is dangerous only in view of siich con- duct.'*^ 141 Jackson v. Grand Ave. Ry. Co., 118 Mo. 199. "2 Duncan v. Wyatt Park Ry. Co., 48 Mo. App. 659. 143 Campbell v. Los Angeles Ry. Co., 135 Cal. 137, 144 Herbert v. St. Paul City Ry. Co., 85 Minn. 341. 145 113 Pa. 300. 146 Howell V. Union Traction Co., 202 Pa. 338. (164) Ch. 4] ACCIDENTS WHILE ALIGHTING FROM CAR. | 71 In Hitchcock v. Brooklyn City K. Co.**® there was held to be no evidence of a defective step. Where there are parallel tracks, it is a question for the jury whether it is negligence not to have guards to prevent passengers from alighting on the side next to the parallel track.**' Where a passenger was injured by catching her clothing on a broken curtain hook, and the company proved that it used these hooks on all its cars, that such an accident had never occurred before, that the cars were inspected at the end of each trip, and, if a broken hook was found, it was replaced, there was held to be no negligence.*^" The crowd- ed condition of a car is no excuse for the conductor's lack of attention towards a passenger who is alighting.*^* Where it was claimed that a step was worn, and was al- lowed to become slippery by an accumulation of mud, negli- gence was held to be for the jury;*^^ and where a passenger was injured by a slippery step while alighting during a snow storm, a verdict for the plaintiff was held to be justi- fied.*s» § 71. Injury by fellow passenger. If a passenger is injured by a fellow passenger stepping on her dress while she is alighting, the company is not lia- ble.*" 147 Werbowlsky v. Ft. Wayne & B. Ry. Co., 86 Mich. 236. "8 3 N. Y. Supp. 218. lio Atlanta Consol. St. Ry. Co. v. Bates, 103 Ga. 333. 150 Kelly V. Now York & S. B. Ry. Co., 109 N. Y. 44. 1=1 West Chicago St. R. Co. v. Waniata, 68 111. App. 481. 152 Louisville Ry. Co. v. Park, 96 Ky. 580. 163 Foster v. Old Colony St. Ry. Co., 182 Mass. 378. 164 Poole v. Consolidated St. Ry. Co., 100 Mich. 379. ' (165) g 71 STREET RAILWAY ACCIDENT LAW. [Ch. 4 In Bowdle v. Detroit St. Ky. Co.^''^ it was held that, when a passenger's dress caught in a hook while she was alighting, the defendant would not be liable if the hook were but recently displaced by a passenger, and that was the sole cause of the accident. Where there is a rush of passengers when a car has stopped for them to alight, the conductor must do what he reasonably can to prevent injuries to the passengers; but it is not his duty to assist any passenger in particular, unless he sees that one is in special danger.^ ^® If a passenger is injured in a crowd at a transfer station, and such place is dangerous because of the hurried efforts of the passengers to change cars, so that a conductor is nec- essary on each car, the company is liable if a conductor left his car before reaching the transfer station.-'®^ The company is not liable for injuries by fellow passen- gers while a passenger was alighting, when the conductor was assisting a child in her care to alight.-'®* Where a fellow passenger rang the bell to start while a passenger was alighting, there was held to be no evidence of negligence of the company.-'^^ The company is not liable for the act of an intermeddler in giving the signal to start, when its employes could not guard against it; but where the conductor makes no at- tempt to stop the car, it will be held to ratify the act.^'" 155 103 M\ch. 272. 156 Jarmj v. Duluth St. Ry. Co., 55 Minn. 271. 157 Baldwin v. Fair Haven & W. R. Co., 68 Conn. 567. 158 Furgason v. Citizens' St. Ry. Co., 16 Ind. App. 171. 159 0'Neil V. Lynn & B. R. Co., 180 Mass. 576; Krone v. Southwest Missouri Electric Ry. Co. (Mo. App.) 71 S. W. 712. 160 Leavenworvh Electric R. Co. v. Cusick, 60 Kan. 590. (166) Ch. 4] ACCIDENTS WHILE ALIGHTING PROM CAR. § 72 Where a passenger was injured, while alighting, by other passengers crowding onto the car, negligence was held to be for the jury.^®^ § 72. Miscellaneous. Where a passenger got off a car to get his hat, and was run over by another car, due care and negligence were held to be for the jury.^^^ In determining what is due care, the instinct of self-preservation must be considered;-'®^ and when a woman got off a moving car for fear of being insulted, the reasonableness of her belief was held to be for the jury.-'®* The mere fact that an accident happens to a passenger while he is alighting from a car is not enough to raise a presumption of negligence ;^®^ and even when there is a sudden jerk, but the cause is unexplained, this is not suf- ficient to show negligence.^®® If the injury to a passenger is caused by apparatus wholly under the control of the carrier, and furnished and applied by it, a presumption of negligence arises.^®^ In City & Suburban E.y. v. Eind- 2gyi68 £). ^^g somewhat loosely stated that the presumption is always against the carrier. 161 Buck V. Manhattan Ry. Co., 15 Daly (N. Y.) 550. 102 Thomas v. Union Ry. Co., 18 App. Div. (N. T.) 185. 163 Slaughter V. Metropolitan St. Ry. Co., 116 Mo. 269. 16* Ashton V. Detroit City Ry. Co., 78 Mich. 587. 105 Chicago City Ry. Co. v. Catlin, 70 111. App. 97; Dresslar v. Citizens' St. R. Co., 19 Ind. App. 383; Olfermann v. TTnion Depot R. Co., 125 Mo. 408. 166 Bradley v. Ft. Wayne & E. Ry. Co., 94 Mich. 35; Etson v. Ft. Wayne & B. I. Ry. Co., 110 Mich. 494. 167 Chicago City Ry. Co. v. Catlin, 70 111. App. 97. 168 76 Ga. 311. (167) §72 STREET RAILWAY ACCIDENT LAW. [Ch. 4 Where one employe was both motorman and conductor, it was held that the test of negligence was not whether an injury could have been prevented if two men had been em- ployed, but that the expense of a second man, the amount of traffic, and the danger in operating the car should all be taken into consideration.^®® Where a passenger was injured while alighting, and there was no conductor, and the driver knew nothing of the acci- dent, a verdict against the company was held to be support- ed by the evidence;^'''' but where there was an ordinance forbidding conductors to allow women to leave a moving car, and a woman was injured while so alighting when the conductor was temporarily absent from the car, the plaintiff was held to have established a prima facie case.^^* Where a cripple was carried by his usual stopping place, and the train stopped, and then backed while he was get- ting oif, the negligence of the company is for the jury.^''^ Where a car was negligently started, and the conductor tried to save a passenger from falling, and, instead, accel- erated her fall, it was held that the company was liable for both acts.^^* In Posten v. Denver Consol. Tramway Co.^''* it was held error to sustain a nonsuit where a passenger was alighting from a slowly moving car, and the conductor seized him and caused him to fall, and it is negligence for a conductor 100 Palmer v. Winona Ry. & Light Co., 78 Minn. 138. >7o City & Suburban Ry. v. Findley, 76 Ga. 311. iTi Fortune v. Missouri R. Co., 10 Mo. App. 252. 172 Gadsden & A. U. Ry. Co. v. Causler, 97 Ala. 235. iTSMacer v. Third Ave. R. Co., 47 N. Y. Super. Ct. 461. "4 11 Colo. App. 187. (168) Ch. 4] ACCIDENTS WHILE ALIGHTING PROM CAR. § 72 to get on the steps of the rear platform and throw a passenger A passenger is chargeable with knowledge of an ordinance requiring cars to stop at the further side of a street.^'^ 174a Fleming v. St. Louis & S. Ry. Co. (Mo. App.) 74 S. W. 382. 175 North Birmingham St. Ry. Co. v. Calderwood, 89 Ala. 247. (169) CHAPTER V. EJECTION. I. What Renders Passengee Liable to Ejection. § 73. Nonpayment of Pare. 74. Same — What is a Reasonable Tender. 75. Conduct. 76. Color.. II. Mannee, Place, and Time of Ejection. § 77. What Constitutes Ejection. 78. How Performed. III. Master and Sbevant. § 79. Responsibility for Acts of Servant, 80. Exemplary Damages. IV. Tickets and Transfees. § 81. Place of Transfer. 82. Time of Transfer. 83. Transfer Bad on Pace. 84. Transfer Without Check. 85. Miscellaneous. I. What Kendees Passenger Liabi^e to Ejection. A passenger may be ejected for a refusal to pay tare, or for making a tender of fare unreasonable in quality or amount, and may be ejected for language or conduct which causes, or is rea- sonably certain to cause, offense or annoyance to other passen- gers, or for a refusal to obey the reasonable rules of the company. A passenger may not be ejected on account of his color. (170) Ch. 5] EJECTION. § 73 § 73. Nonpayment of fare. Those in charge of a street car may eject a passenger for refusal to pay fare/ and may in like manner eject trespass- ers who have no intention of paying fare,^ and may prevent access to a car by a trespasser,* or prevent passengers from boarding a car before it has reached its usual stopping place."* A fortiori they may eject one who has just been rightfully ejected, and is seeking to gain an entrance a second time.° A statute providing for ejection from street cars in case fare is not paid applies to electric cars, though enacted before their introduction." A rule requiring a passenger to deposit his fare in a box upon entering a car is a reasonable one,^ and a |)assenger who will not comply with the rule can be ejected with the use of reasonable force ;^ but where a driver, who is author- ized to make change, gives a passenger five cents too little, the passenger must be regarded as having paid his fare, and the driver cannot eject him for his refusal to put an ad- 1 Chicago City Ry. Co. v. Pelletier, 134 111. 120; West Chicago St. R. Co. v. Luleich, 85 111. App. 643; Hudson v. Lynn & B. R. Co., 178 Mass. 64; Sanford v. Eighth Ave. R. Co., 23 N. Y. 343; Lynch v. Metropolitan El. Ry. Co., 90 N. Y. 77. 2 North Chicago City Ry. Co. v. Gastka, 128 111. 613 ; Amato v. Sixth Ave. R. Co., 9 Misc. Rep. (N. Y.) 4; Ansteth v. Buffalo Ry. Co., 9 Misc. Rep. (N. Y.) 419. o Amato V. Sixth Ave. R. Co., 9 Misc. Rep. (N. Y.) 4; Ansteth v. BufCalo Ry. Co., 9 Misc. Rep. (N. Y.) 419. 4 Lesser v. St. Louis & S. Ry. Co., 85 Mo. App. 326. 5 North Chicago St. R. Co. v. Olds, 40 111. App. 421, 64 111. App. 595. 6 Hudson V. Lynn & B. R. Co., 178 Mass. 64. 7 Nye V. Marysville & Y. C. St. R. Co., 97 Cal. 461; Curtis v. Louis- ville City Ry. Co., 94 Ky. 573. 8 Nye V. Marysville & Y. 0. St. R. Co., 97 Cal. 461. (171) § 73 STREET RAILWAY ACCIDENT LAW. [Ch. 5 ditional fare in the box.* Where the company posts a rule requiring passengers to drop their fares in a box, a pas- senger cannot be expected to know of private directions given to drivers to go through the cars and collect fares when the cars are crowded, and a passenger who has put his fare into the box is wrongfully ejected for refusing to pay another fare.i" In Corbett v. Twenty-Third St. Ky. Co.," a pas- senger put one fare too many into the box, and the driver told him he must go to the office of the company to get it back. In the meantime a lady entered the car, and gave her fare to the plaintiff, who put it in his pocket, and on refusal to give it up, was arrested. It was held that the rule of the company requiring a passenger to go to the office was unreasonable, that the plaintiff's conduct was entirely reasonable, and that the company was liable for his removal from the car and his detention in the station house. A statute declaring that railroad companies shall not ■charge more than three cents a mile does not apply to a horse railroad where the passenger pays one fixed sum, wheth- er he goes the entire distance or not.'^ In Forman v. 'New Orleans & C. K. Co.-'^ it was held that a discrimination in the rate of fare, allowing residents on a certain street to ride for a less sum under certain conditions, was not unrea- sonable. A passenger may not enter a car, and make a continuous round trip over a given route for one fare, under a statutory provision, but, after passing the usual terminus where the 8 Curtis V. Louisville City Ry. Co., 94 Ky. 573. 10 Perry v. Pittsburgh Union Passenger Ry., 153 Pa. 236. "42 Hun (N. Y.) 587. 12 Hoyt V. Sixth Ave. R. Co., 1 Daly (N. Y.) 528. 13 40 La. Ann. 446. (172) Ch. 5] EJECTION. g 73 return trip begins, another fare must be paid, and for such refusal the passenger may be ejected.^* Where a conductor tells a passenger that he will carry him between two points for a certain fare, the company is bound by this representa- tion ; and if the conductor demands a higher fare and the pas- senger refuses to pay it, and is ejected, he may maintain an action for such ejection.^^ Where a passenger drops a piece of money in the straw on the bottom of a street car, he is entitled to a reasonable length of time to search for his money.^* Where there was a controversy between the con- ductor and the passenger as to whether the passenger had paid his fare, the fact that the passenger could have pre- vented his ejection by giving the conductor another ticket will not reduce the damages to the sum represented by the value of the ticket, where the conductor, with the delay of a few minutes, could have made an investigation which would have definitely determined whether or not the plain- tiff had paid his fare.^^ After the ejection has commenced, it is proper to continue it, notwithstanding a tender of the fare."* If a passenger in an open car chooses to change to a closed car attached to it, he is rightly ejected for refusing to pay a second fare.^^ A rule that a passenger shall pay a larger sum in cash than that needed for a ticket is unrea- sonable where the passenger is taken on where tickets are not 14 Wimmer v. Union Traction Co., 12 Pa. Super. Ct. 467. 15 Wright V. Glens Falls, S. H. & F. B. St. R. Co., 24 App. DIv. (N. Y.) 617. 18 Hall V. Second & Third Sts. Passenger Ry. Co., 14 Wkly. Notes Cas. (Pa.) 242. 17 Sprenger v. Tacoma Traction Co., 15 Wash. 660. 17a Garrison v. United Rys. & Elec. Co. (Md.) 55 Atl. 371. isLasker v. Third Ave. R. Co., 27 Misc. Rep. (N. Y.) 824. (173) § 74 STREET RAILWAY ACCIDENT LAW. [Ch. S for sale.^*^ Where a passenger asked if a car was an M. P. car, and the conductor said that it was, the fact that the car was coming from and not going towards M. P. was held not to relieve the passenger from paying another fare after reaching the terminus.^^^ § 74. Same — What is a reasonable tendei The question as to what is legal tender for car fare, hoth as to the quality and the amount of the sum offered, has arisen several times. A genuine silver coin of the United States (a half dollar of 1824), distinguishable as such, though somewhat rare, and differing in appearance from other coins of this government of like denomination and of later dates, is nevertheless a legal tender for car fare, and a passenger ejected for refusal to make payment otherwise than by ten- dering such a coin is entitled to an action for damages.-'^ Similarly, a genuine silver coin worn smooth by use, not appreciably diminished in weight, and distinguishable, is a legal tender for car fare, and a passenger ejected for refusal to make other payment can maintain an action for such ejection.^" Where a passenger tenders the exact fare in legal coin, he is wrongfully ejected, even though the coin is so worn that the conductor honestly believes it is not good.^-'- A dollar bill, however, from the upper left-hand corner of which a piece one inch and a half by one inch and a quarter has been torn, is not a legal tender for car fare, and the 18a Kennedy v. Birmingham Ry., L. & P. Co. (Ala.) 35 So. 108. 18b McGarry v. Holyoke St. R. Co., 182 Mass. 123. 19 Atlanta Consol. St. Ry. Co. v. Keeny, 99 Ga. 266. so Mobile St. Ry. Co. v. Watters, 135 Ala. 227; Jersey City & B. R. Co. V. Morgan, 52 N. J. Law, 60. 21 Ruth V. St. Louis Transit Co. (Mo. App.) 71 S. W. 1055. (174) Ch. 5] EJECTION. § 74 conductor may eject a passenger who refuses to make other payment. He is not bound to accept a bill which is substan- tially mutilated.^^ A passenger upon a street railroad is not bound to tender the exact fare, but must tender a reasonable sum, and the carrier must accept such tender, and furnish change to a reasonable amount.^* The authorities are not in harmony as to what is a rea- sonable sum. In California it has been held that the tender of a five-dollar gold piece is reasonable.^* The court said: "It does not follow, if it be established as a rule that five dollars in a reasonable amount to be tendered to a conductor, that twenty dollars or fifty dollars is also a reasonable amount, and must be accepted. The fears of the appellant are based upon the assumption that passengers generally will con- tumaciously, to avoid the payment of fare, and require the companies to carry them free, offer coin of a large denomi- nation; but these fears, we think, can safely be set aside upon the theory that a question like this will settle itself by a spirit of mutual accommodation between carrier and passenger. It is a well-known fact that the five-dollar gold piece is practically the lowest gold coin in use in this sec- tion of the country." In ISTew York, on the contrary, it has been held that a rule of a street car company in a large city, requiring its conductors to furnish change to passengers to the amount of two dollars, is reasonable, and a tender of a five-dollar 22 North Hudson County Ry. Co. v. Anderson, 61 N. J. Law, 248. 23 Barrett v. Market St. Ry. Co., 81 Cal. 296; Barker v. Central Park, N. & B. R. R. Co., 151 N. Y. 237; Muldowney v. Pittsburg & B. Traction Co., 8 Pa. Super. Ct. 335. 24 Barrett v. Market St. Ry. Co., 81 Cal. 296. (175) § 75 STREET RAILWAY ACCIDENT LAW. [Ch. 5 bill is unreasonable, and need not be. accepted.^^ In com- menting upon the California case just cited, the court said: "It is quite possible that there existed local reasons for the decision in California, as the judge writing the opinion sug- gested that the five-dollar gold piece was practically the lowest gold coin in use in that section of the country." In Pennsylvania, also, it has been held that the tender of a iive-dollar bill for a five-cent fare is unreasonable as matter of law, and that the conductor is not bound to receive it.2« § 75. Conduct. Ejection may also be made for misconduct. A passenger may offend by his language, as by calling the conductor a liar in the presence and hearing of other passengers, with- out having been reasonably provoked to the use of such language by the improper conduct of the conductor, and in such a case he is rightfully ejected.^' So, if his language to the conductor is abusive and insulting.^* In Chicago City Ey. Co. v. Pelletier^^ the court said: "Undoubtedly, if he was using profane, vulgar, and indecent language, having a tendency to oifend and annoy passengers, the con- ductor would have the right to stop the car and order him off, and, on his refusal to go, might eject him, using such force as might be necessary for that purpose. A person who will not behave with ordinary decency upon a car, 25 Barker v. Central Park, N. & E. R. R. Co., 151 N. Y. 237. 26 Muldowney v. Pittsburg & B. Traction Co., 8 Pa. Super. Ct. 335. 27 Eads V. Metropolitan Ry. Co., 43 Mo. App. 536. 28 Flynn v. Central Park, &c., R. Co., 49 N. Y. Super. Ct. 81. 20 33 111. App. 455. (1Y6) Ch. 5] EJECTION. § 75 and will not leare it at the command of the condnctor, may be treated as a trespasser thereon, whether he has paid fare or not, and, as such, ejected." In affirming the judgment of the appellate court,^" the court took pains to bring out the point that the duty of the company in preventing the use of offensive language on its cars was for the protection of its passengers, and arose out of its duty to them. Thus it was held that the conductor has no right to put a passenger off his car for the use of vulgar and indecent language in a tone loud enough to attract the attention of other passengers, and refusing to desist, unless such language is calculated to annoy and disturb them. The court said: "It seems to be contended that the fact that the attention of the pas- sengers, or any number of them, was attracted by the lan- guage, whether it was calculated to annoy or disturb them or not, would justify the ejection of a passenger. Such is- not the rule. Railway companies are not conservators of the public or of private morals. * * * However strong- ly the use of indecent langaiage in a public conveyance should be condemned, it is apparent that the use of such language, attracting a few persons on the rear platform or seat, might create neither annoyance nor disturbance, while the same language used at other times, in the presence of others, or under different circumstances, would be highly offensive, and justly subject the passenger who persists in using the same to ejection from the car." In Maine, by statute, the use of indecent or profane language in a street railroad car is a breach of the peace, and the conductor of the car may remove a person guilty 80 Chicago City Ry. Co. v. Pelletier, 134 111. 120. (ITT) Ry. Ace— 12. § 75 STREET RAILWAY ACCIDENT LAW. [Ch. 5 of such breach of peace from the car, or may arrest him.^^ The court said : "It is the opinion of the court that he may rightfully be removed from the car, not as a punishment for his insult to the conductor as an individual, but to vindicate the authority of the law, which forbids the use of such language in a street car or any other public place where women and children have a right to be." Besides the use of profane and indecent language, a passenger may be guilty of other misconduct which will justify expulsion. As in the case of improper language, the comfort and convenience of the other passengers is the test to be kept in mind; and the rule as usually stated is that the company not only have the power, but it is their duty, to expel from their cars persons who are disorderly to the inconvenience and annoyance of other passengers.^- It is not necessary for those in charge of the car to wait until some actual disturbance takes place, but a reasonable anticipation of conduct that will prove offensive or annoy- ing to other passengers is sufficient.^* The fact that a passenger is drunk will not in every case justify his expulsion. It is rather the degree of intoxiea- 31 Robinson v. Rockland, T. & C. St. Ry., 87 Me. 387. 32 West Chicago St. R. Co. v. Luleich, 85 111. App. 643 ; Vin+on v. Middlesex R. Co., 11 Allen (Mass.) 304; Murphy v. Union Ry. Co., 118 Mass. 228; Higgins v. Watervllet Turnpike & R. Co., 46 N. Y. 23; Putnam v. Broadway & S. A. R. Co., 55 N. Y. 108; Flynn v. Cen- tral Park, &c., R. Co., 49 N. Y. Super. Ct. 81; Edgerly v. Union St. R. Co., 67 N. H. 312. 33Lemont v. Washington & G. R. Co., 1 Mackey (D. C.) 180; Vinton v. Middlesex R. Co., 11 Allen (Mass.) 304; Murphy V. Union Ry. Co., 118 Mass. 228; Hudson v. Lynn & B. R. Co., 178 Mass. 64; Cobb V. Boston El. Ry. Co., 179 Mass. 212; Edgerly v. Union St. R. Co., 67 N. H. 312. (1Y8) Ch. 5] EJECTION. I 75 tion, its effect upon the passenger, and the fact that, by reason of the intoxication, he is dangerous or annoying to other passengers, that gives the right of expulsion.^* A con- ductor has the right to eject a passenger who is intoxicated, and has vomited upon the floor of the car,^^ and a passenger who, although sober, is afflicted with severe vomiting.^® A conductor should remove a drunken passenger, who is vomiting profusely, at once, and need not wait until a pas- senger who is entering has taken her seat, and the aisle is clear. ^'^ Where a conductor ejected a passenger afflicted with St. Vitus' dance, it was held to be no excuse that there was a rule of the company forbidding intoxicated persons to ride, and that the involuntary motions of the plaintiff resembled those of an intoxicated man.^* Where a passenger troubled with heart disease was taken sick on a car, and, when re- moved, died within a few minutes, there was held to be no evidence that the company caused the passenger's death. ^* A rule of a street railway company forbidding passengers to stand on the platform when there is room inside the car is a reasonable regulation, and a passenger who refuses to obey it is rightfully ejected ;*° but where there is a rule for- bidding riding. on the front platform, and fare is collected from a passenger who rides on the front platform when the 34 Putnam v. Broadway & S. A. R. Co., 55 N. Y. 108. 35 Converse v. Washington & G. R. Co., 2 MacArthur (D. C.) 504. 36 Conolly v. Crescent City R. Co., 41 La. Ann. 57. 37 Cobb v. Boston El. Ry. Co., 179 Mass. 212. 38 Regner v. Glens Falls, S. H. & P. B. St. R. Co., 74 Hun (N. Y.) 202. 38 Briggs V. Minneapolis St. Ry. Co., 52 Minn. 36. 40 Ft. Clark St. R. v. Ebaugh, 49 111. App. 582; McMillan v. Fed- eral St. & P. V. Passenger Ry. Co., 172 Pa. 523. (179) §75 STREET RAILWAY ACCIDENT LAW. [Ch. 5 car is crowded, lie cannot be ejected unless his fare is re- turned.*^ The fact that a passenger feels sick is no excuse for his violating this rule.*^ Where a passenger goes on a car with a dog, and refuses to leave when told that he is violating a rule of the company, he is rightfully ejected;** and the reasonableness of a rule of the company forbidding the carrying of live animals in the cars is for the court, not for the jury.** A rule that passengers must not take into street cars packages or goods that are cumbersome or dangerous is reasonable as a matter of law; and where a passenger with a valise and two rifles, with bayonets attached, boarded a closed street car, in which there were several passengers, he was rightfully ejected.*^ In Morris v. Atlantic Ave. K. Co.,*^ whether two pack- ages were so large as to inconvenience other passengers, with- in a rule of the company, and thus necessitate the payment of an extra fare, was held to be a question for the jury, and the decision of the conductor not conclusive. A conductor has a right to eject a pasenger who is at- tempting to get on the car at an unreasonable place, forbidden by the rules of the company.*'^ A passenger who refuses to remove his muddy boots from the cushions of the seats is rightly ejected.** 11 Hanna v. Nassau Electric R. Co., 18 App. Div. (N. Y.) 137. 42 Montgomery v. Buffalo Ry. Co., 165 N. Y. 139. 43 Butler V. Steinway Ry. Co., 87 Hun (N. Y.) 10. 44 Daniel v. North Jersey St. Ry. Co., 64 N. J. Law, 603. 45 Dowd V. Albany Ry. Co., 47 App. Dlv. (N. Y.) 202. 46 116 N. Y. 552. 47 Lesser v. St. Louis & S. Ry. Co., 85 Mo. App. 326. 48 Davis V. Ottawa Electric Ry. Co., 28 Ont. 654. (ISO) Ch. 5] EJECTION. § 77 § 76. Color. A conductor cannot eject a passenger on accotint of color,** and a regulation of the company will not justify him in such ejection.^" A law providing for separate but equal ac- commodations for white and colored passengers is constitu- tional.^"^ II. Manner^ Place and Time of Ejection. It does not require the use of "force," in the general accept- ance of the term, to constitute an ejection. Mere contact is enough, and even this is not always necessary. Leaving a car under protest is enough, and forcing a child, by threats or gestures, to jump from a moving car, constitutes an ejection. Ejection must be performed in a reasonable manner, and at a reasonable place and time. § 77. What constitutes ejection. "Force," in its legal significance, may mean merely con- tact. Thus, in Watson v. Oswego St. Ry. Co.,^^ the con- ductor ordered the plaintiff, who was weak from the effect of drugs, to leave the car, and placed his hand on his arm. The plaintiff complied with the order, being assisted by the conductor and a friend, he being helpless at the time. It was held that, if the physical contact of the con- ductor was in the slightest degree a constraining power in 40 Pleasants v. North Beach & M. R. Co., 34 Cal. 586; Turner v. North Beach & M. R. Co., 34 Cal. 594; Derry v. Lowry, 6 Phila. (Pa.) 30. 50 Derry v. Lowry, 6 Phila. (Pa.) 30. 50a State V. Pearson (La.) 34 So. 575. 517 Misc. Rep. (N. Y.) 562. (181) § 78 STREET RAILWAY ACCIDENT LAW. [Ch. 5 causing the plaintiff to act and leave the car, it constituted "force," in the legal acceptance of the term. Where a con- ductor took a girl by the arm, intending to remove her from the car against her will, this was held to be forcible remov- al.^^ Personal injury is not essential to a recovery. ^^ It is even held that actual physical contact is not necessary to constitute an ejection. It is enough to show that a pas- senger left the car, under protest, in obedience to the orders of the conductor.^* Forcing a child, by threats or gestures, to jump from a moving car, constitutes an ejection.^^ § 78. How performed. The right of ejection must be exercised in a reasonable manner. No more force than is necessary must be used in ejecting a passenger^^ or a trespasser.*^ 62 Curtis V. Sioux City & H. P. Ry. Co., 87 Iowa, 622. B3 Light V. Harrisburg & M. Electric Ry. Co., 4 Pa. Super. Ct. 427. 64 Highland Ave. & B. R. Co. v. Winn, 93 Ala. 306; Consolidated Traction Co. v. Taborn, 58 N. J. Law, 1; Ray v. Cortland & H. Trac- tion Co., 19 App. Div. (N. Y.) 530; Eddy v. Syracuse Rapid Transit R. Co., 50 App. Div. (N. Y.) 109; Laird v. Pittsburg Traction Co., 166 Pa. 4. 66 Bay Shore R. Co. v. Harris, 67 Ala. 6; Indianapolis St. Ry. Co. V. Hocliett (Ind.) 67 N. E. 106; Ansteth v. Buffalo Ry. Co., 9 Misc. Rep. (N. Y.) 419; Mt. Adams & E. P. Inclined Ry. Co. v. Doherty, 8 Ohio. Cir. Ct. R. 349; Sandford v. Hestonville, M. & P. P. Ry., 153 Pa. 300; Washington, A. & M. V. Electric Ry. Co. v. Quayle, 95 Va. 741; Richmond Traction Co. v. Wilkinson (Va.) 43 S. E. 622. 56 Nye V. Marysville & Y. C. St. R. Co., 97 Cal. 461; Converse v. Washington & G. R. Co., 2 MacArthur (D. C.) 504; Chicago City Ry. Co. V. Pelletier, 134 111. 120; Ft. Clark St. R. v. Ebaugh, 49 111. App. 582; Nussbaum v. Louisville Ry. Co., 22 Ky. Law Rep. 271; Eads V. Metropolitan Ry. Co., 43 Mo. App. 536; Lesser v. St. Louis & S. Ry. Co., 85 Mo. App. 326; Haman v. Omaha Horse Ry. Co., 35 Neb. 74; Jackson v. Second Ave. R. Co., 47 N. Y. 274; Lynch v. (182) Ch. 5] EJECTION. § 78 Indecent or insulting language used by a passenger will not justify a conductor in assaulting him.^^ If, however, the passenger uses the language with the intention of pro- voking the assault, he cannot recover.^* The court, in Weber v. Brooklyn, Q. C. & S. E. Co.,8» re- garded the decision in Scott v. Central Park, N. & E. R. R. Co.®^ as holding that language calculated or likely to bring about an assault will excuse the conductor, and re- fused to sanction this doctrine; but it seems probable that, in the Scott Case, language intended to provoke an assault was meant, the court sa5'ing: "If he suceeds in his efforts to bring about such a result." So, where a passenger refuses to alight, insultingly chal- lenges the conductor to put him off, and then violently as- saults the conductor upon his proceeding in a lawful man- ner to make the expulsion, the company is not liable for great and unnecessary violence used by the conductor f^ and in Wise v. South Covington & C. Ey.^^ it was held that a passenger who brought about an encounter by abusive Metropolitan El. Ry. Co., 90 N. Y. 77; Butler v. Steinway Ry. Co., 87 Hun (N. Y.) 10; Dowd v. Albany Ry., 47 App. Div. (N. Y.) 202; Caldwell v. Central Park, N. & E. R. R. Co., 7 Misc. Rep. (N. Y.) 67. 51 North Chicago City Ry. Co. v. Gastka, 128 111. 613; Amato v Sixth Ave. R. Co., 9 Misc. Rep. (N. Y.) 4. 58 Hanson v. Urbana & C. Electric St. Ry. Co., 75 111. App. 474; Weber v. Brooklyn, Q. C. & S. R. Co., 47 App. Div. (N. Y.) 306; Haman v. Omaha Horse Ry. Co., 35 Neb. 74. 69 Weber v. Brooklyn, Q. C. & S. R. Co., 47 App. Div. (N. Y.) 306; Scott V. Central Park, N. & E. R. R. Co., 53 Hun (N. Y.) 414. 00 47 App. Div. (N. Y.) 306. 61 53 Hun (N. Y.) 414. 62 City Electric Ry. Co. v. Shropshire, 101 Ga. 33. 63 17 Ky. Law Rep. 1359. (183) §78 STREET RAILWAY ACCIDENT LAW. [Ch. 5 language, and by an assault upon the conductor, was not entitled to recover, even if the conductor used excessive force. If a passenger provokes an assault by his own violence, he cannot recover.'* To sustain an action for trespass, it is not necessary to show malice.'^ The ejection must also be at a reasonable place, not dan- gerous to life and limb.®® A conductor has no right to eject a passenger from a moving car where there is an embankment of snow and ice on each side of the track,®^ or place a passenger, helpless from an apoplectic attack, in the open street on a bleak, drizzling December day,**^ or leave a helpless passenger in a dark road on a wet night, far from houses, near railroad tracks and marshy lands.®" Ejection must also be at a reasonable time. It is negli- gence for the conductor to throw a passenger who refuses to pay his fare from the front platform of a street car in the nighttime, when there is a liigh bank of snow on each side of the track, and the passenger has a right to resist to save his life.^" To justify throwing a passenger from a .swiftly moving car, the defendant must show circumstances proving an unusual act of this kind to be necessary, and it is not enough to show that plaintiff was a trespasser, and that 6-1 Sonnen v. St. Louis Transit Co. (Mo. App.) 76 S. W. '691; James v. Metropolitan St. Ry. Co., 80 N. Y. Siipp. 710. 6= Kirton v. North Cliicago St. R. Co., 91 111. App. 554. 66 Chicago City Ry. Co. v. Pelletier, 134 111. 120; Edgerly v. Union St. R. Co., 67 N. H. 312; Lynch v. Metropolitan Bl. Ry. Co., 90 N. Y. 77; Light v. Harrisburg & M. Electric Ry. Co., 4 Pa. Super. Ct. 427. 67 Sanford v. Eighth Ave. R. Co., 23 N. Y. 343. «8 Conolly V. Crescent City R. Co., 41 La. Ann. 57. «9 Hudson v. Lynn & B. R. Co., 178 Mass. 64. 70 Sanford v. Eighth Ave. R. Co., 23 N. Y. 343. (184) Ch. 5J EJECTION. § 73 only reasonable force was usedJ'' A passenger may recover for ejection from a moving train, although he is not in- jured.''^ The company has no right to seize a boy of ten, althongh he is a trespasser, and throw him from the car while it is in motion,''^^ or to so violently assault or frighten him as to cause him to fall from the car, or to jump from the car ;''^ and pushing a child from a moving car is negligence, wheth- er the child be regarded as a passenger or merely as a trespasser. ''^^ A pedestrian has a right to cross over a street car platform to avoid a block, and is wrongfully ejected for so doing.^* Where a driver put his hand on the shoulder of a boy of nine or ten, and told him to get off a moving car, the due care of the boy in getting off was held to be for the jury.'^ Where a driver ordered a newsboy to get off the car, and reached for his whip, it cannot be said that the plaintiff was negligent in alighting from the car while in motion, since it was not his voluntary act.'^^ Negligence in ordering '1 "Wright V. Union R. Co., 21 R. I. 554. 72 Oppenheimer v. Manhattan Ry. Co., 18 N. Y. Supp. 411. T3 Mt. Adams & E. P. Inclined Ry. Co. v. Doherty, 8 Ohio Cir. Ct. R. 349. i-'Lovett V. Salem & S. D. R. Co., 9 Allen (Mass.) 557; Ansteth v. Buffalo Ry. Co., 9 Misc. Rep. (N. Y.) 419, affirmed 145 N. Y. 210; Richmond Traction Co. v. Wilkinson (Va.) 43 S. E. 622. " Biddle v. Hestonville, M. & F. P. Ry. Co., 112 Pa. 551, followed 1 Mona. 553; Barre v. Reading City Passenger Ry., 155 Pa. 170; Hart V. West Side R. Co., 86 Wis. 483. '6 Shea V. Sixth Ave. R. Co., 62 N. Y. 180. T! Hestonville, M. & F. P. R. Co. v. Gray, 3 Wkly. Notes Gas. (Pa.) 421. 'sBaber v. Broadway & S. A. R. Co., 10 Misc. Rep. (N. Y.) 109. (1S5) § 78 STREET RAILWAY ACCIDENT LAW. [Ch. 3 a newsboy to get off a car running five miles an hour is for the jury."* In Healey v. City Passenger E. Co.,®" and in Murphy v. Union Ey. Co./^ negligence in removing a passenger from a moving street car was Iield to be a question for the jury ; and where a boy of seven jumped from a moving car, in obedience to the conductor's orders, negligence was held to be for the jury.^^ Where a passenger used abusive language to the conductor, and threatened to report him, and the conductor shoved him from the car while it was moving fast, the case was held to be rightly submitted to the jury;^^ and a conductor may push a passenger, who violently assaults him, off the car while it is in motion, without rendering the company liable for the injury, if he had reason to believe, at the time, that this action was necessary to his protection.®* It has been held that a passenger must leave the car when ordered to by the conductor, even though the order is un- warranted, and look to the company for damages, and that, if a struggle ensues, he can recover only for wanton inju- ries ;^^ and in North Chicago St. E. Co. v. Olds,*^ and in Kiley V. Chicago City Ey. Co.,®" it was held that a passenger's right to ride cannot be enforced by resistance, but by a civil action. '8 Indianapolis St. Ry. Co. v. Hockett (Ind.) 67 N. E. 100. 80 28 Ohio St. 23. 81118 Mass. 228. 82 Richmond Traction Co. v. Williinson (Va.) iA S. B. 622. 83 Plynn V. Central Park, etc., R. Co., 49 N. Y. Super. Ct. 81. 84 Hayes v. St. Louis R. Co., 15 Mo. App. 584. 85 Schaefer v. North Chicago St. R. Co., 82 111. App. 473. 86 40 111. App. 421. 87 189 111. 384. (186) Ch. 5] EJECTION. g 79. On the other hand, it has been held that, where a driver maliciously orders a passenger to leave the car, a failure to obey the order should not prevent recovery for injuries incurred during its enforcement f^ and in Denver Tramvs^ay Co. v. Eeed,^® the court inclined to the view that passengers have a right to defend their privileges when they are illegal- ly and unjustly assailed. Where a conductor seeks to throw a passenger from a moving car in the nighttime, when there is an embankment of snow and ice on each side of the track, the passenger has a right to resist to save his life.^° III. Mastee and Seevak"t. The company is liable for the acts of its employes done in the course of their employment, whether such acts are negligent or willful, but for acts outside the scope of their employment the company is not liable. There is a conflict of authority in those jurisdictions where exemplary damages are allowed on the question of holding the company liable for the wanton acts of its servants, wituout proof of authorization or ratification. § 79. Kesponsibility for acts of servant. A street car company is generally held liable for the acts of its employes performed in the course of their employment, whether such acts are merely negligent, or are wanton and reckless.^* 88 Louisville City Ry. Co. v. Mercer, 11 Ky. Law Rep. 810. 89 4 Colo. App. 500. 90 Sanford v. BigMh Ave. R. Co., 23 N. Y. 343. 91 Converse v. Washington & G. R. Co., 2 MacArthur (D. C.) 504; Savannah St., &c., R. Co. v. Bryan, 86 Ga. 312; North Chicago City Ry. Co. V. Gastka, 128 111. 613; Citizens' St. R. Co. v. Willoehy, 134 Ind. 563; Winnegar's Adm'r v. Central Passenger Ry. Co., 85 Ky. (187) § 79 STREET RAILWAY ACCIDENT LAW. [Ch. 5 In Stewart v. Brooklyn & C. E. Co.*^ tte court said: "By the defendant's contract with the plaintiff it had un- dertaken to carry him safely and to treat him respectfully; and while a common carrier does not undertake to insure against injury from every possible danger, he does under- take to protect the passenger against any injury arising from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger. * * * It is the injury that was suf- fered by the plaintiff while in the defendant's car, and not the motive which induced it, that constitutes the gist of the action. No reason exists for holding a master liable for the negligence of servants in his employment which does not with equal force preclude him from alleging intentional de- fault of the servant as an excuse for not performing a duty which he has undertaken. In the former case the negligence 547; Eads v. Metropolitan Ry. Co., 43 Mo. App. 536; Tanger v. South west Missouri Electric Ry. Co., 85 Mo. App. 28; Higgins v. Watervliel Turnpike & R. Co., 4G N. Y. 23; Isaacs v. Third Ave. R. Co., 47 N. Y, 122; Jackson v. Second Ave. R. Co., 47 N. Y. 274; Shea v. Sixtl Ave. R. Co., 62 N. Y. 180; Schultz v. Third Ave. R. Co., 89 N. Y. 242; Stewart v. Brooklyn & C. R. Co., 90 N. Y. 588; Palmeri v Manhattan Ry. Co., 133 N. Y. 261; Rown v. Christopher & T. St. R Co., 34 Hun (N. Y.) 471; Burns v. Glens Falls, S. H. & F. E. St. R Co., 4 App. Div. (N. Y.) 426; Luhrs v. Brooklyn Heights R. Co. 11 App. Div. (N. Y.) 173; Franklin v. Third Ave. R. Co., 52 App Div. (N. Y.) 512; Meyer v. Second Ave. R. Co., 8 Bosw. (N. Y.) 305; White v. Twenty-Third St. R. Co., 20 N. Y. Wkly. Dig. 510; Lyons v. Broadway & S. A. R. Co., 10 N. Y. Supp. 237; Moritz v Interurhan St. Ry. Co., 84 N. Y. Supp. 162; Passenger R. Co. v Young, 21 Ohio St. 518; Pittsburg, A. & M. P. Ry. Co. v. Dona hue, 70 Pa. 119; Smith v. Hestonville, M. & F. R. Co., 17 Phila (Pa.) 184. 92 90 N. Y. 588. (188) Ch. 5] EJECTION. § 79 of tBe servant is that of the master, and that is the ground of the master's liability ; in the latter, the act of the servant is the act of the master, the motive of the servant making no difference in regard to the legal character of the master's default in doing his duty." Thus, the company has been held liable for an unprovoked assault on a passenger,®^ and for a forcible and malicious ejection from the car."* In Isaacs v. Third Ave. E. Co.®'' it was held that such ejection v^as a wanton and willful trespass, not in the per- formance of the conductor's duty, and that the company was not liable therefor ; but this case was distinguished and prac- tically overruled in Stewart v. Brooklyn & C. E. Co."® The company is liable for the act of a driver"^ or a gate keeper"® in summoning a policeman, and having a passen- ger, with whom he had a dispute, arrested and locked up in the station house, although it has been held, on the con- 93 Savannah St., &c., R. Co. v. Bryan, 86 Ga. 312; Stewart v. Brooklyn & C. R. Co., 90 N. Y. 588; Luhrs v. Brooklyn Heights R. Co., 11 App. Div. (N. Y.) 173; Franklin v. Third Ave. R. Co., 52 App. Div. (N. Y.) 512; Smith v. Hestonville, M. & P. R. Co., 17 Phila. (Pa.) 184. 94 North Chicago City Ry. Co. v. Gastka, 128 111. 613; Citizens' St. R. Co. V. Willoeby, 134 Ind. 563; Winnegar's Adm'r v. Central Pas- senger Ry. Co., 85 Ky. 547; Tanger v. Southwest Missouri Electric Ry. Co., 85 Mo. App. 28; Burns v. Glens Palls, S. H. & P. B. St. R. Co., 4 App. Div. (N. Y.) 426; Lyons v. Broadway & S. A. R. Co., 10 N. Y. Supp. 237; Meyer v. Second Ave. R. Co., 8 Bosw. (N. Y.) 305. 95 47 N. Y. 122. 96 90 N. Y. 588. 97 West Chicago St. R. Co. v. Luleich, 85 111. App. 643; Rown v. Christopher & T. St. R. Co., 34 Hun (N. Y.) 471; White v. Twenty- Third St. R. Co., 20 N. Y. Wkly. Dig. 510. 98 Lynch v. Metropolitan El. Ry. Co., 90 N. Y. 77. (189) § 79 STREE3T RAILWAY ACCIDENT LAW. [Ch. 5 trary, that the company is not liable for the arrest of a pas- senger unless it ratifies the act, since the act is not within the scope of the conductor's authority.^* The company is liable for the act of a ticket agent in forcibly detaining a passenger.^"" But if the employe goes outside of his em- ployment, and without regard to his service, in order to effect some purpose of his own, wantonly commits a tres- pass, the company is not liable ;^°^ and a passenger cannot recover when he is ejected as the result of a dispute between himself and the conductor, wholly unconnected with the busi- ness of the company. ^"^ So it has been held that a trespass committed by a servant merely to prevent an annoyance to himself is not an act for which the master is liable, and that a driver's telling boys, who were running alongside of a car, to keep off, and his striking at them with the reins, are not enough to show that the driver was acting within the scope of his employment f^ and the company is not lia- ble for the act of an employe in arresting and prosecuting a passenger for passing counterfeit money, or violating an ordinance requiring payment of fare, unless the act was authorized or ratified, since such an act is not within the scope of the employe's authority.^"* A fortiori, the com- es Lezlnsky V. Metropolitan St. Ry. Co., 88 Fed. 437; Cunningham V. Seattle Electric Ry. & Power Co., 3 Wash. 471. 100 Palmeri v. Manhattan Ry. Co., 133 N. Y. 261. 101 North Chicago City Ry. Co. v. Gastka, 128 111. 613; Wlnnegar's Adm'r v. Central Passenger Ry. Co., 85 Ky. 547 ; Isaacs v. Third Ave R. Co., 47 N. Y. 122. 102 Burns v. Glens Falls, S. H. & F. B. St. R. Co., 4 App. Div (N. Y.) 426; Flynn v. Central Park, &c., R. Co., 49 N. Y. Super. Ct. 81. losMogk V. Chicago City Ry. Co., 80 111. App. 411. loiLafitte V. New OrleaJis, C. & L. R. Co., 43 La. Ann. 34; Cen tral Ry. Co. v. Brewer, 78 Md. 894. (190) Ch. 5] EJECTION. § 79 pany is not liable in the absence of authorization or direction for an assault on one who is not a passenger.'"'*^ A conductor's authority to eject a passenger from a car gives him no implied authority to arrest and prosecute a passenger for attempting to ride without paying fare.-'"^ The fact that it is the conductor's duty to eject trespassers does not necessarily rebut the inference that the driver was acting within the scope of his employment in directing a passenger to leave the car/"* but in Coll v. Toronto Ky. Co.^"'^ it was held that the company was not liable where the motorman puslied a newsboy off the car. An action for malicious prosecution will not lie where there is no proof of judicial proceedings. ■'"^ The company is not liable for the acts of one passenger to another, simply because such acts were done in the pres- ence of the conductor, and he knew they were done.^*** Where a rule of the company directs a conductor to call a policeman in case of trouble, the company is liable, in an action for malicious prosecution, when a conductor had a passenger arrested.*-"* A passenger may recover for being carried by her desti- nation against her will, and threatened by the conductor.'- ■'* 104a Blrmingliam Ry. & Bleo. Co. v. Mason (Ala.) 34 So. 207. 105 Little Rock Traction & Electric Co. v. Walker, 65 Ark. 144. 106 Baber v. Broadway & S. A. R. Co., 13 Misc. Rep. (N. Y.) 169. 107 25 Ont. App. 55. 108 Barry v. Third Ave. R. Co., 51 App. Dlv. (N. Y.) 385. 109 Springfield Consol. Ry. Co. v. Plynn, 55 111. App. 600. 110 Ruth V. St. Louis Transit Co. (Mo. App.) 71 N. W. 1055. 111 San Antonio Traction Co. v. Cra-wford (Tex. Civ. App.) 71 S. W. 306: (191) I 80 STREET RAILWAY ACCIDENT LAW. [Ch. 5 § 80. Exemplary damages. In some cases it is held that a street car company is noi liable in exemplary damages for the misconduct of its em- ployes in wrongfully ejecting passengers, unless it authorizes or ratifies their acts,^^^ while, in other cases, exemplary damages are allowed without any discussion of the question of authorization or ratification.^'^ The mere act of ejec- tion is not enough to warrant the recovery of exemplary damages, but there must be something more.^'* On the other hand, the good faith of an employe in ejecting a pas- senger is not necessarily a bar in an action for exemplary damages,^^^ while it has been held to be a bar in a criminal prosecution.^'® Knowingly keeping an employe after he has wantonly as- saulted a passenger is a ratification of the act, and renders 112 Redwood v. Metropolitan R. Co., 6 D. C. 302; Rouse v. Metro- politan St. Ry. Co., 41 Mo. App. 298; Muckle v. Roctiester Ry. Co., 19 Hun (N. Y.) 32; Wright v. Glens Falls, S. H. & F. E. St. R. Co., 2i App. Div. (N. Y.) 617; Eddy v. Syracuse Rapid Transit Ry. Co., 50 App. Div. (N. Y.) 109; Murphy v. Central Park, N. & E. R. R. Co., 48 N. Y. Super. Ct. 96 ; Donivan v. Manhattan Ry. Co., 49 N. Y. State Rep. 722. 113 City & Suburban Ry. v. Brauss, 70 Ga. 368 ; Atlanta Consol. St. Ry. Co. V. Keeny, 99 Ga. 266; Citizens' St. R. Co. v. Willoeby, 134 Ind. 563; Kiley v. Chicago City Ry. Co., 90 111. App. 275; Louis- ville City Ry. Co. v. Mercer, 11 Ky. Law Rep. 810; Lexington Ry. Co. V. Cozlne, 23 Ky. Law Rep. 1137, 64 S. W. 848; Baltimore & Yorktown Turnpike Road v. Boone, 45 Md. 344; Nashville St. Ry. v. Griffin, 104 Tenn. 81; Vassau v. Madison Electric Ry. Co., 106 Wis. 301. 11* Denver Tramway Co. v. Cloud, 6 Colo. App. 445; Pine v. St. Paul City Ry. Co., 50 Minn. 144; Hamilton v. Third Ave. R. Co., 53 N. Y. 25; Vassau v. Madison Electric Ry. Co., 106 Wis. 301. iioMalecek v. Tower Grove & L. R. Co., 57 Mo. 17. lie State v. McDonald, 7 Mo. App. 510. (192) Oh. 5] EJECTION. § 81 the company liable in exemplary damages;"' but mere re- tention of an employe without knowledge of his guilt will not authorize an inference of ratification.*'* Where a con- ductor assaulted a passenger, the attorney of the road de- fended him when he was arrested, and the managers of the railroad paid his fine, and he was retained, this justifies a finding of ratification."^ IV. Tickets and Teansfees. A passenger must conform to all reasonable regulations of the company as to place and time of transfer. Where a transfer bad upon its face is given to a passenger, or be is transferred without any evidence of his right to ride, the authorities are in conflict as to the rights and duties of the con- ductor on the car to which he has been transferred. Some cases justify the ejection of the passenger who does not present proper evidence of his right to ride, while others hold that the company is to blame for failing to provide proper evidence, and that the passenger may recover for his ejection. § 81. Place of transfer. A street car company cannot change its rules requiring a transfer ticket without due notice.'^'' A rule that the conductor shall detach the coupon on a ticket is a reasonable one, and if a passenger tears off the coupon, and refuses to show the main ticket, he is rightfully ejected.'^* A rule requiring a transfer check is not unreasonable, and 117 Tanger v. Southwest Missouri Electric Ry. Co., 85 Mo. App. 28. 118 Donivan v. Manhattan Ry. Co., 49 N. Y. State Rep. 722. 118 Denison & S. Ry. Co. v. Randell (Tex. Civ. App.) 69 S. W. 1013.. 120 Consolidated Traction Co. v. Taborn, 58 N. J. Law, 1. 121 Walker v. Dry Dock, B. B. & B. R. Co., 33 How. Pr. (N. Y.) 327.. (193> Ry. Ace— 13. ^ 81 STREZT RAILWAY ACCIDENT LAW. [Ch. S a passenger must comply with the conditions thereof, so that, when a passenger enters the car at a point other than that prescribed by the transfer check, which he has accepted, it is the duty of the conductor not to receive the ticket, and to require the payment of fare, and, if the passenger refuses to pay, the company is not liable for ejecting him.'^^ A municipal ordinance provided that the fare on a street railway should not exceed five cents, where a company operated a single line of its cars running between the same termini. Afterwards the company constructed other lines running to different termini, and it was held that a passen- ger had no right to ride on a car bound for one terminus, and then, at the junction, get upon another car, and ride to a different terminus all for one fare, and could be rightfully ejected for refusal to pay additional fare on the second car.''^^ It is a reasonable regulation to require transfer passen- gers to enter the cars within the prescribed limits of a sta- tion, but it is an unreasonable enforcement of this rule to -eject a passenger, who the company knew had paid fare, be- >cause he entered the car a few feet beyond the station line.'^^ A transfer ticket plainly marked for one line is good only for that line, but, where good on several lines, passengers may choose either.^ ^^ A rule of a street railway company carrying passengers over two sections of its line for one fare, which requires a passenger to keep and show, undetached by him, a coupon ticket as proof of his right to continue on the car beyond a T122 Percy v. Metropolitan St. Ry. Co., 58 Mo. App. 75. 123 Ellis V. Milwaukee City Ry. Co., 67 Wis. 135. 12* Nashville St. Ry. v. Griffin, 104 Tenn. 81. 125 Pine V. St. Paul City Ry. Co., 50 Minn. 144. <194) Ch. 5] EJECTION. § 82 given point, is reasonable as a matter of law, and a passen- ger refusing to obey such rule is rightfully ejected.^^® § 82. Time of transfer. In Muckle v. Rochester Ey. Co. ^^^ the court seemed to regard a rule that a transfer check must be used within ten minutes after arrival at the place of transfer as reasonable; but in Jenkins v. Brooklyn Heights E. Co.^^® the court ex- pressly declared that a rule requiring a transfer ticket to be used within ten minutes, regardless of the condition of the cars which the street railway company supplies during that time, is arbitrary and illegal. It is a reasonable rule that a transfer ticket must be used within fifteen minutes, and it is a passenger's duty to read such ticket; but if he has to wait more than fifteen minutes for his car, his ticket is good.-'^^ It has been held, however, that when the time limit set upon the transfer has expired, it is valueless, even if no car has come along.-'^^^ It seems that a passenger upon a ear of an electric rail- road, which is unreasonably delayed, has no right to insist upon riding, without the payment of another fare, upon an- other car of the same road, in order to sooner reach his des- tination. If the railroad company refuses to make the de- sired transfer, he must find his redress in damages for the breach of its contract with him.'^^" 128 De Lucas v. New Orleans & C. R. Co., 38 La. Ann. 930. 127 79 Hun (N. Y.) 32. 128 29 App. Div. (N. Y.) 8. 128 Heffron v. Detroit City Ry. Co., 92 Mich. 406. 129a Garrison v. United Rys. & Blec. Go. (Md.) 55 Atl. 371. 130 Taylor v. Nassau Electric R. Co., 32 App. Div. (N. Y.) 486. (195) §83 STREET RAILWAY ACCIDENT LAW. [Ch. 5 A transferred passenger has no right to take the first car that comes along, and force himself into a dangerous or improper position upon the car. His duty is to wait until a car approaches in proper condition to receive him, and, should no such car appear, he can maintain an action against the company for breach of its contract to carry him.^*' § 83. Transfer bad on face. Where a passenger on a street car presents to the con- ductor, as an evidence of his right to ride, a ticket or a transfer check which shows upon its face that he has no such right, the authorities are in irreconcilable conflict as to the propriety of ejecting such passenger. One class of eases treats the face of the ticket as the important considera- tion, and justifies the ejection of the holder of the defective ticket upon his refusal to pay fare, allowing him, as his only remedy, an action for breach of the carrier's contract, and not for his ejection.^^^ The other and the more numerous class of cases holds that the passenger has a right to rely on the acts and statements of the ticket agent or conductor, and that, if he is ejected on account of a defective ticket, when he has acted in good faith and without fault, the carrier is liable for such ejection.^^^ 131 Hanna v. Nassau Electric R. Co., 18 App. Div. (N. T.) 137. 132 Kiley v. Chicago City Ry. Co., 189 111. 384 ; Bradshaw v. South Boston R. Co., 135 Mass. 407; Keen v. Detroit Electric Ry., 123 Mich. 247; Woods v. Metropolitan St. Ry. Co., 48 Mo. App. 125; Anderson v. Union Traction Co., 7 Pa. Dist. R. 41. 133 Carpenter v. Washington & G. R. Co., 121 U. S. 474; Indian- apolis St. Ry. Co. V. Wilson (Ind.) 66 N. E. 950; Rouser v. North Park St. Ry. Co., 97 Mich. 565; Hayter v. Brunswick Traction Co., 66 N. J. Law, 575; Perrlne v. North Jersey St. Ry. Co. (N. J. Law) 54 (196) Ch. 5] EJECTION. § 83 Where a passenger presented a wrong transfer check, it was held that a street car conductor cannot be expected to listen to and decide upon the passenger's account of a dis- puted transaction relating to the sale of a transfer ticket by a conductor on another line, and the passenger should either pay his fare or get oif the car quietly, and then sue the com- pany for breach of contract.^^* In a similar case^^^ the court said: "The conductor of a street railway car can- not reasonably be required to take the mere word of a pas- senger that he is entitled to be carried by reason of having paid a fare to the conductor of another car, or even to re- ceive and decide upon the verbal statements of others as to the fact. The conductor has other duties to perform, and it would often be impossible for him to ascertain and de- cide upon the right of the passenger, except in the usual, simple, and direct way. The checks used upon the defend- ant's road were transferable, and a proper check, when given, might be lost or stolen, or delivered to some other person. It is no great hardship upon the passenger to put upon him the duty of seeing to it, in the first instance, that he re- ceives and presents to the conductor the proper ticket or check, or, if he fails to do this, to leave him to his remedy against the company for a breach of its contract. Other- Atl. 799; Muckle v. Rochester Ry. Co., 79 Hun (N. Y.) 32; Ray v. Cortland & H. Traction Co., 19 App. Div. (N. Y.) 530; Eddy v. Syra- cuse Rapid Transit Ry. Co., 50 App. Div. (N. Y.) 109; McMahon v. Third Ave. R. Co., 47 N. Y. Super. Ct. 282; Jacobs v. Third Ave. R. Co., 71 App. Div. (N. Y.) 199; Laird v. Pittsburg Traction Co., 166 Pa. 4; O'Rourke v. Street Ry. Co., 103 Tenn. 124; Lawshe v. Tacoma Ry. & Power Co., 29 Wash. 681. 134 Anderson v. Union Traction Co., 7 Pa. Dist. R. 41. 135 Bradshaw v. South Boston R. Co., 135 Mass. 407. (197) I 83 STREET RAILWAY ACCIDENT LAW. [Ch. 5 wise, the conductor must investigate and determine the ques' tion, as best he can, while the car is on its passage. The cir- cumstances would not be favorable for a correct decision in a doubtful case. A wrong decision in favor of the passenger would usually leave the company without remedy for the fare. The passenger disappears at the end of the trip ; and, even if it should be ascertained by subsequent inquiry that he had obtained his passage fraudulently, the legal remedy against him would be futile. A railroad company is not expected to give credit for the payment of a single fare. A wrong decision against the passenger, on the other hand, would subject the company to liability in an action at law, and perhaps with substantial damages. The practical re- sult would be, either that the railroad company would find itself obliged, in common prudence, to carry every passenger who should claim a right to ride in its cars, and thus to sub- mit to frequent frauds, or else, in order to avoid this wrong, to make such stringent rules as greatly to incommode the public, and deprive them of the facilities of transfer from one line to another, which they now enjoy." Where a passenger on a street car is given a wrong trans- fer check, and the conductor on the second car will not take it, the passenger must pay his fare or leave the car at the conductor's request, and hold the company liable for the con- sequences.^*' A passenger on an F. avenue street car, who was given a transfer stamped as good on "C." cars only, cannot recover damages against the company for the refusal of a conductor on a "B." car to accept the transfer, and his ejection of 136 Kiley v. Chicago City Ry. Co., 189 111. 384. (198) Ch. 5] EJECTION. § 83 plaintiff from such car, though transfers from the F. ave- nue line had theretofore been good on both cars; the trans- fer, as between the last conductor and the passenger, being conclusive against the latter's right to travel on "B." cars,, and his remedy, if any, being for the failure of the first con- ductor to furnish a proper transfer.^^^ Where a passenger offered a transfer check which in some manner had been torn in two, and the company offered evi- dence that it was the custom of many passengers to tear checks in two, and throw them down at the place of transfer,, so that any one could pick them up, and also that the defend- ant had a rule requiring a "proper transfer check," it was- held that this evidence should have been admitted, and, if established, the conductor would be justified in ejecting plain- tiff on his refusal to pay fare.^^^ In O'Rourke v. Street Ry. Co.^^® a passenger was ejected on the assumption that the time during which his transfer could be used had expired, when, as a matter of fact, the transfer tickets were wrongly punched nearly an hour earlier than the time when they were actually isanied. The court held that the plaintiff coiild recover for his ejection, and said : "It may be true, as suggested in some of the authori- ties, that the carrier can dispatch its business more con- veniently and expeditiously, and can avoid losses through fraud and imposition more readily, by treating the ticket as conclusive evidence of the passenger's right to be carried, than by taking and adopting his ex -parte statement of the 137 Keen v. Detroit Electric Ry. Co., 123 Mich. 247. 138 Woods V. Metropolitan St. Ry. Co., 48 Mo. App. 125. 139 103 Tenn. 124. (199) § 83 STKBBT RAILWAY ACCIDENT LAW. Ch. 5] real contract, when claimed to be different from the ticket; jet such ends, desirable as they may be and are, afford no legal sanction for the expulsion of the passenger who is with- out fault, and whose ticket fails alone through the mistake or negligence of the carrier's agent, nor does the undesirabil- ity render the expulsion of such person any the less a tor- tious breach of the contract. Every expulsion of a rightful passenger is wrongful." This case is cited and approved in the recent cases of Lawshe v. Tacoma Ey. & Power Co.-**" and Memphis St. Ey. Co. v. Graves.'*"^ A passenger on a street car, desiring to be transferred to another line, received a transfer ticket, on the margin of which the 9 o'clock a. m. hour was punched. The hour of 7 :30 o'clock was also punched. On the back of the transfer ticket was this sentence : "It is the duty of the person re- ceiving it, and one of the conditions upon which this check is accepted, that the passenger examine date and time, and ■see that the same are correct." Plaintiff made a timely re- quest for the transfer check, but it was not given him until he was in the act of leaving the car. The conductor of the car to which plaintiff was transferred refused to take the ticket, alleging that it was "two hours old." Plaintiff as- sured him that he had received the check from the conductor of the other car at 9 o'clock a. m., — immediately before en- tering the second car, — and refused to pay an additional fare. Plaintiff was ejected from the car. Held, that plain- tiff was entitled to recover.**^ 1140 29 Wash. 681. i4oa (Tenn.) 75 S. W. 729. i« Laird v. Pittsburg Traction Co., 166 Pa. 4. (200) Ch. S] EJECTION. g 83 The company had a rule that a transfer ticket must be used within ten minutes after the arrival at the place of con- nection. A passenger took such a transfer, and took tlie first car which passed, but the transfer check was wrongly punched, so that the time for its use appeared to have ex- pired, and the conductor of the second car ejected the plain- tiff. It was conceded that the passenger might have a rem- edy for breach of contract; but the court held, further, that the passenger might maintain an action for ejection, saying : ^'Although the conductor personally may have been justified, by his instructions, to do so, the defendant was put in the wrong by the act of the other conductor, and was no more justified in the attempted act of ejection than it would have been if the plaintiff had at the time had and presented the evidence of his right to remain as a passenger in the car without further payment."-'^^ When the time on a transfer ticket was wrongfully punched, and the passenger was not negligent in not discov- ering this, his ejection from a second car is wrongful.-'*^ In this case the court said: "To hold that the plaintiff's only remedy is an action for breach of the contract for trans- portation might encourage the employment of negligent or incompetent conductors, to the serious annoyance and incon- venience of the traveling public, and would not afford pas- sengers reasonable protection or security in their rights." To the same effect is Perrine v. ISTorth Jersey St. Ky. Co.^^* A street railway company is liable for ejecting a person who presents a transfer ticket from a connecting road, not i^Muckle V. Rocliester Ry. Co., 79 Hun (N. Y.) 32. 143 Eddy V. Syracuse Rapid Transit Ry. Co., 50 App. Div. (N. Y.) 109. i« (N. J. Law) 54 Atl. 799. (201) §83 " STREET RAILWAY ACCIDENT LAW. [Ch. 5 acceptable under the rules of the company because not prop- erly punched, though the mistake was made, by an employe of a connecting road, there being a traffic agreement between the two roads, whereby transfers were used from one to the other. Where one is ejected from a street car because his transfer ticket was not properly punched, he is not to be charged with contributory negligence in receiving the same, he not understanding the ticket, and being ignorant of wheth- er it was correctly punched.^*^ A transfer ticket of peculiar color and print consisted of two parts, the upper of which gave the passenger a right to ride on the second road. A conductor tore off part of the upper portion, and the conductor of the second road refused to accept this fragment, and ejected the passenger for his refusal to pay fare. It was held, as matter of law, that the conductor was bound to know that the fragment was a por- tion of a genuine ticket.^*^ So, when a passenger paid a through fare, and received a ticket from the conductor which the latter said was good for a stopover, although he had no right to issue any stop- over tickets to be used upon the same line, the passenger may recover for being ejected when his ticket was refused on the next car, and he refused to pay additional fare."' In Hayter v. Brunswick Traction Co.,^*^ a passenger was transferred, and the conductor of the first car told him which car to take, but the conductor of the second car told plaintiff that transfer was not good, and ejected him. It "5 Jacobs V. Third Ave. R. Co., 71 App. DIv. (N. Y.) 199. 1*8 Rouser v. North Park St. Ry. Co., 97 Mich. 565. 147 Ray V. Cortland & H. Traction Co., 19 App. Div. (N. Y.) 530. 148 66 N. J. Law, 575. (202) Ch. S] EJECTION. i^ t54 was held that the company was liable for such ejection. The conductor of the second car must accept the reasonable ex- planations of the passenger."^ Plaintiff, having paid for passage over defendant's route of street railway, was given, at an intermediate point there- on, in return for an additional sum paid by him, a ticket, on which were these words : "Third Ave. Ed. Co. ; good only from Sixty-Fifth street up to Yorkville and Harlem for a continuous ride. By order of the President." The ticket was indorsed: "Conductor's check, July 6, 1878." Plaintiff did not then use the ticket, but afterwards, and on the same day, he entered one of defendant's cars below, and paid fare to such intermediate point, and, at a place above said point, tendered the conductor the ticket. It was not accepted, and, on his refusal to again pay fare, he was ejected from the car. Held that, in the absence of knowl- edge by the plaintiff of any rule limiting his rights under said ticket, the company was liable for the above act of its servant. ^^^ A charge that a passenger could recover if he was given a wrong transfer ticket, and that the plaintiff could recover exemplary damages for malicious and wanton injury, was held eminently favorable to the plaintiff.^®^ § C4. Transfer without check In Wakefield v. South Boston E. Co.,^®^ — an action for an assault and battery by an agent of the defendant, — it was 140 Indianapolis St. Ry. Co. v. Wilson (Ind.) 66 N. B. 950. 160 McMahon v. Third Ave. R. Co., 47 N. Y. Super. Ct. 282. 151 Carpenter v. Washington & G. R. Co., 121 U. S. 474. 15= 117 Mass. 544. (203)' ^ S4 STREET RAILWAY ACCIDENT LAW. [Ch. 5 held that the provision of Gen. St. 1871, c. 381, § 36, that a passenger upon a horse car in the city of Boston shall, upon paying a sum in addition to the regular fare, receive a check entitling him to a passage, on the same day only, in any car run in the city between any tv70 points therein, with- out paying more than a sum named "for both of the passages aforesaid," does not entitle one who has received such a check, and who has once changed cars and surrendered his check in the second car at the request of the conductor, to a passage in a third car, proceeding farther upon the same line, although he is told by the conductor of the second car that he may ride on the third car without further payment of fare. In the course of the opinion, Colt, J., said : "The conductor of that car, whose duty it was to collect the fare, had no authority to give him a free passage upon his state- ment that the conductor of another car had promised it to him without any consideration. Conductors have no au- thority so to bind the corporation by which they are em- ployed." A passenger paid his fare, intending to go to T. street. The car did not go the whole distance, and the conductor told him he could get off and take the next car. The con- ductor on the next car told him he must pay or get off, and he was ejected. It was held that the passenger ought to have had evidence of the payment of his fare, and that the conductor was under no legal obligation to accept his state- ment; that the passenger should have paid his fare on de- mand, and sought redress from the company for a violation of the contract.i^* The court said: "Counsel has cited no authority, nor have I found one, which holds that a stranger i53Mahoney v. Detroit St. Ry. Co., 93 Mich. 612. <204) Oh. 5] EJECTION. § 84 may enter the car of either a railway or street car company without any evidence that he has paid his fare, and secure passage by his own statement to the conductor that he has previously paid it to some other authorized agent. It is the duty of the passenger to secure evidence of such pay- ment, or to pay when his fare is demanded. The business of such companies cannot be carried on upon any other basis. This certainly is common sense and experience." Plaintiff paid his fare on one of the defendant's e:irs. The car stopped for some reason, and he was transferred to another car. Upon his refusal to pay another fare, he was ejected by the conductor, who honestly supposed that fare had not been paid. It was held that the plaintiff could re- cover for compensatory damages.^ ^* Where a passenger told the conductor where he wanted to go, and was transferred, but given no transfer ticket, and he did not know that one was necessary, the company was held liable when the conductor of the second car ejected plaintiff for not having a transfer ticket, and refusing to pay fare.-'^^ A passenger was transferred, and the conductor took up his transfer check. Then the car was taken off. The con- ductor disappeared, and the driver told the plaintiff to take the next car. He did so, but was ejected because he had no transfer check, and refused to pay fare. It was held that the plaintiff showed, prima facie, a right to recover for the conduct of the defendant's agents, leading to and including the expulsion.^ ^® 154 Hamilton v. Third Ave. R. Co., 53 N. Y. 25. 155 City & Suburban Ry. v. Brauss, 70 Ga. 368. 156 Appleby v. St. Paul City Ry. Co., 54 Minn. 169. (205) § 85 STREET RAILWAY ACCIDENT LAW. [Ch. S § 85. Illiscellaneous. A company cannot change its rules not requiring a transfer ticket without due notice.-'^''' Where a conductor threatened to eject a woman for not paying fare, whether she was negligent or not in not getting a transfer is for the jury.^^* Where a plaintiff was transferred, but made to pay a second fare,^^^ and where a conductor wrongfully refused to accept a transfer, and demanded additional fare, but be- fore the passenger left the car, offered to return the fare, ' and take the transfer,^*" it was held that the company wasj. not liable under the general railroad act, which makes al-\ lowances for a mistake not amounting to gross negligence. | A city may require that a street railway operated under ' its control shall keep tickets for sale on each car, — six for twenty-five cents.'' ®^ Where a franchise from a village pro- vided that tickets should be kept on sale on the cars, they must be ready at any point on the line, and not only in the village.-'®^ One holding a street railway ticket good from L. to D. is entitled to carriage upon presentation of the ticket, although he has paid his fare to L. from a point farther out on the line, from which point the regular through fare exceeds the sum of the fare paid and the price of the ticket.^** 157 Consolidated Traction Co. v. Taborn, 58 N. J. Law, 1. 168 Little Rock Traction & Electric Co. v. Trainer, 68 Ark. 106. 159 Stewart v. Metropolitan St. Ry. Co., 20 Misc. Rep. (N. Y.) 605. 160 Tullis V. Brooklyn Heights R. Co., 71 App. Div. (N. Y.) 494. And see Goodspeed v. Ithaca St. Ry. Co., 84 N. Y. Supp. 383. 161 Sternberg v. State, 36 Neb. 307. 162 Rice V. Detroit, Y. & A. A. Ry., 122 Mich. 677. i63Kissane v. Detroit, Y. & A. A. Ry., 121 Mich. 175. (206) Ch. S] EJECTION. § 85 In Cronin v. Highland St. Ey. Co./^* — an action for being expelled from a car of the defendant corporation, — it ■was held that, under Pub. St. e. 113, § 47, providing that a commutation check issued by a street railway in Boston shall entitle the holder "to a passage on the same day only in any car run by any other company between any two points in said city, but not to a passage over the same route on which the check was issued, or a route parallel thereto, and between and including two common points," the holder of such a check, in returning towards his starting point, is not entitled to be carried upon the check in the car of another company, whose route is substantially parallel to the route of the company issuing the check, and is between and in- cludes two common points, although a wide detour is made at one place in the route of the latter company between the two common points. 164 144 Mass. 249. (207) PART II. ACCIDENTS TO TRAVELERS ON THE HIGHWAY. CHAPTER VI. PEDESTRIANS RUN OVER. I. Adults. § 86. Due Care — General Considerations. 87. Same — Intoxicated and Infirm Persons. 88. Same — Crossing Tracks — Stopping, Loolcing, and Listen- ing. 89. Same — Walking on or near Track. 90. Same — Crossing Where There are Double Tracks. 91. Same — Laborer Working on or near Track. 92. Same — Miscellaneous. 93. Right of Way. 94. Negligence of Company — General Considerations. 95. Negligence in Operation — Lookout, Speed, Warning, etc. 96. Same — Laborer Working on or near Track. 97. Same — Miscellaneous. II. Childeen. § 98. Capacity of Child. 99. Due Care of Child, for Jury. 100. Lack of Due Care of Child. 101. Due Care of Parent or Person In Charge of Child — Allowing Child In Street. 102. Same — ^Leaving Child Alone in or near the House. 103. Negligence of Company — Right of Way. 104. Same — General Considerations. 105. Same — Negligence in Operation. (208) Ch. 6] PEDESTRIANS RUN OVER. § 86 I. Adults. A pedestrian must use ordinary care, under the circumstances, in approaching and crossing a street railway track, and in walk- ing near or upon the track. A street railway company does not owe to pedestrians the same high degree of care which it owes to its passengers, but is bound to exercise ordinary care towards them; and even if a pedestrian is guilty of lack of due care, the company is nevertheless liable if it could have prevented the accident by the use of ordinary care. Between crossings, a street car has a superior right of way, since it cannot leave its tracks, and is run for the benefit and convenience of the public, but at street crossings, the rights of street cars and pedestrians are equal. A pedestrian is not required to stop, look, and listen before crossing a street railway track, and there is a conflict of au- thority as to whether he must look and listen or look before crossing, as a matter of law. If a pedestrian goes suddenly in front of a car without looking, he is almost invariably held una- ble to recover. In determining the questions of due care and negligence, all the surrounding circumstances in each particular case are taken into consideration. The chief considerations are the character of the locality, the speed of the car, and its distance from the pedestrian, whether a warning was given, the obstruction of the view or of the track, and the occupation of the plaintiff. § 86. Due care — General considerations. Ordinary care is all that is required of a traveler in ap- proaching and crossing street railway tracks,-' although a iDriscoll V. Market St. Cable Ry. Co., 97 Cal. 553; Kernan v. Market St. R. Co., 137 Cal. 326; West Chicago St. R. Co. v. NHson, 70 111. App. 171; Baltimore Consol. Ry. Co. v. Rifcowitz, 89 Md. 338;. Bunyan v. Citizens' Ry. Co., 127 Mo. 12; Newark Passenger Ry. Co.. V. Block, 55 N. J. Law, 605; Connelly v. Trenton Passenger Ry. Co... 56 N. J. Law, 700; Consolidated Traction Co. v. Chenowith, 58 N. J. Law, 416; Consolidated Traction Co. v. Glynn, 59 N. J. Law, 432;, McGrath v. North Jersey St. Ry. Co., 66 N. J. Law, 312. (209) Ry. Ace. — 14. § 86 STREET RAILWAY ACCIDENT LAW. [Ch. 6 higher degree of care is necessary in crossing the tracks of an electric railway than in crossing the tracks of a horse railway.^ The consideration of the question of a person's due care is not limited to his conduct after he becomes aware that he is in danger;^ and even if the company is negligent, the plaintiff cannot recover if he should have become aware of such negligence, and could have avoided it by the use of ordinary care.* Thus, failure to ring a gong does not ex- cuse a person about to cross the track from the exercise of proper care.^ It is almost universally held that, even if a person is guilty of lack of due care, the company is nevertheless liable if they could have prevented the accident by the use of the ordinary care required of them f although, in Scott v. Third Ave. R. Co.,'^ it was held that an instruction to this effect 2 Hawthorne v. Cincinnati St. Ry. Co., 2 Ohio Dec. 548. a Chicago West Div. Ry. Co. v. Haviland, 12 111. App. 561. 4 Macon & I. S. St. R3'. Co. v. Holmes, 103 Ga. 655. "McQuade v. Metropolitan St. Ry. Co., 17 Misc. Rep. (N. Y.) 154. 1 Oliver v. Denver Tramway Co., 13 Colo. App. 543; Atlanta Ry. & Power Co. v. Walker, 112 Ga. 725; Floyd v. Paducah Ry. & Light •Co. (Ky.) 73 S. W. 1122; Baltimore Traction Co. v. Wallace, 77 Md. 435 ; North Baltimore Passenger Ry. Co. v. Arnreich, 78 Md. 589 ; Baltimore Consol. Ry. Co. v. Rifeowitz, 89 Md. 338; Werner v. Citi- zens' Ry. Co., 81 Mo. 368; Bunyan v. Citizens' Ry. Co., 127 Mo. 12; Watson V. Mound City St. Ry. Co., 133 Mo. 246; Holwerson v. St. Louis & S. Ry. Co., 157 Mo. 216; Meyer v. Lindell Ry. Co., 6 Mo. App. 27; Davies v. People's R. Co., 67 Mo. App. 598; O'Keefe v. St. Louis & S. R. Co., 81 Mo. App. 386; Aldrich v. St. Louis Transit Co. (Mo. App.) 74 S. W. 141; Shanks v. Springfield Traction Co. fMo. App.) 74 S. W. 386; Parkinson v. Concord St. Ry., 71 N. H. 28; McKeon v. Stelnway Ry. Co., 20 App. Div. (N. Y.) 601; Healey v. Dry Dock, E. B. & B. R. Co., 46 N. Y. Super. Ct. 473; Richmond Passenger & Power Co. v. Steger (Va.) 43 S. E. 612. 7 59 Hun (N. Y.) 456. (210) Ch. 6] PEDESTRIANS RUN OVER. § 87 was erroneous. In some eases, although the correctness of the rule is not questioned, it is held not applicable to the state of facts presented.* Conduct of travelers which be- comes dangerous only when those in charge of street cars neglect to observe the usual precautions should not be treated as contributory negligence defeating the right of recovery.* Where a woman crosses the street at an unusual place, she must use greater care than if she had used the customary crossing.^" A person placed in sudden peril is not held to the usual standard of care.'^-' § 87. Same — Intoxicated and infirm persons. Intoxication does not relieve a man from the degree of care required of a sober man under the same circumstances '^^ and if a traveler is intoxicated, and would not have been injured if he had been sober, he cannot recover.^^ While the fact that a man is intoxicated is no excuse for him, and sRies V. St. Louis Transit Co. (Mo.) 77 S. W. 734; Trauber v. Third Ave. R. Co., 80 App. Div. (N. Y.) 37; Phelan v. Forty-Second St., M. & St. N. Ave. Ry. Co., 79 App. Div. (N. Y.) 548; Poole v. Metropolitan St. Ry. Co., 83 App. Div. (N. Y.) 235. aWahlgren v. Market St. Ry. Co., 132 Cal. 656; Lang v. Houston, W. S. & P. Ferry R. Co., 75 Hun (N. Y.) 151; Walls v. Rochester Ry. Co., 92 Hun (N. Y.) 581; Schwarzbaum v. Third Ave. R. Co., 54 App. Div. (N. Y.) 164, 60 App. Div. 274; Frank v. Metropolitan St. Ry. Co., 58 App. Div. (N. Y.) 100; Dallas Rapid Transit Ry. Co. v. Elliott, 7 Tex. Civ. App. 216; Dallas Consol. Traction Ry. Co. v. Hurley, 10 Tex. Civ. App. 246. 10 Henry v. Grand Ave. Ry. Co., 113 Mo. 525. 11 North Chicago St. R. Co. v. Louis, 35 111. App. 477. 12 Chicago City Ry. Co. v. Lewis, 5 111. App. 242; Bageard v. Con- solidated Traction Co., 64 N. J. Law, 316. 13 Bradley v. Second Ave. R. Co., 8 Daly (N. Y.) 289. (211) § 83 STREET RAILWAY ACCIDENT LAW. [Ch. 6 does not require the company to use greater care,'* a drunken man is as much entitled to the exercise of due care on the part of the company as a sober man, and much more in need of it.^® The fact that a plaintiff was an old man over seventy, with his hearing very considerably impaired, is a material circumstance bearing on his due care;^® and it has been held that a deaf man is held to the degree of care which a pru- dent man under his disabilities would use,^'' and that it is incumbent upon a deaf man to be more alert in the use of his other senses.-'® § 88. Same — Crossing tracks — Stopping, looking, and listen- ing. Perhaps the most important consideration bearing upon the question of the due care of a traveler who attempts to pass in front of a street car, and is run over, is whether or not he looked for an approaching car. It is well settled that a person who goes directly in front of a street car, where there is evidence either that he did not look or that there was an unobstructed view, so that he might have looked, is not in the exercise of due care.^® 1* Weeks v. New Orleans & C. R. Co., 32 La. Ann. 615. 16 West Chicago St. R. Co. v. Ranstead, 70 III. App. 111. 16 Chicago West Div. Ry. Co. v. Haviland, 12 111. App. 561. 17 Buttelli V. Jersey City, H. & R. Electric Ry. Co., 59 N. J. Law, 302. IS Beem v. Tama & T. Electric Ry. & Light Co., 104 Iowa, 563; Hall V. West End St. Ry. Co., 168 Mass. 461. 10 Schwartz v. Crescent City R. Co., 30 La. Ann. 15; Mathes v. Lowell, L. & H. St. Ry., 177 Mass. 416; Dooley v. Greenfield & T. F. St. Ry. Co. (Mass.) 68 N. E. 203; Kelly v. Hendrie, 26 Mich. 255; McGee v. Consolidated St. Ry. Co., 102 Mich. 107; Hickey v. St. Paul City Ry. Co., 60 Minn. 119; Terien v. St. Paul City Ry. Co., (212) Ch. 6] PEDESTRIANS RUN OVER. § 88 This is the general rule, but certain phases of the mental or physical condition of the plaintiff, and the general con- ditions existing at the time of the accident, remain to be con- sidered as bearing in favor of or against the plaintiff's case. A traveler who walks upon the track without stopping to look or listen, with his eyes on the ground, apparently ab- sorbed in thought, is not in the exercise of due care,^° nor is one who starts to cross a street railway track looking upon the ground "in a brown study," and not looking up or down the street.^-' An elderly man, a little deaf, who heedlessly attempts to cross a street car track, and is run over, is not in the exercise of due care f^ and the same ruling was made in the case of a man who had good eyesight, but was very deaf, and who walked onto a street car track, where he had 70 Minn. 532; Baly v. St. Paul City Ry. Co. (Minn.) 95 N. W. 757; Bunyan v. Citizens' Ry. Co., 127 Mo. 12; Watson v. Mound City St. Ry. Co., 133 Mo. 246; Moore v. Lindell Ry. Co. (Mo.) 75 S. W. 672; McGrathv. North Jersey St. Ry. Co., 66 N. J. Law, 312; Dollar V. Union Ry. Co., 7 App. Div. (N. Y.) 283; Curry v. Rochester Ry. Co., 90 Hun (N. Y.) 230; Harnett v. Bleecker St. & P. Fer- ry R. Co., 49 N. Y. Super. Ct. 185; Cowan v. Third Ave. R. Co., 1 N. Y. Supp. 612; Enk v. Brooklyn City R. Co., 19 N. Y. Supp. 130; Muessman v. Metropolitan St. Ry. Co., 76 App. Div. (N. Y.) 1; McKinley v. Metropolitan St. Ry. Co., 77 App. Div. (N. Y.) 256; Smith v. City Ry. Co., 29 Or. 539; Wolf v. City & Suburban Ry. Co. (Or.) 72 Pae. 329; Kappus v. Metropolitan St. Ry. Co., 82 App. Div. (N. Y.) 13; Du Frane v. Metropolitan St. Ry. Co., 83 App. Div. (N. Y.) 298; Warner v. People's St. Ry. Co., 141 Pa. 615; Watkins v. Union Traction Co., 194 Pa. 564; Sullivan v. Con- solidated Traction Co., 198 Pa. 187; McCauley v. Philadelphia Traction Co., 13 Pa. Super. Ct. 354; Richmond Traction Co. v. Hilde- brand, 98 Va. 22. 20 Martin v. Third Ave. R. Co., 27 App. Div. (N. Y.) 52. 21 Cain V. Macon Consol. St. R. Co., 97 Ga. 298. 22 Webster v. New Orleans City & L. R. Co., 51 La. Ann. 299. (213) § 88 STREET RAILWAY ACCIDENT LAW. [Oh. 6 an unobstructed view, without looking;^' and in the very similar ease of a man seventy-one years old, and quite deaf, who walked across a street railway track without looking, when he could have seen an approaching car for a distance of over five hundred feet.^* In DriscoU v. Market St. Cable Ky. Co.^^ it was held that a street railway company is not liable to a traveler who walked suddenly in front of a moving car in a careless, reckless, or absent-minded way; and where a man saw an electric car approaching for a long distance, and had plenty of time to get out of the way, but jumped in front of the car, he was held unable to recover.^^ Where a woman looked up and down a suburban street, and saw no car, and then, wearing a sunbonnet which projected beyond her face, crossed without looking either to the right or left, and was run over by an electric car, which was sounding its gong, and was seen by several other persons several blocks before it reached the place of the accident, she was held not to be in the exercise of due care.^'^ Similarly, where a woman started to cross a street car track on a cold night with her head bundled up, and collided with the middle of a car, it was held that she was not entitled to recover f^ and a woman who saw a car, but walked against it with her umbrella raised, is not in the exercise of due care;^* but the due 23 Hall V. West End St. Ry. Co., 168 Mass. 461; Aldrich v. St. Louis Transit Co. (Mo. App.) 74 S. W. 141. 2i Beem v. Tama & T. Electric Ry. & Light Co., 104 Iowa, 563. 25 97 Cal. 553. 2« Jager v. Coney Island & B. R. Co., 84 Hun (N. Y.) 307. 27 Hickman v. Nassau Electric R. Co., 36 App. Dlv. (N. Y.) 376. 28 McQuade v. Metropolitan St. Ry. Co., 17 Misc. Rep. (N. Y.) 154. 29 Holmes v. Union Traction Co., 199 Pa. 229. (214) Ch. 6] PEDESTRIANS RUN OVER. § 88 care of a woman who crossed a street car track at night during a severe storm, and ventured on the track with her umbrella raised, without looking for an approaching car, was held to be for the jury.^° Where the plaintiff turned up his coat collar and pulled down his hat to protect him- self from the rain, and wallied directly in front of a car coming on a track parallel to the one occupied by the car he had just left, he was held not to be in the exercise of due care.^-' A traveler who crossed immediately in front of an electric car in the nighttime was held not to be in the exercise of due care f"^ and the same was held where a man stood near a street car track by night without showing any indication of his intention to cross, and then crossed when a car was so near that it could not be stopped.^^ Because a traveler could have looked, it cannot be legally inferred that he did so.^* The authorities are in hopeltss conflict as to whether a traveler should be required, as a matter of law, to "stop, look, and listen," "look and listen," or even "look," before crossing a street railway track. It is generally hold that the rules as to "stopping, looking, and listening," which are in force in the case of steam railroads, are not applicable in all their strictness to street railroads. ^^ soConley v. Albany Ry., 22 App. Div. (N. Y.) 321. 31 Macleod v. Graven, 73 Fed. 627. 32 Hoelzer v. Crescent City R. Co., 49 La. Ann. 1302. 33 Knoker v. Canal & C. R. Co., 52 La. Ann. 806. 84 O'Reilly v. Brooklyn Heights R. Co., 81 N. Y. Supp. 572. 35Driscoll V. Market St. Cable Ry. Co., 97 Cal. 553; Capital Trac- tion Co. V. Lusby, 12 App. D. C. 295; Terien v. St. Paul City Ry. Co., 70 Minn. 532; Brown v. Twenty-Third St. Ry. Co., 56 N. Y. Super. Ct. 356; McCauley v. Philadelphia Traction Co., 13 Pa. Super. Ct. 354. (215) § 88 STREET RAILWAY ACCIDENT LAW. [Ch. 6 In Hoekel v. Crescent City E. Co.^' it was held that the rule that a person about to cross a railroad track should ''stop, look, and listen" applied to an electric car; but in Farrar v. New Orleans & C. R. Co.*'^ the court held that i1 was too much to expect a traveler to "stop, look, and listen,'' and the same ruling was made in Evansville St. R. Co. \. Gentry,*^ while in McCauley v. Philadelphia Traction Co.^° it was held that the rule requiring a traveler to "stop, look, and listen" before crossing a steam railroad track applied only in part to street railways. In Baltimore Traction Co V. Helms,*" and in Baltimore Consol. Ey. Co. v. Eifco- witz,*^ it was held that a failure to stop and look before crossing a street railway track will not always be contribu- tory negligence. Some jurisdictions hold that it is a traveler's duty tc "look and listen" before crossing a street railway track, and that, if he does not do this, he is not in the exercise of due care.*^ In other jurisdictions the exact opposite is held, namely, that failure to look and listen is not always lack oi due care as matter of law.*^ A rule midway between these 36 49 La. Ann. 1302. 37 52 La. Ann. 417. 38 147 Ind. 408. 39 13 Pa. Super. Ct. 354. 40 84 Md. 515. 41 89 Md. 338. 42 Young V. Citizens' St. R. Co., 148 Ind. 54; Farrar v. New Or leans & C. R. Co., 52 La. Ann. 417; Canedo v. New Orleans & C. R Co., 52 La. Ann. 2149; McGee v. Consolidated St. Ry. Co., 102 Mich 107; Wolf V. City & Suburban Ry. Co. (Or.) 72 Pac. 329. 43Terien v. St. Paul City Ry. Co., 70 Minn. 532; Peterson v. Min neapolis St. Ry. Co. (Minn.) 95 N. W. 751; Mitchell v. Third Ave. R Co., 62 App. Div. (N. Y.) 371. (216) Ch. 6] PEDESTRIANS RUN OVER § 8S two is suggested in Smith v. City Ry. Co.** This case liolds that to cross an electric car track without looking or listening is presumptively lack of due care. In Terien v. St. Paul City Ey. Co.*^ it was held that, while there is not the same absolute duty to look and listen as there is in the case of a steam railroad, there is still some duty to look and listen, and that this may be greater in the case of electric ■cars than in the case of horse cars. Whether it is lack of due care, as a matter of law, not to look before crossing a street railway track, is another dis- puted point. Some cases afSrm this proposition,*® v.'hile others hold that failure to look is merely one circumstance to be considered in determining the question of the plaintiff's due care.*' Some jurisdictions prefer not to lay down any absolute rule as to the duty of a traveler who is crossing a street railway track to stop, look, and listen, but prefer to adopt the broad general rule that he must use his powers of ob- servation, and that his care should be that which a prudent man would exercise under the circumstances.** ii 29 Or. 539. 45 70 Minn. 532. *6 Bailey v. Marliet St. Cable Ry. Co., 110 Cal. 320. 47 North Chicago St. R. Co. v. Nelson, 79 111. App. 229; Brown v. Twenty-Third St. R. Co., 56 N. Y. Super. Ct. 356. 4sKernan v. Market St. Ry. Co., 137 Cal. 326; Louisville R. Co. V. Foe, 24 Ky. Law Rep. 1700, 72 S. W. 6; Baltimore Consol. Ry. Co. V. Rifcowitz. 89 Md. 338; Buayan v. Citizens' Ry. Co., 127 Mo. 12; Newark Passenger Ry. Co. v. Block, 55 N. J. Law, 605; Connelly V. Trenton Passenger Ry. Co., 56 N. J. Law, 700; Consolidated Traction Co. v. Chenowith, 58 N. J. Law, 416; Consolidated Traction Co. v. Glynn, 59 N. J. Law, 432; McGrath v. North Jersey St. Ry. Co., 66 N. J. Law, 312 (217) § 88 STREET RAILWAY ACCIDENT LAW. [Ch 6 While the fact that a person looks and listens before cross- ing a track will not excuse his want of ordinary care while crossing it,*^ on the other hand, if his attention is diverted by a runaway at a street railway crossing, he cannot be said not to be in the exercise of due care because he omits to look up and down the street for an approaching car.^° Where a traveler does look before crossing a street railway track, this is generally enough to carry the question of his due care to the jury,^^ even though, after seeing a car, he goes upon the track without looking again ;®^ although a traveler was held unable to recover when he gave one hasty glance, and then went forward without looking or listening again.^^ The question of due care is especially apt to be left to the jury where there are other circumstances, such as evidence that the car was traveling at high speed, or with- es McGee V. Consolidated St. Ry. Co., 102 Mich. 107; Rauscher v. Philadelphia Traction Co., 176 Pa. 349; Nugent v. Philadelphia Trac- tion Co., 181 Pa. 160. BO City Electric Ry. Co. v. Jones, 61 111. App. 183; Peterson v. Minneapolis St. Ry. Co. (Minn.) 95 N. W. 751. 51 Wells V. Brooklyn City R. Co., 58 Hun (N. Y.) 389; Millj V. Brooklyn City R. Co., 10 Misc. Rep. (N. Y.) 1; Killen v. Brook- lyn Heights R. Co., 31 Misc. Rep. (N. Y.) 290; Cowan v. Third Ave. Ry. Co., 9 N. Y. Supp. 610; Mauer v. Brooklyn Heights R. Co., 87 App. Div. (N. Y.) 119; McGovern v. Union Traction Co., 192 Pa. 344. 62 Consolidated Traction Co. v. Glynn, 59 N. J. Law, 432; Hickman V. Nassau Electric R. Co., 41 App. Dlv. (N. Y.) 629; Killen v. Brook- lyn Heights R. Co., 48 App. Div. (N. Y.) 557, 31 Misc. Rep. (N. Y.) 290; Curtin v. Metropolitan St. Ry. Co., 22 Misc. Rep. (N. Y.I 8.S: Copeland v. Metropolitan St. Ry. Co., 78 App. Div. (N. Y.) 418. 63 Metz V. St. Paul City Ry. Co. (Minn.) 92 N. W. 502. (218) Ch. 6] PEDESTRIANS RUN OVER. § Sg out giving warning of its approach,®* or that the traveler had his attention distracted by other vehicles,^® or that a traveler and a street car both stopped, each apparently ex- pecting the other to wait, and then started so near together that a collision was inevitable. ^^ Where a man with a push cart called to the driver of the car to stop, but did not stop himself, and a collision ensued, he was held not to be in tlie exercise of due care.®^ If there are any obstacles in the way, a traveler should wait before crossing.®^ In Doherty v. Detroit Citizens' St. Ey. Co.,^" a traveler who looked when he was twelve feet from the track, and did not see a car because of a covered wagon in the way, was held not to be in the exercise of due care, when he could have seen the car if he had looked again when within two or three feet of the track. Where a traveler saw a car, and chose to take the risk of being able to cross ahead of it, and was mistaken in his cal- 04 Consolidated Traction Co. v. Glynn, 59 N. J. Law, 432; Chicago City R. Co. V. Fennimore, 199 111. 1; Wells v. Brooklyn City R. Co., 58 Hun (N. Y.) 389; Gildea v. Metropolitan St. Ry. Co., 58 App. Div. (N. Y.) 528; Halliday v. Brooklyn Heights R. Co., 59 App. Div. (N. Y.) 57; Mitchell v. Third Ave. R. Co., 62 App. Div. (N. Y.) 371; Sesselmann v. Metropolitan St. Ry. Co., 65 App. Div. (N. Y.) 484; Faurot v. Brooklyn Heights R. Co., 14 Misc. Rep. (N. Y.) 398; Curtin V. Metropolitan St. Ry. Co., 22 Misc. Rep. (N. Y.) 83; Stillings v. Metropolitan St. Ry. Co., 84 App. Div. (N. Y.) 201; Henderson v. United Traction Co., 202 Pa. 527. 55 Mulligan v. Third Ave. R. Co., 87 App. Div. (N. Y.) 320; Con- nelly V. Trenton Passenger Ry. Co., 56 N. J. Law, 700. 66 Cleary v. Pittsburgh, A. & M. Traction Co., 179 Pa. 526. 67 Thai V. Metropolitan St. Ry. Co., 76 N. Y. Supp. 918. 68 Newark Passenger Ry. Co. v. Block, 55 N. J. Law, 605; Ames V. Waterloo & C. F. Rapid Transit Co. (Iowa) 95 N. W. 161. 69 118 Mich. 209. (219) § 88 STREET RAILWAY ACCIDENT LAW. [Ch.6 culation, he was held not to be in the exercise of due care f and where a traveler attempted to cross directly in front of a car, and tripped on the rail, he was held not to be in the exercise of due care.®^ Conduct of travelers which becomes dangerous only when those in charge of street cars neglect to observe the usual precautions should not be treated as contributory negligence defeating the right of recovery. Thus, in ^tsTewark Passen- ger Ry. Co. V. Block*^ it was held that, while one crossing a street must look out for passing vehicles, he need not look beyond the distance within which vehicles moving at lawful speed would endanger him. A traveler has a right to as- sume that a street car is presumably under control,^' and it is not lack of due care for him to fail to observe that it is moving at more than twice its usual speed,** or to assume that the driver will obey the customary signal of a person wishing to board a car.*' It is not lack of due care, as a matter of law, to cross a street car track which runs across the sidewalk into the car house, where no warning was given, and no lookout kept;"* nor is a traveler guilty of lack of due care where a car came down a grade at a street crossing at a speed greater than «t> Griffith V. Denver Consol. Tramway Co., 14 Colo. App. 504; North Chicago St. R. Co. v. Martin, 51 111. App. 247; Brown v. Elizabeth P. & C. J. R. Co., 68 N. J. Law, 618; Walsh v. Atlantic Ave. R. Co., 23 App. Div. (N. Y.) 19; Freeman v. Brooklyn Heights K. Co., 81 N. Y. Supp. 828. 61 Gilliland v. Middlesex & S. Traction Co., 67 N. J. Law, 542. «^ 55 N. J. Law, 605. 63 Dallas Rapid Transit Ry. Co. v. Elliott, 7 Tex. Civ. App. 216. 64 Frank v. Metropolitan St. Ry, Co., 58 App. Div. (N. Y.) 100. 65 Lang v. Houston, W. St. £ P. Ferry R. Co., 75 Hun (N. Y.) 151. 66 Wahlgren v. Market St. Ry. Co., 132 Cal. 656. <220) Ch. 6] PEDESTRIANS RUN OVER. § 89 that allowed by city ordinance, when the tracks were wet and muddy. ''^ Where a man was run over on a dark night by a ear driven at great speed, without lights and without warning, he was held not to be guilty of contributory neg- ligence;** and where a traveler crossed a track on a dark and rainy night, and was struck by a car approaching at high speed, it was held that it could not be said that he was guilty of lack of due care as a matter of law.** Where the plaintiff was transferring, and the custom was for the car to remain standing, it was held not to be lack of due care to walk near the track between the track and a bank of snow, even without looking or listening;^" and where a man sixty-seven years old attempted to cross in front of a car coming at an unusually rapid rate of speed down a grade, and crossed the track, but, in attempting to get over a snowbank, fell and was run over, it was held that due care was for the jury.'^^ If there is plenty of time to cross in front of a car, a passenger need not wait because of the possible danger of falling.''^ § 89. Same — Walking on or near track. Although a traveler has a right to walk on the tracks if he uses due care,^^ walking on a street car track is neces- sarily dangerous, and a traveler who does so and is injured 67 Walls V. Rochester Ry. Co., 92 Hun (N. Y.) 581. 68 Dallas Consol. Traction Ry. Co. v. Hurley, 10 Tex. Civ. App. 246. 69 Scliwarzbaum v. Third Ave. R. Co., 54 App. Div. (N. Y.) 164, 60 App. Div. 274; Prank v. Metropolitan St. Ry. Co., 58 App. Div. (N. Y.) 100. 70 Cameron v. Union Trunk Line, 10 Wash. 507. 71 Friedman v. Dry Dock, E. B. & B. R. Co., 11 N. Y. Supp. 429. 72 Baxter v. Second Ave. R. Co., 3 Rob. (N. Y.) 510. 73 Infra, § 93. (221) §89 STREET RAILWAY ACCIDENT LAW. [Oh. 6 is usually held unable to recover. Thus, in Johnson v. Canal & C. E. Co.,'^* and in Smith v. Crescent City E. Co./'' it was held that one who walks on a street car track of his own choice in the nighttime, and is run over, is not in the exercise of due care. Where a man walked along a narrow space between two street car tracks, without look- ing for a car, to pick up a shoe cast by one of his horses, and was struck while stooping to pick it up, he was held not to be in the exercise of due care.''* It is not lack of due care to walk along the street by the side of a street railway track unless a traveler places himself in such a position as | to be run over or injured by a car.'''' Where a traveler • looked for a car, and saw none, and there was evidence that f he saw for a distance of four hundred feet, and then walked for twenty-five feet beside the tracks without looking again, and was struck by a car, it was held that the plaintiff failed to show that he was free from contributory negligence;''* and where there was no path on a street, but a ditch at the side, and street car tracks were laid two feet from the ditch, the due care of a man walking on the track, or in the space between the track and the ditch, is for the jury.''^ Where a traveler walking near the track on a dark night listened, but was struck by a car running at high speed without warn- ing, due care was held to be for the jury.*" Where an in- 74 27 La. Ann. 53. 75 47 La. Ann. 833. "Dix V. Railway Co., 15 Pa. Super. Ct. 350. And see Judge v. Elkins (Mass.) 66 N. E. 708. 77 Brooks v. Lincoln St. Ry. Co., 22 Neb. 816. 78 Young V. Citizens' St. R. Co., 148 Ind. 54. 78 Buttelli v. Jersey City, H. & R. Electric Ry. Co., 59 N. J. Law, 302. so Carlson v. Lynn & B. R. Co., 172 Mass. 388. (222) (Jll, 5] PEDESTRIANS RUN OVER. § 98 toxicated man was run over while walking on the track on a dark, hazy night, he was held not to be in the exercise of due care;^^ and in Kramer v. Kew Orleans, C. & L. R. Co.*^ it was held that a drunken man lying near the side of a street car track with his legs across the track was not in the exercise of due care. Where a man was walking near the track, and there was no evidence as to what hap- pened between that time and the time when he was seen lying on the track directly in front of the car, there was held to be no evidence of due care.^^ The fact that a woman stood near the sidewalk over which street cars ran on a curve to enter into the station does not constitute lack of due care f* but where a man was run over, and there was evidence that he stood near the track when the car was ten or fifteen feet away, and the car would have passed him safely if he had remained stand- ing there, there was held to be no evidence of due care.^® A blind man who stopped in the middle of the track at the call of some one on the street was held unable to recover.*® A deaf man who does not look back frequently is not in the exercise of due care.*®^ Where a post of an elevated rail- road made it necessary for a woman to stand within two feet of the street car tracks to see whether cars were approaching a crossing, and she was run down, while in this position, by 81 Chicago City Ry. Co. v. Lewis, 5 111. App. 242; Weeks v. New Orleans & C. R. Co., 32 La. Ann. 615. 82 51 La. Ann. 1689. 83 Cox V. South Shore & B. St. Ry. Co., 182 Mass. 497. 84 O'Toole V. Central Park, N. R. & B. R. R. Co., 12 N. Y. Supp. 347. 85 McDermott v. Third Ave. R. Co., 44 Hun (N. Y.) 107. 86 Webb V. Chicago City Ry. Co., 83 111. App. 565. 86a Shanks v. Springfield Traction Co. (Mo. App.) 74 S. W. 386. (223) § 90 STREET RAILWAY ACCIDENT LAW. [Ch. (> a car coming very rapidly without warning, due care was held to be for the jury;^'^ and due care is for the jury where a woman stood, with her back to the ear, near the track.*''*- § 90. Same — Crossing where there are double tracks. A very common state of facts is where a passenger alights from a car where there are double tracks, and, crossing in the rear of the car, is struck by a car coming on the other track. Under these circumstances, the plaintiff was held unable to recover, where it appeared that he started to cross without looking,** and, of course, the case was stronger against the plaintiff where he was warned of his danger.** In Stowers v. Citizens' St. Ry. Co.,®" a passenger who alighted from a car at midnight, and, crossing in the rear of the car, was struck by a car coming on the other track, iive feet away, which he could readily have seen, was held not to be in the exercise of due care; and in Cincinnati St. Ky. Co. V. Snell,®^ where there was no evidence as to whether the plaintiff looked or not, it was held that it could not be said, as a matter of law, that he was in the exercise of due care. STG'Sell V. Metropolitan St. Ry. Co., 35 Misc. Rep. (N. Y.) 387. 87aLoder v. Metropolitan St. Ry. Co., 84 App. Div. (N. Y.) 591. 88 Tliorsell v. Chicago City Ry. Co., 82 111. App. 375 ; Indianapolis St. Ry. Co. V. Tenner (Ind. App.) 67 N. E. 1044; Baltimore Trac- tion Co. V. Helms, 84 Md. 515; Casper v. Metropolitan St. Ry. Co., 84 App. Div. (N. Y.) 639; Toledo Consol. St. Ry. Co. v. Lutter- beck, 11 Ohio Cir. Ct. R. 279; Landrigan v. Brooklyn Heights R. Co., 23 App. Div. (N. Y.) 43; Buzby v. Philadelphia Traction Co., 126 Pa. 559; Burgess v. Salt Lake City R. Co., 17 Utah, 406. 89 Gray v. Ft. Pitt Traction Co., 198 Pa. 184. »» 21 Ind. App. 434. 0154 Ohio St. 197. (224) Ch. 6] PEDESTRIANS RUN OVER. § 90 The question of due care under these circumstances is, however, often left to the jury,^^ especially where there is further evidence to be coiisidered, as, for instance, that the car was approaching without warning at a high rate of speed,^^ that the accident occurred in a thinly populated suburban district at 10 o'clock at night,''* or that the night was a very stormy one, and the plaintiff was a stranger, who had never seen a double track or an electric car."' Where a passenger jumped from a moving horse car onto a parallel track, and was run over, he was held not to be in the exercise of due care;"® and when a man stepped from a car onto a parallel track without looking, and was run over by a car which was approaching slowly, with the gong ring- ing, he was likewise held not to be entitled to recover."^ In Creamer v. West End St. Ey. Co."^ it was held that, while it may not be, as matter of law, negligent for one to leave a street car while in motion or to attempt to cross a street car track without looking to see whether a car is approaching, yet neither of these acts is evidence of due care ; and where 92 West Chicago St. R. Co. v. Nilson, 70 111. App. 171; Omaha St. Ry. Co. V. Loehneisen, 40 Neb. 37; Reed v. Metropolitan St. Ry. Co., 84 N. Y. Supp. 454; Beers v. Metropolitan St. Ry. Co., 84 N. Y. Snpp. 785. ssDobert v. Troy City Ry. Co., 91 Hun (N. Y.) 28; Sesselmann v. Metropolitan St. Ry. Co., 65 App. Div. (N. Y.) 484; Pelletreau v. Metropolitan St. Ry. Co., 74 App. Div. (N. Y.) 192; Stevens v. Union Ry. Co., 75 App. Div. (N. Y.) 602; Smith v. Union Trunk Line, 18 Wash. 351. 84 Wise V. Brooklyn Heights R. Co., 46 App. Div. (N. Y.) 246. 05 Beyer v. St. Paul City Ry. Co., 54 Minn. 127. 86 Maloney v. Brooklyn City R. Co., 18 N. Y. Wkly. Dig. 152. »' Baltimore Consol. Ry. Co. v. Armstrong, 92 Md. 554. »8 156 Mass. 320. (225) , Ry. Ace. — 15. § 90 STREE3T RAILWAY ACCIDENT LAW. [Ch. 6 the undisputed evidence showed that, in spite of warnings from those in his immediate vicinity, a passenger on a street railway car suddenly, without precaution, alighted there- from, and was struck by another car and killed, no action is maintainable against the company. Equally common is the very similar state of facts where one who is a traveler upon the highway to begin with, and who does not change his status from that of a passenger to a traveler by alighting, seeks to cross behind a car, and is run over by a car approaching on the other track. In a num- ber of cases the traveler was held, under these circum- stances, not to be in the exercise of due care;*® and the same ruling was made where a traveler stepped from behind a wagon, and was waiting to see whether a car was coming or not,^"" when he stepped back while crossing a double track,^"^ and where he was caught between two cars.-'"^ In Fonda v. St. Paul City Ey. Co.,!"* and in McClain V. Brooklyn City E. Co.,^"* the due care of the traveler under these circumstances was held to be for the jury, where it appeared that he looked, and the car approached the cross- ing at high speed. M McCarthy v. Detroit Citizens' St. Ry. Co., 120 Mlcli. 400; Green- gard V. St. Paul City Ry. Co., 72 Minn. 181; Scott v. Third Ave. R. Co., 16 N. Y. Supp. 350; Little v. Third Ave. R. Co., 83 App. Div. (N. Y.) 330; Blaney v. Electric Traction Co., 184 Pa. 524. 100 Bethel v. Cincinnati St. Ry. Co., 8 Ohio Circ. Dec. 310. 101 Jackson v. Union Ry. Co., 77 App. Div. (N. Y.) 161; Trauber v. Third Ave. R. Co., 80 App. Div. fN. Y.) 37. 102 Nugent v. Philadelphia Traction Co., 181 Pa. 160; Meyer v. Pittsburgh, A. & M. Traction Co., 189 Pa. 414. 103 71 Minn. 438. 304 116 N. Y. 459. (226) Ch. 6] PEDESTRIANS RUN OVER. § 91 A traveler is not in the exercise of due care when he goes on the track to board a car knowing that another car may move towards a switch behind the car which he intends to take, as he voluntarily assumes a position of danger.-*^"® One who attempted to cross a street car track between two cars coming from opposite directions was held guilty of lack of due care under all the circumstances of the case/"^ as was a man who was run over while walking after dark in a narrow space between double tracks in spite of a warn- jjjg^ioT ^^^ Qjjg ^jjQ stood in a narrow space between two tracks waiting to board a car.^"® Where a traveler stood between the tracks, and stepped back upon one of the tracks without seeing a car approaching in plain view ten feet away, this was held to be lack of due care as matter of law;^°® and where there were double tracks, and a man looked for a car, but saw none, went onto the second track, and saw a car coming, and then stepped back on the first track, and was run over, his due care was held to be for the jury.^^" § 91. Same — Laborer working on or near track. A laborer working on or near the tracks of a street rail- way company must necessarily have his attention somewhat distracted from keeping a constant outlook for approaching cars. Therefore, in many cases, the due care of a person so situated has been held to be for the jury. The circum- 105 Malpass v. Hestonville, M. & P. P. R. Co., 189 Pa. 599. 106 Hurdle v. Washington & G. R. Co., 8 App. D. C. 120. lOT Childs V. New Orleans City R. Co., 33 La. Ann. 154. 108 Halpin v. TWrd Ave. R. Co., 40 N. Y. Super. Ct. 175. 109 Bailey v. Market St. Cable Ry. Co., 110 Cal. 320. 110 McCormick v. Brooklyn City R. Co., 10 Misc. Rep. (N. Y.) 8. (227) § 91 STREET RAILWAY ACCIDENT LAW. [Ch. 6 stances tinder which such a ruling has been made are varied, as, for instance, where a laborer was working in a trench near a street railway track, and the horses attached to a car fell into the trench and injured him,^^^ where a laborer was working between the tracks,^ ^^ and where a laborer in a ditch was struck by a street car, and there was evidence that he looked for a car, and that there were street noises which deadened the sound of the car as it approached.^ ^-^ Similarly, where a contractor stood near a trench, and did not hear the call of the driver of an approaching car, his attention being occupied by a workman in the trench ;^^* where the foreman of a gang engaged in opening a drain between the street car tracks stooped down to remove a plank, and was struck by a car;^^^ and where a workman was run over while moving a heavy iron beam from a street car track, — due care in all of these cases was held to be for the jury.^i* Where a laborer was stooping over be- tween the tracks of a street railway company, and was struck by a car, due care was held to be for the jury;^" and the same ruling was made where three men were working with iiiFernandes v. Sacramento City Ry. Co., 52 Gal. 45; Burns v. Second Ave. R. Co., 21 App. Div. (N. Y.) 521. 112 Pittsburg Electric Ry. Co. v. Kelly, 57 Kan. 514; McCooey v. Forty-Second St. & G. St. Ferry R. Co., 79 Hun (N. Y.) 255; Lahey V. Central Park, etc., R. Co., 2 Misc. Rep. (N. Y.) 537. 113 Little V. Street Ry. Co., 78 Mich. 205. 114 Parrell v. Waterbury Horse R. Co., 60 Conn. 239. 115 Morrissey v. Westchester Electric Ry. Co., 18 App. Dlv. (N. Y.) 67. 116 Weingarten v. Metropolitan St. Ry. Co., 62 App. Div. (N. Y.) 364. 117 Third Ave. Ry. Co. v. Krausz, 112 Fed. 379. (228) Oh, 6] PEDESTRIANS RUN OVER. § 91 a hose near a street railway track, and a bolt on a car caught the hose and injured them."® Since, as has been said, the attention of a laborer is nec- essarily somewhat distracted, the question of a warning on the part of those in charge of an approaching car is an im- portant one. Where a laborer was pouring hot asphalt between the rails, and, as he got out of the way of one car, was struck by another, which gave no signal of its ap- jjroach;"® where a laborer was pouring tar into the cracks in a street, and, while stooping over after looking for a ear, was struck by one which approached without signaling;-'^" and where a workman was laying cement between the rails, and stopped, looked, and listened before stooping over his work, but was struck by a car running at a high speed with- out any warning, — due care in each case was held to be for the jury.^^-' Where a laborer was working in a ditch, and was compelled to stand with his back towards approaching cars, and, contrary to custom, no warning was given of the approach of the car;*^^ where a laborer working on the pavement near a street railway track was run over, and there was evidence that no warning was given until the car was very near him;-'^* and where a flagman in the per- formance of his duty was run over by a horse car, although 118 Laschinger v. St. Paul City Ry. Co., 84 Minn. 333. 119 Bengivenga v. Brooklyn Heights R. Co., 48 App. Dlv. (N. Y.) 515. 120 Lewis V. Binghamton R. Co., 35 App. Div. (N. Y.) 12; Hennes- sey V. Forty-Second St., M. & St. N. Ave. Ry. Co., 84 N. Y. Supp. 158. 121 O'Malley v. Soranton Traction Co., 191 Pa. 410. i22Daum V. North Jersey St. Ry. Co. (N. J. Law) 54 Atl. 221; Owens v. Peoples' Passenger Ry., 155 Pa. 334. 123 Hennessy v. Brooklyn Heights R. Co., 57 App. Div. (N. Y.) 27. (229) § 91 STREET RAILWAY ACCIDENT LAW. [Qh. 6 the driver could see him for several hundred feet,^^* — due care in all of these cases was likewise held to be for the jury. Where a workman looked and listened before stepping be- tween the rails, and was struck by a car coming without warning, the court ruled that there was no lack of due care on the part of the workman.^^® In spite of the fact that a laborer working on or near street railway tracks is thus often placed at a disadvantage, his conduct may nevertheless show such plain disregard of ordinary care that he is held unable to recover as a matter of law. Thus while the general rules applying to travelers on foot approaching a railway track do not apply to a street sweeper, whose duties require him to work between rails of the car tracks, where cars are constantly passing, ■'^^ a crossing sweeper, who kept no lookout for cars, and, when warned by a policeman, stepped back to avoid a car coming from one direction, and was struck by another coming in the other direction, was held not to be in the exercise of due care;^^^ and a deaf street sweeper who was struck by an electric car which approached him in plain sight for nearly two thousand feet was held not to be in the exercise of due care.^^* As usual, the plaintiff's failure to look is a circumstance counting strongly against him. Thus, where a regular re- i24D'0ro V. Atlantic Ave. R. Co., 13 N. Y. Supp. Y89. 125 Houston City St. Ry. Co. v. Woodlock (Tex. Civ. App.) 29 S. W. 817. 126 Smith v. Bailey, 14 App. Div. (N. Y.) 283; Dipaolo v. Third Ave. R. Co., 55 App. Div. (N. Y.) 566; O'Connor v. Union Ry. Co., 67 App. Div. (N. Y.) 99. 127 Daly V. Detroit Citizens' St. Ry. Co., 105 Mich. 193. 128 Lyons v. Bay Cities Consol. Ry. Co., 115 Mich. 114. (230) Oh. 6] PEDESTRIANS RUN OVER. § 91 pairer of crossings stood with liis back towards approaching cars, leaned over, and was stzaick, it was held that he was guilty of contributory negligence, even though the motor- man gave no signal.^^^ Similarly where a laborer stooped over to fix a plank near the track, and did not look for a car, he was held guilty of lack of due care.^^" Where a man unloading a wagon stood near the track, and did not notice an approaching car, although he had a clear view, he was held not to be in the exercise of due care;^^^ and a work- man who voluntarily placed himself in a position of danger in a narrow path between an obstruction and a car track was held unable to recover.^ ^^ Where a man was working in the rear of a coal wagon which stood near a track, leav- ing plenty of room for cars to pass, he was held not to be in the exercise of due care.-'^^ Where a man with a push cart called to a driver to stop, but did not stop himself, and a collision ensued, he was held not to be in the exercise of due care,^'''* but in a similar case, where the car came at high speed, due care was held to be for the jury.^^*"^ Where a workman in a trench saw a car, and had plenty of room to keep out of the way, but raised his head and was struck, he was held unable to recover ;^^^ and the same ruling was made where a workman instinctively put his 129 Eddy V. Cedar Rapids & M. C. Ry. Co., 98 Iowa, 626. 130 Hafner v. St. Paul City Ry. Co., 73 Minn. 252. 131, Davles v. People's Ry. Co., 159 Mo. 1. And see Gleason v. Worcester Consol. St. Ry. Co. (Mass.) 68 N. E. 223. i32Purguson v. Philadelphia Traction Co., 20 Phila. (Pa.) 249. i33McKelvey v. Twenty-Third St. Ry. Co., 5 Misc. Rep. (N. Y.) 424. 134 Thai V. Metropolitan St. Ry. Co., 76 N. Y. Supp. 918. 134a Greenbaum v. Interurban St. Ry. Co., 84 N. Y. Supp. 588. 135 Riddle V. Forty-Second St., M. & St. N. Ave. R. Co., 173 N. Y. 327. (231) ^ 92 STREET RAILWAY ACCIDENT LAW. [Qh. 6 hand on the track.-*** Where a workman looked for four hundred feet, but saw no car, and walked by the track for twenty-five feet without looking again, he was held guilty of lack of due care.-**'' § 92. Same — Miscellaneous. Where a traveler was injured while attempting to lead a frightened horse across a street railway track, his due care was held to be for the jury.^*^ Whether a mother was justified in thinking she could save her child from being run over without danger to herself was held, in West Chi- cago St. E. Co. V. Liderman,**^ to be a question for the jury, and, on appeal, it was further held that contributory negligence would not be imputed to her unless her action was clearly rash, but that there would be an exception to the rule when the rescuer was responsible for the dangerous position of the person to be rescued.^^" In Camden, G. & W. Ey. Co. V. Young^*^ it was held that, where a passenger was carried beyond his destination, and the conductor told him to walk back on the track, and he was run over on a trestle, due care was for the jury, but that, if he was warned not to go on the trestle, he was not in the exercise of due care. Where a woman was crossing a trestle, it was held that the only duty of the company was to use reasonable care after her peril was discovered, as she was a tres- 136 Nolan V. Metropolitan St. Ry. Co., 65 App. Div. (N. Y.) 184. 137 Young V. Citizens' St. R. Co., 148 Ind. 54. 138 Deuster v. Mil-waukee St. Ry. Co., 89 Wis. 191. 139 87 111. App. 638. 140 West Chicago St. R. Co. v. Liderman, 187 111. 463. 141 60 N. J. La-w, 193. (2B2) Ch. 6] PEDESTRIANS RUN OVER. § 93 passer.^^i^ A policeman cannot order a motorman to push a coal truck ahead under a law allowing him to "regulate the movements of teams and vehicles in the street," and cannot recover for injuries received in the process.^*^'' § 93. Right of way. A street railway company does not owe to travelers the high degree of care which it owes to passengers. It is bound, how- ever, to use reasonable care in operating its lines.*"'^ While the authorities are not in absolute harmony, the rule as gen- erally stated is that, between crossings, the street car has a superior or paramount, but not an exclusive, right of way,^*^ since the street car cannot turn out from the line of its tracks."'' i4ia Richmond Passenger & P. Co. v. Rack's Adm'r (Va.) 44 S. E. 709. "ibConnell3' v. Metropolitan St. Ry. Co., 84 N. Y. Supp. 305. 142 Third Ave. Ry. Co. v. Krausz, 112 Fed. 379; Shea v. Potrero & B. V. R. Co., 44 Cal. 414; Driscoll v. Market St. Cable Ry. Co., 97 Cal. 553; West Chicago St. R. Co. v. Colt, 50 111. App. 640; West Chicago St. R. Co. v. Binder, 51 111. App. 420; Isackson v. Duluth St. Ry. Co., 75 Minn. 27; Omaha St. Ry. Co. v. Loehneisen, 40 Neb. 37; Pendleton St. R. Co. v. Shires, 18 Ohio St. 255; San Antonio St. Ry. Co. V. Renken, 15 Tex. Civ. App. 229. 143 Hot Springs St. Ry. Co. v. Johnson, 64 Ark. 420; Shea v. Po- trero & B. V. R. Co., 44 Cal. 414; Bailey v. Market St. Cable Ry. Co., 110 Cal. 320; Buttelli v. Jersey City, H. & R. Electric Ry. Co., 59 N. J. Law, 302; Lahey v. Central Park, &o., R. Co., 2 Misc. Rep. (N. Y.) 537; McKelvey v. Twenty-Third St. Ry. Co., 5 Misc. Rep. (N. Y.) 424; Schulman v. Houston, W. St. & P. Ferry R. Co., 15 Misc. Rep. (N. Y.) 30; Warner v. Peoples' St. Ry. Co., 141 Pa. 615; Street R. Co. v. Howard, 102 Tenn. 474. 144 Hot Springs St. Ry. Co. v. Johnson, 64 Ark. 420; Shea v. Po- trero & B. V. R. Co., 44 Cal. 414; Bailey v. Market St. Cable Ry. Co., 110 Cal. 320; Fonda v. St. Paul City Ry. Co., 77 Minn. 336; But- (233) § 93 STREET RAILWAY ACCIDENT LAW. [Oh. 6 In Bailey v. Mprket St. Cable Ey. Go.,'^*^ the additional reason was given that street cars are run for the benefit and convenience of the public, and should not be unnecessarily delayed; and in Fandel v. Third Ave. R. Co./*" — the case of a cable car, — it was held that, as street cars are large and heavy vehicles, moved by machinery, they necessarily have, to a considerable extent, the right of way. It is therefore clear that an instruction that a street car has an absolute right of way under all the circumstances should not be given,^*''^ and cars cannot be run at any speed the public demands, so that others must look out for them.^*^ As the right of the street car is not exclusive, travelers have a right to use the streets of a city for travel, and may cross the street at any point they see fit, so long as they use reasonable care, and do not materially interfere with the progress of the cars.^*® One case has gone so far as to hold that the public can use any part of the street on terms of per- telli V. Jersey City, H. & R. Electric Ry. Co., 59 N. J. Law, 302; Fandel v. Third Ave. R. Co., 15 App. Div. (N. Y.) 426; McKelvey V. Twenty-Third St. Ry. Co., 5 Misc. Rep. (N. Y.) 424; Warner v. Peoples' St. Ry. Co.; 141 Pa. 615 "5 110 Cal. 320. "6 15 App. Div. (N. Y.) 426. 147 Chicago West Div. Ry. Co. v. Ingraham, 33 111. App. 351. 148 Newark Passenger Ry. Co. v. Block, 55 N. J. Law, 605; Con- solidated Traction Co. v. Glynn, 59 N. J. Law, 432. 149 Hot Springs St. Ry. Co. v. Johnson, 64 Ark. 420; Shea v. Potrero & B. V. R. Co., 44 Cal. 414; Bailey v. Market St. Cable Ry. Co., 110 Cal. 320; Baltimore Traction Co. v. Helms, 84 idd. 515; Liddy V. St. Louis R. Co., 40 Mo. 506; Henry v. Grand Ave. Ry. Co., 113 Mo. 525; Buttelli v. Jersey City, H. & R. Electric Ry. Co., 59 N. J. Law, 302; Warner v. People's St. R. Co., 141 Pa. 615; Street R. Co. V. Howard, 102 Tenn. 474. (234) Ch. b] PEDESTRIANS RUN OVER. § 94 feet equality with the street railway company, but this is con- trary to the weight of authority.^^'^ At street crossings, street cars must be kept under control, and they have no greater rights than travelers on foot cross- ing their tracks. ^^^ § 94. Negligence of company — General considerations. While a street railway company is boimd to use only ordi- ary care towards travelers,^ °^ it is almost universally held that, even if a traveler is guilty of lack of due care, the com- pany is nevertheless liable if they could have prevented the accident by the use of the ordinary care required of them,-'''* 150 San Antonio St. Ry. Co. v. Renken, 15 Tex. Civ. App. 229. isi Mitchell v. Third Ave. R. Co., 62 App. Div. (N. Y.) 371; Sessel- mann v. Metropolitan St. Ry. Co., 65 App. Div. (N. Y.) 484; Schul- man v. Houston, W. St. & P. Perry R. Co., 15 Misc. Rep. (N. Y.) 30; Street R. Co. v. Howard, 102 Tenn. 474. 152 Third Ave. Ry. Co. v. Krausz, 112 Fed. 379; Shea v. Potrero & B. V. R. Co., 44 Cal. 414; Driscoll v. Market St. Cable Ry. Co., 97 Cal. 553; West Chicago St. R. Co. v. Coit, 50 HI. App. 640; West Chicago St. R. Co. v. Binder, 51 111. App. 420; Isackson v. Duluth St. Ry. Co., 75 Minn. 27; Omaha St. Ry. Co. v. Loehneisen, 40 Neb. 37; Pendleton St. R. Co. v. Shires, 18 Ohio St. 255; San Antonio. St. Ry. Co. V. Renken, 15 Tex. Civ. App. 229; Norfolk Ry. & Light Co. V. Corletto (Va.) 41 S. B. 740. 153 Oliver v. Denver Tramway Co., 13 Colo. App. 543; Floyd v. Paducah Ry. & Light Co. (Ky.) 73 S. W. 1122; Atlanta Ry. & Power Co. V. Walker, 112 Ga. 725; Baltimore Traction Co. v. Wallace, 77 Md. 435; North Baltimore Passenger Ry. Co. v. Arnreich, 78 Md. 589; Baltimore Consol. Ry. Co. v. Rifcowitz, 89 Md. 338; Werner v. Citi- zens' Ry. Co., 81 Mo. 368; Bunyan v. Citizens' Ry. Co., 127 Mo. 12; Watson v. Mound City St. Ry. Co., 133 Mo. 246; Holwerson v. St. Louis & S. Ry. Co., 157 Mo. 216; Meyer v. Llndell Ry. Co., 6 Mo. App. 27; Davies v. People's R. Co., 67 Mo. App. 598; O'Keefe v. St. Louis & S. R. Co., 81 Mo. App. 386; Aldrich v. St. Louis Transit Co. (Mo. App.) 74 S. W. 141; Shanks v. Springfield Traction Co. (Mo. App.) (235) § 95 STREET RAILWAY ACCIDENT LAW. [Ch. 6 although, in Scott v. Third Ave. E. Co./^* it was held that an instruction to this effect was erroneous. In some cases, although the correctness of the rule is not questioned, it is held not applicable to the state of facts presented.-'^^ The fact that a passenger left the car in violation of a rule of the company will not excuse the company for injuries inflicted after the passenger had left the car, and was clearly a trav- eler on the highway. •'®* § 95. Negligence in operation — lookout, speed, warning, etc. The rules as to the care which should be exercised by those in control of street cars in keeping a lookout and in giving warning are expressed in different language in the various cases which have arisen. A driver or motorman must keep a vigilant watch for persons who may be approaching the tracks,-'^'' but a rule of the company which requires a higher degree of care than this is inoperative.^^* While approach- 74 S. W. 386; Parkinson v. Concord St. Ry. Co., 71 N. H. 28; McKeon v. Steinway R. Co., 20 App. Div. (N. Y.) 601; Healey v. Dry Dock, E. B. & B. R. Co., 46 N. Y. Super. Ct. 473; Richmond Pas- senger & Power Co. v. Steger (Va.) 43 S. E. 612. 164 59 Hun (N. Y.) 456. i55Trauber v. Third Ave. R. Co., 80 App. Div. (N. Y.) 37; Phelac V. Forty-Second St., M. & St. N. Ave. Ry. Co., 79 App. Div. (N. Y.) 548. 156 Piatt v. Forty-Second St. & G. St. Ferry R. Co., 2 Hun (N. Y.) 124. 157 Owensboro City R. Co. v. Hill, 21 Ky. Law Rep. 1638; Balti more Traction Co. v. Wallace, 77 Md. 435; Baltimore Traction Co v. Helms, 84 Md. 515; Bunyan v. Citizens' Ry. Co., 127 Mo. 12; Brooks v. Lincoln St. Ry. Co., 22 Neb. 816; Wells v. Brooklyn Citj R. Co., 58 Hun (N. Y.) 389; Harvey v. Nassau Electric R. Co., 3{ App. Div. (N. Y.) 307. 158 isackson v. Duluth St. Ry. Co., 75 Minn. 27. (236) Ch. 6] PEDESTRIANS RUN OVER. § 95 ing a street crossing he must have his car well under con- trol,-"'® and failure to ring a bell from a point twenty-five feet away from a crossing is negligence, both because it violates a reasonable ordinance, and is in itself careless.-'^'' Simi- larly, a failure to sound a gong near a street crossing has been held evidence of negligence.-'^'^-' A motorman should always be at his post, and it is negligence to require him to collect fares.^''^ It is not true, as a matter of law, that a motorman must observe the track in front of the car, and that portion of the street contiguous to the track on either side,-'®^ and those in charge of a street car do not have to slow up, ring a bell, or give some warning every time they meet another car.^^^ In general it is held that a driver or motorman has a right to assume that a person standing near the track or approach- ing the track will not undertake to cross suddenly in front of the car;^^^ therefore the driver need not check his car because a man is on the track sixty feet away,^^^ and a driver i59Wallen v. North Chicago St. R. Co., 82 111. App. 103; Owens- boro City R. Co. v. Hill, 21 Ky. Law Rep. 1638; Little v. Boston & M. R. R. (N. H.) 55 Atl. 190; Martin v. Third Ave. R. Co., 27 App. Div. (N. Y.) 52; Harvey v. Nassau Electric R. Co., 35 App. Div. (N. Y.) 307. 160 DriscoU v. Market St. Cable Ry. Co., 97 Cal. 553. 181 Sohwarzbaum v. Third Ave. R. Co., 54 App. Div. (N. Y.) 164. 102 City Electric Ry. Co. v. Jones, 61 111. App. 183. IS.'! Macon & I. S. St. Ry. Co. v. Holmes, 103 Ga. 655. 184 West Chicago St. R. Co. v. Coit, 50 111. App. 640. 165 Daly V. Detroit Citizens' St. Ry. Co., 105 Mich. 193 ; Bunyan v. Citizens' Ry. Co., 127 Mo. 12; Wolf v. City & Suburban Ry. Co. (Or.) 72 Pac. 329. i88Beem v. Tama & T. Electric Ry. & Light Co., 104 Iowa, 563; Farrar v. New Orleans & C. R. Co., 52 La. Ann. 417; McQuade v. Metro- politan St. Ry. Co., 17 Misc. Rep. (N. Y.) 154. (237) i^ 95 STREET RAILWAY ACCIDENT LAW. [Ch. 6 need not check or stop his car on seeing a pedestrian approach- ing the track.^®'' The fact that a woman runs towards a car waving a handkerchief is not enough to charge the mo- torman with knowledge that she will cross in front of the car.^^* It is held, however, that it is the duty of a driver to see that the track is clear,^^* and that the fact that he did not see a person cross the tracks in time to prevent an accident will not necessarily excuse the company.^'^" Even if a motor- man uses due care after he sees a person on the track, but does not use due care in discovering him, the company is nev- ertheless liable.-'''^ If a motorman sees that a person is in [ a position of peril, he must use reasonable care to prevent an accident,-'^^ and, if he sees that a man does not heed his sig- ■ nal, and runs him down, this is evidence of negligence.-'''^^ A motorman running a car over a trestle on private property is under no obligation to look out for travelers.^''* In many cases the conduct of a traveler is so reckless and so entirely unexpected that it is held that those in charge of the street cars are free from imputation of any negligence as a matter of law. Thus, there was held to be no negligence on the part of the company where a boy of twelve was run i67Driscoll V. Market St. Cable Ry. Co., 97 Cal. 553; Hickman v. Nassau Electric R. Co., 36 App. Dlv. (N. Y.) 376. 188 Meyer v. Lindell Ry. Co., 6 Mo. App. 27. i69Griffitlis V. Metropolitan St. Ry. Co., 63 App. Div. (N. Y.) 86. 170 Baltimore Traction Co. v. Wallace, 77 Md. 435. 171 Birmingham Ry. & Blec. Co. v. Jackson, 136 Ala. 279; Louis- ville City Ry. Co. v. Wood, 2 Ky. Law Rep. 387; San Antonio St. Ry. Co. V. Renken, 15 Tex. Civ. App. 229. 172 O'Keefe v. St. Louis & S. R. Co., 81 Mo. App. 386. 173 Buttelli v. Jersey City, H. & R. Electric Ry. Co., 59 N. J. Law, 302. 174 Camden, G. & W. Ry. Co. v. Young, 60 N. J. Law, 193. (238) Ch. 6] PEDESTRIANS RUN OVER. § 95 over ■while attempting to board a moving car, when the grip- man had not seen his signal ;-'^^ where a man was run over at night by a dummy engine ;^'^® where a woman started to cross a street without paying any attention to a car, and the driver called to her, and used every possible effort to stop the car j^'''' where a woman stood at a street crossing, and al- lowed herself to be struck by a car passing at ordinary speed 5^''^^ and where a traveler started to cross a double track, and suddenly stepped back in front of a car.^^^ A street railway company is not responsible for conduct of third persons, and, where the horses on a street car ran away through the conduct of two drunken men, without any fault on the part of the driver, there was held to be no negli- gence.-'** Where a traveler was running to take a car, and tripped and was struck by the car, there was held to be no negli- gence.-'*-' The fact that the accident occurred at night is an addi- tional circumstance to be considered. Where a passenger was killed by an electric car in the nighttime it was held that negligence was for the jury;-'*^ and where the driver of a horse car saw an object fifteen feet ahead of the car on a dark 175 West Chicago St. R. Co. v. Binder, 51 111. App. 420. 170 Dougherty v. Prankford & S. Passenger Ry. Co., 5 Wkly. Notes Cas. (Pa.) 14. 171 Ewing V. Atlantic Ave. R. Co., 11 N. Y. Supp. 626. i'8 Widmer v. West End St. Ry. Co., 158 Mass. 49. i79Aldrich v. St. Louis Transit Co. (Mo. App.) 74 S. W. 141; Jackson v. Union Ry. Co., 77 App. Div. (N. Y.) 161; Trauber v. Third Ave. R. Co., 80 App. Div. (N. Y.) 37. isounger v. Forty-Sscond St. & G. St. Ferry R. Co., 51 N. Y. 497. isi Winchell V. St. Paul City Ry. Co. (Minn.) 90 N. W. 1050. 182 Coll V. Easton Transit Co., 180 Pa. 618. (239) § 95 STREET RAILWAY ACCIDENT LAW. [Ch. & night, and could have stopped the car, but did not, and ran over a human being, negligence was held to be for the jury.-'** Evidence that a street car was driven at an unlawful rate of speed on a dark night, without lights, and without a care- ful watch being kept, warrants a finding of negligence;'** and negligence is also a jury question where a woman was struck by a car coming at full speed, without lights and with- out warning, in the nighttime.'*® Where a man lying on a street car track was run over about midnight, it was held that the driver could not have antici- pated that any one would be lying on the track, and that there was no evidence of negligence on his part.'*^ A similar rul- ing was made where a motorman, coming around a curve seventy-five feet away, ran over a drunken man lying near the side of the track, with his legs across the track ;'*''^ and where a car coming four miles an hour on a dark, hazy night ran over an intoxicated traveler midway between two streets, and it appeared that the driver, hearing some one shout, stopped the car as soon as possible.'** A motorman running in a thinly settled district saw an ob- ject on the track at night which he thought was a dog. He applied the brakes and sounded the gong, and, on approach- ing a little nearer, reversed. The object on the track was a 183 Werner v. Citizens' Ry. Co., 81 Mo. 368. 184 Dallas Consol. Traction Ry. Co. v. Hurley, 10 Tex. Civ. App. 246. issGildea v. Metropolitan St. Ry. Co., 58 App. Div. (N. Y.) 528. 186 Murray v. Forty-Second St., M. & St. N. Ave. R. Co., 9 App. Div. (N. Y.) 610. 187 Kramer v. New Orleans, C. & L. R. Co., 51 La. Ann. 1689. 188 Chicago City Ry. Co. v. Lewis, 5 111. App. 242. (240) Ch. 6] PEDESTRIANS RUN OVER. § 95 man, and the car ran over him and killed him. It was held that there was no negligence.'^® Negligence has been held to be for the jury where there was evidence of high speed at a crossing;'®" where a car was run through the fog at the rate of eighteen miles an hour;'®' where a car was coming very swiftly down a declivity;'®^ where a car was running fifteen miles an hour ;'®^ where the speed of the car was constantly increased up to within a short distance of the point where the accident occurred, and the motorman was talking to some one inside the car ;'*•* where a car suddenly increased its speed as it approached a street crossing;'®^ where a car rounded a curve at the rate of five or six miles an hour, when there was an ordinance forbid- ding any greater speed than three miles an hour;'®^ where a man over seventy years of age saw a car about sixty feet away, and was struck before he could cross the track, which was twelve feet distant ;'®'' where a grip car was run six miles an hour in a crowded city street;'®* and where a car was driven by a boy fifteen at a speed greater than that allowed i89Stelk V. McNulta, 99 Fed. 138. loowelty V. St. Charles St. R. Co., 109 La. 733; Hoyt v. Met- ropolitan St. R. Co., 73 App. Div. (N. Y.) 249. 191 Denton v. Brooklyn Heights R. Co., 78 N. Y. Supp. 157. 192 Mulhair v. West Philadelphia Passenger Ry. Co., 5 Wkly. Notes Cas. (Pa.) 190; West Philadelphia Passenger Ry. Co. v. Mulhair, 6 Wkly. Notes Cas. (Pa.) 508. i93Faurot v. Brooklyn Heights R. Co., 14 Misc. Rep. (N. Y.) 39S. i94Killen v. Brooklyn Heights R. Co., 48 App. Div. (N. Y.) 557. 195 West Chicago St. R. Co. v. McCallum, 169 111. 240. 106 Brown v. Twenty-Third St. R. Co., 56 N. Y. Super. Ct. 356. 197 Mills V. Brooklyn City R. Co., 10 Misc. Rep. (N. Y.) 1. 198 Chicago City Ry. Co. v. Roach, 76 111. App. 496. (24;i) Ry. Ace— 16. §95 STREET RAILWAY ACCIDENT LAW. [Ch. 6 by ordinance.^"'' Any speed beyond that allowed by ordi- nance tends to show negligence.^"" Evidence that no warning was given at a street crossing has been held sufficient to take the question of negligence to the jury;^''^ but it is not the duty of a street railway company to ring a gong between crossings.^"^ Failure to have a car under control has been held to justify a verdict for the plain- tiff-^os The general rule is that, where a street railway company operates a double line of tracks, they must use such care at crossings in regulating the speed of their cars and giving warning of their approach as will reasonably protect travel- ers from injury.^"* Thus there is evidence of negligence for the jury where it did not appear that the speed of a car was checked, or that it gave any signal of its approach,^"^ and where there was evidence that a car came at a high rate ■of speed without warning.-"® Where a woman who was .crossing a double track stepped back immediately in front of a car, there was held to be no evidence of negligence. ^"^ 199 Wall V. Helena St. Ry. Co., 12 Mont. 44. 200 Liddy v. St. Louis R. Co., 40 Mo. 506. 201 Chicago City R. Co. v. Loomis, 201 111. 118. 202Kuhnen v. Union Ry. Co., 10 App. Div. (N. Y.) 195. 203Horgan v. Jones, 131 Cal. 521. 201 Capital Traction Co. v. Lusby, 12 App. D. C. 295; Evansville .St. R. Co. V. Gentry, 147 Ind. 408; Pelletreau v. Metropolitan St. Ey. Co., 74 App. Div. (N. Y.) 192; Stevens v. Union Ry. Co., 75 App. Div. (N. Y.) 602; Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197; Bethel v. Cincinnati St. Ry. Co., 8 Ohio Circ. Dec. 310. 205Dobert v. Troy City Ry. Co., 91 Hun (N. Y.) 28. 206McClaln v. Brooklyn City R. Co., 116 N. Y. 459; Sesselmann v. Metropolitan St. Ry. Co., 65 App. Div. (N. Y.) 484. 207 Mulligan v. Third Ave. R. Co., 61 App. Div. (N. Y.) 214. (243) Ch. b] PEDESTRIANS RUN OVER. § 95 In Lundy v. Second Ave. E. Co.,^"* wliere a driver, after alighting, attempted to cross in the rear o£ a ear, and was struck by the car suddenly moving backwards, negligence was held to be for the jury; and in Cameron v. Union Trunk Line,^"^ where a car to which passengers were being trans- fered suddenly backed while the conductor was on the for- ward end, and ran over a woman who was being transferred, and it appeared that the custom was for the car to remain stationary, it was held proper to instruct the jury that the company should have had an employe at the rear end of the car. Where a driver was caught between two cars which passed only eleven inches apart, both defendants were held negligent.^-"' Where a traveler was crushed between two cars on a curve at a street crossing, the company was held negiigent.^-"'^ Where there is evidence of great speed, combined with evidence that no warning was given, there is still more rea- son for submitting the question of negligence to the jury. This general ruling, under the varying circumstances of each particular set of facts, has been made in a number of cases.^-"^^ 208 1 Misc. Rep. (N. Y.) 100. 209 10 Wash. 507. 210 West Chicago St. Ry. Co. v. Annis, 62 111. App. 180. 210a Schwartz v. New Orleans & C. R. Co. (La.) 34 So. 667. 2iiWahlgreii v. Market St. Ry. Co., 132 Cal. 656; Chicago City R. Co. V. Fennimore, 199 111. 1; Louisville Ry. Co. v. Will's Adm'x (Ky.) 66 S. W. 628; Conway v. New Orleans, C. & L. R. Co., 51 La. Ann. 146; Peterson v. Minneapolis St. Ry. Co. (Minn.) 95 N. W. 751; Pandel v. Third Ave. R. Co., 15 App. Div. (N. Y.) 426; Halliday v. Brooklyn Heights R. Co., 59 App. Div. (N. Y.) 57; Copeland v. Metropolitan St. Ry. Co., 67 App. Div. (N. Y.) 483; G'Sell v. Metropolitan St. Ry. Co., 35 Misc. Rep. (N. Y.) 387; Cosgrove v. Metropolitan St. Ry. Co., 74 App. Div. (N. Y.) 166; Henderson v. United Traction Co., 202 Pa. 527. (243) § 95 STREET RAILWAY ACCIDEnSTT LAW, [Ch. 6 It is not negligence, as a matter of law, not to have a head- liglit on a car,^^^ and the mere fact that a man walking in a city street is run over raises no presumption of negli- gence.^-'* In certain miscellaneous cases, negligence has been held to be for the jury, as where a driver was injured while at- tempting to lead a frightened horse across a street railway track,^^* where a man about to board a car was struck by another passing car,^^^ and where a passenger was carried beyond his destination, and the conductor told him to walk back on the track, and he was run over on a trestle.^^* Where a passenger was boarding a car, and was thrown off by its sudden start, and was run over by another car, there was held to be no negligence on the part of the driver of the second car;^^'^ and where a passenger who was drunk or sick was helped from a car at a terminus, and twenty min- utes later was run over by another car, there was held to be no causal connection, and therefore no cause for action.^'* Where a traveler saw the car, it is error to charge that the failure of the gripman to warn crossing pedestrians of the car's approach would make the company liable.^^® Where a woman was struck by a runaway team of horses, and no excuse was offered, it was held that a verdict for the plain- tiff would not be disturbed.^^" 212 Omaha St. Ry. Co. v. Clair, 39 Neb. 454. 213 Chicago City Ry. Co. v. Lewis, 5 111. App. 242. 2" Deuster v. Milwaukee St. Ry. Co., 89 Wis. 191. 216 West Chicago St. R. Co. v. Shiplett, 85 111. App. 683. 2i'i Camden, G. & W. Ry. Co. v. Young, 60 N. J. Law, 193. 217 Black V. Brooklyn City R. Co., 108 N. Y. 640. 218 Bageard v. Consolidated Traction Co., 64 N. J. Law, 316. 2111 Schulman v. Houston, W. St. & P. Ferry R. Co., 15 Misc. Rep (N. Y.) 30. 220 North Chicago St. R. Co. v. Louis, 35 111. App. 477. (244) Ch. 6] PEDESTRIANS RUN OVER. § 96 § 96. Same — Laborer working on or near track. In almost every case where a laborer has been injured while working on or near a street railway track, no definite ruling has been made on the question of negligence, owing to the almost necessarily complicated state of facts, but neg- ligence is left to the jury, as where the horse of a car fell into a trench and injured a workman ;-^^ where a horse car ran over a laborer working between the tracks f^"^ and where a laborer working near the track,^-^ and one working in a ditch under the track,^-"* was struck by a car approaching without warning. Where a laborer pouring tar into cracks in the street looked for a car, and then stooped down, and was struck by a car which approached without signaling, it was held that negligence was for the jury, and that the cus- tom of the laborer not to get out of the way until the car was very close was no excuse for the motorman's not giving a signal.^^'' Where a flagman, in the performance of his duty, was run over by a horse car, although the driver could see him for several hundred feet, negligence was held to be for the jury.^^® Where the conductor of a car thought that there was room to pass a pipe, and the foreman in charge of the work signaled to the driver to come on, and the driver pro- 221 Burns V. Second Ave. R. Co., 21 App. Div. (N. Y.) 521. 222 Pittsburg Electric Ry. Co. v. Kelly, 57 Kan. 514; McCooey v. Forty-Second St. & G. St. Ferry R. Co., 79 Hun (N. Y.) 255; La- liey V. Central Park, &c., R. Co., 2 Misc. Rep. (N. Y.) 537; Mor- rissey v. "Westchester Electric Ry. Co., 18 App. Div. (N. Y.) 67; O'Connor v. Union Ry. Co., 67 App. Div. (N. Y.) 99. 223 Hennessy v. Brooklyn Heights R. Co., 57 App. Div. (N. Y.) 27. 224 Owens V. Peoples' Passenger Ry., 155 Pa. 334. 225 Lewis V. Binghamton R. Co., 35 App. Div. (N. Y.) 12. 226D'Oro V. Atlantic Ave. R. Co., 13 N. Y. Supp. 789. (245) §97 STREET RAILWAY ACCIDENT LAW. [Ch. 6 ceeded at a walk, struck the pipe, and injured a workman, there was held to be no evidence of negligence.^^'^ Where a motorman sees that a workman on the track is not aware of the approach of a car, he must use every precaution to avoid an accident, and a mere sounding of the gong is not enough to relieve the company from liability. ^^* Where a workman relied on the direction of his foreman, and was injured, there was held to be no negligence on the part of the company.^^® Where a man in search of work slipped on the track of an elevated railroad, it was held that he was a licensee, and was owed the duty of reasonable care.^^" Where the rules of an elevated railroad required its trains to slow up on seeing a green flag, evidence of an employe that the signal was not heeded as a rule was held not to show such a general violation of the rule as to charge the com- pany with constructive notice thereof.^*-' Where a company assumed the duty of giving warning, and then omitted it, neg- ligence is for the jury.^^^ § 97. Same — Miscellaneous, It has been held that a city cannot make a street railway company liable to a citizen by means of an ordinance, with- out proof of an acceptance of the ordinance by the com- pany ;^^^ but see the late cases of Gebhardt v. St. Louis Trans- 227 Schmidt v. Steinway & H. P. Ry. Co., 132 N. Y. 566. 228 Houston City St. Ry. Co. v. Woodlook (Tex. Civ. App.) 29 S. W. 817. 229pioettl V. Third Ave. R. Co., 10 App. Div. (N. Y.) 308. 230 Wells V. Brooklyn Heights R. Co., 34 Misc. Rep. (N. Y.) 44. 231 Clark V. Manhattan Ry. Co., 77 App. Div. (N. Y.) 284. 232 Daum V. North Jersey St. Ry. Co. (N. J. Law) 54 Atl. 221. 233 Murphy v. Lindell Ry. Co., 153 Mo. 252; Holwerson v. St. Louis & S. Ry. Co., 157 Mo. 216. (246) Ch. 6] PEDESTRIANS RUN OVER. § 97 it Co.,234 and MeLain v. St. Louis & S. Ry. Co.^sb In John- son's Adm'r v. Louisville City Ey. Co.^^e j^ ^^g j^gj^ ^.j^^^ a street railway was liable for an injury in a statute impos- ing liability on "the proprietors of any railroad." Where a traveler was kicked by a street car horse, it wa& held that the mischievous propensity of the horse, and the defendant's knowledge of it, must be proved.^^'^ Where a traveler was injured by a blast, due care and negligence were left to the jury.^^* Where an electric car broke through a safety gate, and injured a brakeman on a steam railroad,, the case was held to be for the jury.^^* Where a street railway company owned a park and used it for picnic purposes, a boy who came to the park on a school picnic party, and was drowned in a pond, was held unable to recover;^*" and where a street railway company owned a pleasure resort, and allowed a man to operate a roller coaster there, it was held that the company did not thereby become liable for his carelessness.^*^ Where a street railway com- pany advertised a balloon ascension at its park, it was held liable for the negligence of an independent contractor to a boy, no matter whether the boy came by car or not, since the advertisment constituted an invitation to the public.^*^ 231 (Mo. App.) 71 S. W. 448. 235 (Mo. App.) 73 S. W. 909. 236 10 Busli (Ky.) 231. 237 West Chicago St. R. Co. v. Walsh, 78 111. App. 59*,. 238 Mills V. Wilmington City Ry. Co., 1 Marvel (Del.) 269. 239 Todd v. Second Ave. Traction Co., 192 Pa. 587. 240 Le Grand v. Wilkes-Barre & W. V. Traction Co., 10 Pa. Super. Ct. 12. 241 Knottnerus v. North Park St. Ry. Co., 93 Mich. 348. 242 Richmond & M. Ry. Co. v. Moore's Adm'r, 94 Va. 493. (247) § 97 STREET RAILWAY ACCIDENT LAW. [Ch. 6 In Thompson v. Lowell, L. & H. St. Ky. Co.^** it was held that, if a street railway corporation maintains a pleasure re- sort under St. 1895, c. 316, on the line of its railway, contain- ing a stage for exhibitions, and enters into a contract with a manager, under which the latter furnishes and manages, among other entertainments there, an exhibition of mark- manship by a man born without hands, a butt being proWded to receive the bullets, and the corporation pays for advertis- ing these exhibitions, and carries posters on its cars, all the appliances being furnished by the manager or the performer, and nobody in the corporation's employ exercising any su- perintendence or control over the performance, a spectator who comes to the exhibition on the corporation's car, and who, immediately after a shot had been fired, is struck in the eye by something which probably was a small fragment of a bullet or other metallic substance that flew from the impact when the bullet hit the butt, is entitled, in an action against the corporation for his injury, to have the case submitted to the jury, and cannot be held to have assumed the risk of the accident. II. Children. There is a conflict of authority as to the capacity of a child for using due care. Some jurisdictions hold that the due care of a child is always a question of fact for the jury ; others that, up to a certain age, a child is incapable of using due care. Chil- dren have been held to be sui juris from the age of sixteen to the age of four years and ten months; non sui juris from the age of sixteen months to the age of nearly seven; and the question has been held for the jury from the age of five years and foui months to the age of ten. 243 170 Mass. 577. (248) Ch. 6] PEDESTRIANS RUN OVER. § 93 It is almost universally held that the standard of care for a child who is sui juris is that degree of care which might rea- sonably be expected from a child of his age and capacity. There is a conflict of authority as to whether the lack of due care of a parent or person in charge of a child who is not sui juris may be imputed to the child. In general, it is held that allowing a child to play in the street alone, or leaving a child alone or in the company of other children in or near the house, does not show lack of due care oil the part of parents as a matter of law, although lack of due care in some cases is so obvious as to bar a recovery. While a street car has a superior right of way except at street crossings, those in charge of the car must use more care towards children than towards adults ; and a child may recover, although he is guilty of lack of due care, if those in charge of the car could have prevented the accident by the exercise of due care. All the cireumstaaces surrounding each particular case must be taken into consideration in determining the questions of due care and negligence. The lookout, both of the child and of the man in charge of the car, the speed of the car, and its distance from the child, whether or not a v/arning was given, the ob- struction of the view or of the track, are all important consid- erations. § 98. Capacity of child. There are two views as to the doctrine of eontribiitory neg- ligence in tlie case of young children, — one that children raiist use the degree of care usnally exercised by children of the same age and capacity, and that the due care of a child, how- ever yonng, is always a question of fact for the jury; the other that, np to a certain age, not precisely defined, a child is incapable of eontribiitory negligence, and that the court may so declare as a matter of law.^^* Even where the sec- 244 Chicago City Ry. Co. v. "Wilcox, 138 111. 370. (2-10) § 98 STREET RAILWAY ACCIDENT LAW. [(Jh. h ond of these views is adopted, the law has realized the im- possibility of fixing the exact age at which a child becomes sui juris/*^ but the following rulings, although absolutely irreconcilable in many cases, show pretty clearly the ten- dency of the courts in passing on these questions. Children in the following cases have been held to be sui juris: A girl of sixteen,^*^ a boy of fourteen years and ten months,^*'^ a girl of ten,^*^ a boy of nine years and nine months,^*® a girl of nine,^^" a boy of eight years and nine montlis,^^^ a boy of eight,^^^ a boy of seven,^^^ a boy of six and a half,^^^^ a boy of six,^^* and a boy of four years and ten months. ^^^ In the following cases a child has been held non sui juris: A girl of sixteen months,^^' a boy of sixteen months,^*^ a child of twenty-one months,^^* a child under two,^®^ a girl 245 Mangam v. Brooklyn R. Co., 38 N. Y. 455. 246 Street Ry. Co. v. Eadie, 43 Ohio St. 91. 247 ziotovsky V. Twenty-Third St. Ry. Co., 8 Misc. Rep. (N. Y.> 463. 24S Sheets v. Connolly St. Ry., &c., Co., 54 N. J. Law, 518. 249 George v. Los Angeles Ry. Co., 126 Cal. 357. 250 Pitzhenry v. ConsoliiJatecl Traction Co., 64 N. J. Law, 674. 251 Ryan V. La Crosse City Ry. Co., 108 Wis. 122. 2t'2 Henderson v. Detroit Citizens' St. Ry. Co., 116 Mich. 368. J53 Springfield Consol. Ry. Co. v. Welsch, 56 111. App. 196. 253a McDermott v. Boston El. Ry. Co. (Mass.) 68 N. B. 34. 254 Allen V. Ames College Ry. Co., 106 Iowa, 602. 233 Mason v. Minneapolis St. Ry. Co., 54 Minn. 216. 256 Passamaneck's Adm'r v. Louisville Ry. Co., 98 Ky. 195; Pis- selmayer v. Third Ave. R. Co., ? N. Y. State Rep. 75. 257 Chicago West Div. Ry. Co. v. Ryan, 131 111. 474. 268 Budd v. Meriden Electric R. Co., 69 Conn. 272. 259Farris v. Cass Ave. & P. G. Ry. Co., 80 Mo. 325. C;h. 6J PEDESTRIANS RUN OVER. § 93 of twoj^"" a boy of twOj^"! a child of two years and three months, 262 a girl of two and a half,2«3 a girl of two years and eight monthsj^"^ a boy of three,2«^ a girl of threej^o" a boy of three years and two months,^'''^ a girl of three years and four months,268 a girl of three and a halfj^^^ a boy of three and a half, in company with a brother of five and a half,^''^ a boy of three years and seven months,^''! a girl of three years and ten months,"2 a girl of four,^" a boy of fonr and a half,^^-* a girl of four years and nine montlis,^'''" a boy of five,^'''^ a boy of five and a half,^''"' a boy of nearly six,^^* a boy of six and a half,2^^ and a boy not quite seven.^*" 280 Newman v. Phillipsburg Horse Car R. Co., 52 N. J. Law, 44b. 261 Wright V. Maiden & M. R. Co., 4 Allen (Mass.) 283. -0- Bei-gen County Traction Co. v. Heitman's Adm'r, 61 N. J. Law, 682; Adams v. Metropolitan St. Ry. Co., 60 App. Div. (N. Y.) 188. 263Martineau v. Rochester Ry. Co., 81 Hun (N. Y.) 263. 204 O'Flaherty v. Union Ry. Co., 45 Mo. 70. 205 Barnes v. Shreveport City R. Co., 47 La. Ann. 1218; Bam- berger V. Citizens' St. Ry. Co., 95 Tenn. 18. 200 Mascheck v. St. Louis R. Co., 3 Mo. App. 600. 26T ihl V. Forty-Second St. & G. St. Ferry R. Co., 47 N. Y. 317. 208 North Kankakee St. Ry. Co. v. Blatchford, 81 111. App. 609. 269 Rice V. Crescent City R. Co., 51 La. Ann. 108. 2'o Government St. R. Co. v. Hanlon, 53 Ala. 70. 271 Mangam v. Brooklyn R. Co., 38 N. Y. 455. 272 Woeckner v. Erie Electric Motor Co., 176 Pa. 451. 273 Erie City Passenger Ry. Co. v. Schuster, 113 Pa. 412. 274Evers v. Philadelphia Traction Co., 176 Pa. 376. 2T5 Elwood Electric St. Ry. Co. v. Ross, 26 Ind. App. 258. 276 Citizens' St. R. Co. v. Stoddard, 10 Ind. App. 278. 277 Chilton V. Central Traction Co., 152 Pa. 425. 278 Schnur v. Citizens' Traction Co., 153 Pa. 29. 279 Hoon V. Beaver Valley Traction Co., 204 Pa. 369; Lombard & S. Sts. Passenger Ry. Co. v. Steinhart, 2 Penny. (Pa.) 358. 280 Smith v. Hestonvllle, M. & P. P. Ry. Co., 92 Pa. 450. (251) § 98 STREET RAILWAY ACCIDENT LAW. [Ch. 6 In the following cases the question as to whether or not the child was sui juris was held to be a question for the jury: A boy of five years and four months,^*^ a boy between five and six,^*^ a boy of six,^®^ a boy of seven,^** a girl of sev- en/*^ a boy of seven years and two months,^*® a girl of seven years and three months,^^'' a girl of eight,^^^ a boy between eight and nine,^*^ a girl of nine years and two months,^*" and a boy of ten.^^^ In Trumbo's Adm'r v. City St. Car Co.^^^ it was held that, between the ages of seven and four- teen, the presumption is that the child is non sui juris, but that evidence is admissible to show the contrary. When the vexed question as to whether or not a child is capable of exercising care is once settled, it is almost uni- versally held that the standard of care for a child who is sui 281 Paducah St. Ry. Co. v. Adklns' Adm'r, 14 Ky. Law Rep. 425. 282MuUer v. Brooklyn Heights R. Co., 18 App. Div. (N. Y.) 177. 283 Chicago City Ry. Co. v. Robinson, 127 111. 9; Mason v. At- lantic Ave. R. Co., 4 Misc. Rep. (N. Y.) 291; Lhowe v. Third Ave. E. Co., 14 Misc. Rep. (N. Y.) 612; LafEerty v. Third Ave. R. Co., 85 App. Div. (N. Y.) 592. 284Vogel V. North Jersey St. Ry. Co. (N. J. Law) 54 Atl. 563; Block V. Harlem Bridge, H. & F. Ry. Co., 9 N. Y. Supp. 164. 286 Kitchen V. Brooklyn Heights R. Co., 6 App. Div. (N. Y.) 99. 280 Penny v. Rochester Ry. Co., 7 App. Div. (N. Y.) 595. 28T Stone V. Dry Dock, E. B. & B. R. Co., 115 N. Y. 104. 288 Bennett v. Brooklyn Heights R. Co., 1 App. Div. (N. Y.) 205; jury. Where a boy went on the track to pick up his hat, and was struck by a car coming at high speed without warning, due care was held to be for the jury f^° and the same ruling was made where a boy chased other boys, who had his cap.*^ ' § 100. Lack of due care of child. As noted in the preceding section, whether or not a child looked before crossing a street car track is a very important consideration, and it is generally held that, where a child walks directly in front of a street car, either without looking or having a clear view and an opportunity of looking, there is no evidence of due care. This ruling has been made in the case of a boy of sixteen,^^* a boy of fourteen,^^* a boy of thir- teen,^*" a boy of eleven,^*^ a girl of ten,^*^ a boy of nine and a half,^*^ a girl of nine,^** a boy of eight years and nine months,^*^ a girl of eight years and four months,^** and a boy of eight.^*^ Where a girl of fourteen crossed in the rear 338 Davidson v. Metropolitan St. Ry. Co., 75 App. Div. (N. Y.) 426. 337 Sullivan v. Union Ry. Co., 81 App. Div. (N. Y.) 596. 338 Downs V. St. Paul City Ry. Co., 75 Minn. 41. 339 Wills V. Ashland L. P. & St. Ry. Co., 108 Wis. 255. 340 Kaiser v. New Orleans & C. R. Co., 107 La. 539; Funk v. Electric Traction Co., 175 Pa. 559. 341 Ledman v. Dry Dock, B. B. & B. R. Co., 28 App. Div. (N. Y.) 197. 342 Sheets v. Connolly St. Ry., etc., Co., 54 N. J. Law, 518. 343 Brady v. Consolidated Traction Co., 63 N. J. Law, 25, 64 N. J. Law, 373. 344 Fitzhenry v. Consolidated Traction Co., 64 N. J. Law, 674. 345 Ryan v. La Crosse City Ry. Co., 108 Wis. 122. 346 Weiss V. Metropolitan St. Ry. Co., 33 App. Div. (N. Y.) 221. 347Morey v. Gloucester St. Ry. Co., 171 Mass. 164; Henderson V. Detroit Citizens' St. Ry. Co., 116 Mich. 368. (260) Ch. 6] PEDESTRIANS RUN OVER. § IQO of a ear without looking, where there were double tracks, she was held not to be in the exercise of due eare.^** Where a girl of thirteen, with her head wrapped up in a large shawl, crossed leisurely in front of a street car, and it appeared that her view was unobstructed, she was held to be guilty of lack of due care ;^** and a boy of nine who ran from behind some wagons in front of a street car was likewise held not to be entitled to recover.^** Where a boy of fifteen stood between the rails of a street car track without looking for a car, when he might have reached a place of safety by stepping back two feet, he was held not to be in the exercise of due care;^^^ and a similar holding was made where a boy of eleven stood on a, car track with his back towards the direction from which the car ap- proached.^^^ Where a boy of eight saw a car coming, and tried to cross ahead of it, it was held that he voluntarily as- sumed the risk of the accident.^®* Where a boy of seven- teen jumped on and off of a car, and was run over, he was held guilty of lack of due care.^^* Where a boy of nine jumped from a wagon directly in front of a car, he was held not to be in the exercise of due care.^^® 348 Thompson v. Bufealo Ry. Co., 145 N. Y. 196. 349 Biederman v. Dry Dock, E. B. & B. R. Co., 54 App. Div. (N. Y.) 291. 350 Bello V. Metropolitan St. Ry. Co., 2 App. Div. (N. Y.) 313. 351 Zlotovsky v. Twenty-Third St. Ry. Co., 8 Misc. Rep. (N. Y.) 463. 352 Baltimore City Passenger Ry. Co. v. Cooney, 87 Md. 261. 353 Motel V. Sixth Ave. R. Co., 2 How. Pr. (N. S.; N. Y.) 30. 354 Taylor's Adm'r v. South Covington & C. St. R. Co., 14 Ky. Law Rep. 355. 355 Mullen V. Springfield St. Ry. Co., 164 Mass. 450. (261) § 101 STREET RAILWAY ACCIDENT LAW. [Ch. 6 § 101. Due care of parent or person in charge of child — Allow- ing child in street. Numerous rulings, not entirely in harmony, have been made on the question of the due care of parents in allowing children to be in the street alone. It has been held, on the one hand, that it is not lack of due care, as a matter of law, for the parents of a boy seven years and eight months old,^^* a boy seven years and two months old,^^^ a boy of seven,^^* a boy a little less than seven,*^® and a girl of five^^" to be in the street alone, but that their due care is a question for the jury. Where a mother sued for the death of her son, a boy of ten, and there was evidence that he had been taken out of school because of a defect in his speech, the due care of the mother in allowing him to be in the street unattended was held to be for the jury;^*^ and where a sick mother sent a bright boy of five on a necessary errand, and he was run over by a horse car, it was held that it could not be said, as a matter of law, that the mother was guilty of contributory negligence.^ ®^ It is not lack of due care, as matter of law, for a father to allow a bright boy of five and a half to be in the street alone.^®* In Ploof v. Burlington Traction Ck).,^^^ 856 Sullivan v. Union Ry. Co., 81 App. Div. (N. Y.) 596. 3'7 Penny v. Rochester Ry. Co., 7 App. Div. (N. Y.) 595. 858 Schierhold v. North Beach & M. R. Co., 40 Cal. 447; Riley V. Salt Lake Rapid Transit Co., 10 Utah, 428. 359 Holdridge v. Mendenhall, 108 Wis. 1. saoHuerzeler v. Central Cross Town R. Co., 139 N. Y. 490. sei Lynch v. Metropolitan St. Ry. Co., 112 Mo. 420. 302 Citizens' St. R. Co. v. Stoddard, 10 Ind. App. 278. 363Barksdull v. New Orleans & C. R. Co., 23 La. Ann. 180. 364 70 Vt. 509. (262) Ch. 6] PEDESTRIANS RUN OVER § 101 where a boy of ten was run over, it was held that, even if his parents were negligent in allowing him to be in the street, such negligence was the remote cause of the injury, and there^ fore could not be a bar to recovery. On the other hand, it has been held that, where the par- ents of a girl of three and a half allowed her to play alone on a dark night where there were street car tracks, the neg- ligence of the parents would prevent a recovery by the chilisfiB In Glassey v. liestonville, M. & F. P. Ey. Co.,3«« the case of a boy of four, in Wright v. Maiden & M. K. Co.,^"^ the case of a boy of two, and in Boland v. Mis- souri E. Co.,^°^ the case of a girl of two, it was held that the fact that the child was found alone in the street where there were street railway tracks was in itself prima facie evi- dence of negligence. Where a mother allowed a boy of seven to sell water to the drivers and conductors of a street car line, this was held to be lack of due care as a matter of law.^^" Where a child is allowed to go in the street in charge of another, older child, the due care of the parents or persons in charge of the child is almost invariably held to be for the jury. Such a ruling has been made in the case of a child one year and four months old, in charge of a brother of fif- teen,^'^" a girl of two years and one month, in charge of a girl of sixteen,^'^^ a girl two years and three months old, in 385 Juskowitz V. Dry Dock, B. B. & B. R. Co., 25 Misc. Rep. (N. Y.) 64. 386 57 Pa. 172. 367 4 Allen (Mass.) 283. 368 36 Mo. 484. 369 Smith V. Hestonville, M. & P. P. Ry. Co., 92 Pa. 450. 370 Chicago West Div. Ry. Co. v. Ryan, 131 111. 474. 371 Commonwealth v. Metropolitan R. Co., 107 Mass. 236. (263) § 101 STREET RAILWAY ACCIDENT LAW. [Ch. 6 charge of a brother of seven,*''^ a child of two and a half, in charge of a sister of five,^''^ a girl of two years and eight months, in charge of a sister of eight,^^* a girl of two years and ten months, in charge of an older sister,^''^^ a boy of two years and eleven months, in charge of an uncle of four- teen,^'^® a boy of three years and two months, in charge of a sister of nine and a half,^'^ a girl of three years and nine months, in charge of a brother of nine,^^^ a girl of three years and eleven months, in charge of a sister of ten,^^® a boy of foiir, in charge of a sister of eleven,^®" a girl of four, in charge of a sister of twelve, ^*^ a boy of four and a half, in charge of a brother of eight,^^- a girl of five, in charge of a brother of fifteen,^^^ and a girl of five, in charge of a sister of twen- ty-four.^** Where the mother of a boy of four stood at an open window twenty-five feet away, and the child's nurse was standing not far from the child, who was seated in a chair on the sidewalk, the due care of the mother was held to be for the jury.^*-"* Where a father stood on the sidewalk with a girl of 572 Adams v. Metropolitan St. Ry. Co., 60 App. Div. (N. Y.) 188. 373 Martineau v. Rochester Ry. Co., 81 Hun (N. Y.) 263. 374 O'Flaherty v. Union Ry. Co., 45 Mo. 70. 376 Woeckner v. Erie Electric Motor Co., 182 Pa. 182. 370 Harkins v. Pittsburg, A. & M. Traction Co., 173 Pa. 146. 377 ihl V. Forty-Second St. & G. St. Ferry R. Co., 47 N. Y. 317. 378 Hedin v. Suburban Ry. Co., 26 Or. 155. 379 West Chicago St. R. Co. v. Scanlan, 68 111. App. 626. 380 Collins V. South Boston R. Co., 142 Mass. 301. 381 Jones V. Brooklyn Heights R. Co., 10 Misc. Rep. (N. Y.) 543. 382 Evers v. Philadelphia Traction Co., 176 Pa. 376. 383 Ehrmann v. Nassau Electric R. Co., 23 App. Div. (N. Y.) 21. 384Weitzman v. Nassau Electric R. Co., 33 App. Div. (N. Y.) 585. 385 Kroesen v. New Castle Electric St. Ry. Co., 198 Pa. 30. (264) Ch. 6] PEDESTRIANS RUN OVER. 102 four, and she got onto the track and was run over, and there was evidence that a boy of five was with her, the due care of the father ^vas held to be for the jury f^*^ and the same ruling was made where a father, after alighting, was looking after his wife, and a girl of seven was run over by a car which approached at high speed without warning.^" Where the grandmother of a girl of eight left a horse car with the child, and went onto a parallel track without taking hold of the child, the grandmother was held to be guilty of lack of due care.^** Where a boy of five, in charge of a boy of eleven, was injured, the due care of the boy of eleven was held to be for the jury f^^ and where a boy of six and a half, in charge of a boy of twelve, was injured, the due care of the parents and of the boy of twelve was a question for the jury.^^'' § 102. Same — Leaving child alone in or near the house. The reports are filled with a painfully large number of cases where the small children of parents who are in moderate circumstances have escaped from the care of their parents or others in charge of them, and have got onto the street rail- way tracks and been run over. The question as to whether the moderate circumstances of the parents, and their conse- quent inability to exercise the very highest degree of watch- fulness over their children by the employment of a nurse or by other means, is a proper fact to be considered by the jury in passing upon the question of their due care, has arisen in 380 Levy v. Dry Dock, E. B. & B. R. Co., 12 N. Y. Supp. 485. 387 Kitcliell V. Brooklyn Heights R. Co., C App. Div. (N. Y.) 99. 388 Reed V. Minneapolis St. Ry. Co., 34 Minn. 557. 389Gumby v. Metropolitan St. Ry. Co., 65 App. Div. (N. Y.) 38. 3»oLevine v. Metropolitan St. Ry. Co., 78 App. Div. (N. Y.) 426. (265) 15 102 STREET RAILWAY ACCIDENT LAW. [Ch. 6 a number of cases. In Fox v. Oakland Consol. St. Ey.^^^ it was held that the fact that a man was too poor to keep serv- ants to look after his child was not a matter to be coiisidered by the jury; and in Cunningham v. Los Angeles Ry. Co.^"^ it was held that, although it is true, as an abstract proposi- tion, that the law does not require parents to keep an attend- ant with their young children, or to shut them up, it is error to give such instruction to the jury, since the question as to whether such precautions are necessary in any particular state of facts is for them to decide. It seems from the case of Gumming v. Brooklyn City E. Co.^^^ that evidence is inad- missible to show that a mother was unable to hire anybody to aid her in looking after her child, but, on the other hand, it has been squarely held in a number of cases that the finan- cial condition and station in life of parents may be consid- ered in determining the question of their due care in car- ing for their children.^^* The courts are very unwilling to declare parents negligent in these cases as a matter of law, and whether they are neg- ligent, in any given case, in allowing a child to play in or near the house or store, alone, or in charge of other children or some older person, is almost invariably held to be a ques- 391 118 Cal. 55. 392 115 Cal. 561. 393 104 N. Y. 669. 394 Cotter V. Lynn & B. R. Co., 180 Mass. 145; O'Plaherty v. Union Ry. Co., 45 Mo. 70; Rosenkranz v. Llndell Ry. Co., 108 Mo. 9; Czezewzka v. Benton-Bell efontaine Ry. Co., 121 Mo. 201; Levin v. Metropolitan St. Ry. Co., 140 Mo. 624; FuUerton v. Metropolitan St. Ry. Co., 63 App. Div. (N. Y.) 1; Hedin v. Suburban Ry. Co., 26 Or. 155; Pittsburg, A. & M. Ry. Co. v. Pearson, 72 Pa. 169; Ev- ers V. Philadelphia Traction Co., 176 Pa. 376. (266) Ch. 6] PEDESTRIANS RUN OVER. § 102 tion for the jury under all tlie circumstances of each particu- lar action. This ruling has been made where a child was left alone in the case of a child of fourteen months,^^^ a child of seventeen months,^^^ a child of eighteen months,^^^ a boy of nineteen months,^^^ a child under two,^^® a girl of two,*"*^ a child of two years and three months,*"^ a boy of two and a half,*"^ a girl of two and a half,*°^ a boy of two years and seven months,*°* a boy of two years and eight months,*"^ a boy of two years and ten months/"^ a boy of three years and eight months/"^ a boy of four/"* a boy of four and a half,*"^ a boy of five,*^'' a girl of five,*^^ and a boy of nearly six years old;^^^ and where a child was left in the care of 395 San Antonio St. Ry. Co. v. Cailloutte, 79 Tex. 341. 398Weissner v. St. Paul City Ry. Co., 47 Minn. 468. 307 Pittsburg, A. & M. Ry. Co. v. Pearson, 72 Pa. 169. 398Reinike v. Pliiladelphia Traction Co., 31 Wkly. Notes Gas. (Pa.) 471. 398Czezewzka v. Benton-Bellefontaine Ry. Co., 121 Mo. 201. 400 Weil V. Dry Dock, E. B. & B. R. Co., 119 N. Y. 147. *oi Henne v. Peoples' St. Ry. Co., 1 Pa. Super. Ct. 311. 402 Karahuta v. Schuylkill Traction Co., 6 Pa. Super. Ct. 319. 403Hyland v. Yonkers R. Co., 4 N. Y. Supp. 305; Houston City St. Ry. Co. v. Dillon, 3 Tex. Civ. App. 303. 404 Slensby v. Milwaukee St. Ry. Co., 95 Wis. 179. 405 Powers v. Quinoy & B. St. Ry. Co., 163 Mass. 5. 4oe Levin v. Metropolitan St. Ry. Co., 140 Mo. 624. 407 Hewitt V. Taunton St. Ry. Co., 167 Mass. 483. 408 Rosenkranz v. Lindell Ry. Co., 108 Mo. 9; Mangam v. Brook- lyn R. Co., 38 N. Y. 455; Barry v. Second Ave. R. Co., 16 N. Y. Supp. 518. 409 Pox V. Oakland Consol. St. Ry., 118 Cal. 55. 410 Fallon V. Central Park, N. & E. R. R. Co., 64 N. Y. 13; Dun- seath V. Pittsburg, A. & M. Traction Co., 161 Pa. 124. 411 Ames V. Broadway & S. A. R. Co., 56 N. Y. Super. Ct. 3. 412 Strutzel V. St. Paul City Ry. Co., 47 Minn. 543. (267) § 102 STREET RAILWAY ACCIDENT LAW. [Ch. 6 someone else, in the ease of a child of sixteen months, in charge of a sister of eleven,*^* a child of sixteen months, in charge of a sister twenty years old,*^* a child of two, in charge of its grandmother,*-*^ a child of two, in charge of a sister of fifteen,*^® a child of three, with other children,*^^ and a girl of four years and four months old, in charge of a brother of thirteen.*^ ^ The circumstances may be such, however, as to justify the court in holding that the parents have been guilty of lack of due care as a matter of law. Thus, where the mother of a boy twenty months old left her child in the kitchen, to ac- company some callers to the front door, and the child passed its mother at the door, went onto a street railway track, and was killed, it was held that the mother was guilty of con- tributory negligence, and that neither she nor her husband could recover for the loss of the child.*^* In Cotter v. Lynn & B. R. Co.,*^" where a girl of four was allowed to play, in a yard opening onto a busy city street, with a boy of iive, and the boy was sent on an errand, there was held to be no evidence of due care on the part of the parents. There are also cases where the court could rule, as matter of law, that there is no evidence of lack of due care, and that it is not proper to sub- mit this question to the jury. Thus, where some children *i3 Passamaneck's Adm'r v. Louisville Ry. Co., 98 Ky. 195. *" Pisselmayer v. Third Ave. R. Co., 2 N. Y. State Rep. 75. 415 Roller V. Sutter St. R. Co., 66 Cal. 230. 416 Jones V. United Traction Co., 201 Pa. 346. 417 Buente v. Pittsburg, A. & M. Traction Co., 2 Pa. Super. Ct. 185. 418 Dahl V. Milwaukee City Ry. Co., 62 Wis. 652. 419 Johnson v. Reading City Passenger Ry., 160 Pa. 647. 420 180 Mass. 145. <268) Ch. 6] PEDESTRIANS RUN OVER. § 103 unlatched the gate in a yard, and a child under two years of age escaped, there was held to be no evidence of contributory negligence, since it appeared that the father was a laboring man, and the mother could not afford to keep a servant.* ^^ In Becker v. Cincinnati St. Ey. Co.,*^^ where a mother al- lowed a girl of three and a boy of five to play in a yard, and the children escaped, and the younger one was run over by an electric car, whether the act of the mother was the proxi- mate cause of the injury was held to be for the jury. § 103. Negligence of company — Right of way. While it is clear that the right of a street railway to that part of the street on which its tracks are laid is not an exclu- sive one,*^* it is generally held that its rights are superior to those of the general public,*^* except at street crossings, where the rights of both are equal.*^^ It has been held that a street railway company is bound to know that men, women, and children have a right to use the traek,*^^ and that chil- dren have a right to use the city streets, not merely as a 421 Parris v. Cass Ave. & P. G. Ry. Co., 80 Mo. 325. *22 2 Ohio Dec. 137. 423Bvers v. Philadelphia Traotion Co., 176 Pa. 376; Memphis City Ry. Co. v. Logue, 13 Lea (Tenn.) 32; Galveston City R. Co v. Hewitt, 67 -Tex. 473; San Antonio St. Ry. Co. v. Mechler, 87 Tex. 628; Thompson v. Salt Lake Rapid Transit Co., 16 Utah, 281 424Fenton v. Second Ave. R. Co., 126 N. Y. 625; Thompson v Buffalo Ry. Co., 145 N. Y. 196; Baker v. Eighth Ave. R. Co., 62 Hun (N. Y.) 39; Evers v. Philadelphia Traction Co., 176 Pa. 376; Thompson v. Salt Lake Rapid Transit Co., 16 Utah, 281. 425 Consolidated Traction Co. v. Scott, 58 N. J. Law, 682; Cohen V. Metropolitan St. Ry. Co., 63 App. Div. (N. Y.) 165. 426 Winters v. Kansas City Cable Ry. Co., 99 Mo. 509. (269) §104 STREET RAILWAY ACCIDENT LAW. [Ch. 6 means of going to school, but to play upon.*^^ In Govern- ment St. R. Co. V. Hanlon*^^ the court went so far as to de- clare that the easement of a street railway company is en- joyed subordinate to the paramount right of citizens to the absolute and unqualified use of the street. § 104. Same — General considerations. While, as we have seen, the degree of care which a street railway company is bound to use towards travelers is only ordinary care under the circumstances,^^® it is universally held that more care must be used towards children than to- wards adults.*^" While greater care is required in running 427 Quincy Horse Ry. & Carrying Co. v. Gnuse, 38 111. App. 212. 428 53 Ala. 70. 429 Cunningham v. Los Angeles Ry. Co., 115 Cal. 561; West Chi- cago St. R. Co. V. Binder, 51 111. App. 420; Pfeiffier v. Chicago City Ry. Co., 96 111. App. 10; Gorman's Adm'r v. Louisville Ry. Co. (Ky.) 72 S. W. 760; Stanley v. Union Depot R. Co., 114 Mo. 606; Cumming v. Brooklyn City R. Co., 104 N. Y. 669; Memphis City Ry. Co. V. Logue, 13 Lea (Tenn.) 32; Dallas Rapid Transit Ry. Co. v. Dunlap, 7 Tex. Civ. App. 471. 430 Government St. R. Co. v. Hanlon, 53 Ala. 70; Schierhold v. North Beach & M. R. Co., 40 Cal. 447; West Chicago St. R. Co. V. Schwartz, 93 111. App. 387; Passamaneck's Adm'r v. Louisville Ry. Co., 98 Ky. 195; Gorman's Adm'r v. Louisville Ry. Co. (Ky.) 72 S. W. 760; Barnes v. Shreveport City R. Co., 47 La. Ann. 1218; Gannon v. New Orleans, C. & L. R. Co., 48 La. Ann. 1002; Boland V. Missouri R. Co., 36 Mo. 484; O'Plaherty v. Union Ry. Co., 45 Mo. 70; Elwood Electric St. Ry. Co. v. Ross, 26 Ind. App. 258; Murray v. Paterson Ry. Co., 61 N. J. Law, 301; Bergen County Traction Co. v. Heitman's Adm'r, 61 N. J. Law, 682; Pendrll v. Second Ave. R. Co., 34 N. Y. Super. Ct. 481; Hedin v. Suburban Ry. Co., 26 Or. 155; Galveston City R. Co. v. Hewitt, 67 Tex. 473; San Antonio St. Ry. Co. v. Mechler, 87 Tex. 628; San Antonio Traction Co. v. Court (Tex. Civ. App.) 71 S. W. 777; Sample v. Consolidated Light & Ry. Co., 50 W. Va. 472. (270) Ch. 6] PEDESTRIANS RUN OVER. § U)4 electric cars than in running horse cars/*^ the driver of a street car is not required to use more care than the drivers of other vehicles in the streets.*^^ It is well settled that, even if a child is guilty of lack of due care, he may nevertheless recover if those in charge of tlie car could have prevented the accident by the use of ordi- nary care f^^ and it is not enough that the man in charge of the car uses due care after he once sees the child. If, in the exercise of due care, he should have seen the child, and did not, the company is liable.*^* A fortiori, a child, though guilty of lack of due care, may recover if a motorman acts wantonly or recklessly.*^"*^ Conversely, if those in charge of the car do all that they can when they see or should liave seen the child's danger, the company must be held not liable.*"*^ In Goodman v. Metropolitan St. Ry. Co.**^ it was held error to charge that, even if the plaintiff was negligent, if the defendant could have avoided the accident by the use of ordinary care, it should be held liable. In some cases, while the general rule is admitted, it is held not applicable 431 Thompson v. Salt Lake Rapid Transit Co., 16 Utali, 281. 432Falotio V. Broadway & S. A. R. Co., 9 Daly (N. Y.) 243. 433 Baltimore City Passenger Ry. Co. v. McDonnell, 43 Md. 534; Baltimore City Passenger Ry. Co. v. Cooney, 87 Md. 261; Pearson V. Union Ry. Co., 14 Mo. App. 579; Hays v. Gainesville St. Ry. Co., 70 Tex. 602; Thompson v. Salt Lake Rapid Transit Co., 16 Utah, 281. (134 Welsh V. Jackson County Horse R. Co., 81 Mo. 466. 434a Aiken v. Holyoke St. Ry. Co. (Mass.) 68 N. E. 238. 435 West Chicago St. R. Co. v. Camp, 46 111. App. 503; Acker- man V. Union Traction Co., 205 Pa. 477. 436 63 App. Div. (N. Y.) 84. (271) 105 STREET RAILWAY ACCIDENT LAW. [Oh. 6 where there is no intervening cause between the plaintiff's lack of due care and the accident.*^'' Too great a degree of care cannot be required of the com- pany. Thus, the simple fact that an accident occurred raises no presumption of negligence, "'^^ and an injured person can- not rely upon the provisions of an ordinance wHich requires a higher degree of care than that prescribed by the common law.''^^ § 105. Same — Negligence in operation. Numerous rulings have been made as to the degree of care required from a driver, motorman, or gripman when chil- dren are standing near the track, or are approaching the track. It has been held that a gripman need not slacken the usual speed of his car because he sees children standing in the street near the track ;**" and a motorman who sees a boy of eleven standing near the track has a right to assume that he will not attempt to cross the track just ahead of the car.**^ While a motorman may reasonably expect that an adult on the track Avill get off of it, he cannot expect a child nineteen months old to do so.**^ As to the degree of care *37Gsatlos V. Metropolitan St. Ry. Co., 70 App. Div. (N. Y.) 606; Sciurba v. Metropolitan St. R. Co., 73 App. Div. (N. Y.) 170; Bortz V. Dry Dock, E. B. & B. R. Co., 78 App. Div. (N. Y.) 386; Del- kowsky V. Dry Dock, E. B. & B. R. Co., 79 N. Y. Supp. 1104. 438 Mascheck v. St. Louis R. Co., 3 Mo. App. 600. i39Fath V. Tower Grove & L. Ry. Co., 39 Mo. App. 447. «oRack V. Chicago City Ry. Co., 173 111. 289; Citizens' St. Ry. Co. V. Carey, 56 Ind. 396; Paducah St. Ry. Co. v. Adklns' Adm'r, 14 Ky. Law Rep. 425; Gannon v. New Orleans, C. & L. R. Co., 48 La. Ann. 1002. "1 O'Rourke v. New Orleans, C. & L. R. Co., 51 La. Ann. 755. 442 Galveston City R. Co. v. Hewitt, 67 Tex. 473. (272) Ch. 6] PEDESTRIANS RUN OVER. § IQS required when children are seen approaching the tracks, the decisions do not seem to be in entire harmony. A city ordi- nance has been held valid which requires conductors and drivers to keep a vigilant watch for all vehicles and persons on foot, especially children, and to stop the car on the first appearance of danger,*^^ and violation of such an ordinance has been held negligence ;*** and it has been held that drivers of street cars in a large city must not only see that the track is clear, but must exercise a constant watchfulness over per- sons who may be approaching the track.**^ It has further been held that the driver of a street car must be on the watch for boys coasting down a hill crossing a street car track, al- though this is unlawful;**® and that, where the driver of a horse car saw two women and seven small children endeavor- ing to cross a street at a crossing, it was his duty to have his horses and car well under control.**'^ Where a motorman saw a child six and a half years old apfvoaching the track, it was held to be his duty to slacken speed and keep his car under control ;*** and the same ruling was made in the case of a girl of four.**^ On the other hand, it has been held that the street is not a playground for children, that a gripman is not bound to anticipate that a child on the sidewalk will 4*3 Path V. Tower Grove & L. Ry., 105 Mo. 537. 444 Hays V. Gainesville St. Ry. Co., 70 Tex. 602. 445 North Chicago St. R. Co. v. Johnson (111.) 68 N. E. 463; Bal- timore City Passenger Ry. Co. v. McDonnell, 43 Md. 534; San Antonio Traction Co. v. Court (Tex. Civ. App.) 71 S. W. 777; Forrestal v. Milwaukee Elec. Ry. & Light Co. (Wis.) 97 N. "W. 182. 446 Strutzel v. St. Paul City Ry. Co., 47 Minn. 543. 447 Wihnyk v. Second Ave. R. Co., 14 App. Div. (N. Y.) 515. 448Tholen v. Brooklyn City R. Co., 10 Misc. Rep. (N. Y.) 283. 449 Jones V. Brooklyn Heights R. Co., 10 Misc. Rep. (N. Y.) 543. (273) Ry. Ace— 18. §105 STREET RAILWAY ACCIDENT LAW. [Ch. 6 run suddenly upon the track, and, even if he does see a child running toward the track, it is not absolutely his duty to stop the car at once.*^" In Philadelphia City Passenger Ey. Co. V. Henrice*^^ it was held that a driver is not bound, as a matter of law, to stop his car when he sees a child ap- proaching a track; and in West Chicago St. E.. Co. v. Schwartz*^^ it was held that a motorman who sees persons approaching the track has a right to assume that they will stop before reaching it, and need not stop his car or slacken speed. Great care must be exercised at street crossings,*^* or at a place near a street intersection.*^* In Budd V. Meriden Electric E. Co.**^ it was held that an ordinance providing that no person should play in the street so as to interfere with their safe, free, and convenient use by travelers cannot lessen the duty of a motorman to use due care towards a child twenty-one months old alone in the street. It has been held that the cab of a car is for the motorman alone, and that, while running his car, he should attend strictly to business.*^' No man should have charge of an electric car running through city streets who has not the full use of both eyes.*®'' It is not the duty of those in charge *50 Mt. Adams & E. P. R. Co. v. Cavagna, 6 Ohio Cir. Ct. R. 606. *"92 Pa. 431. 452 93 111. App. 387. «8 Chicago City Ry. Co. v. Tuohy, 196 111. 410; Fenton v. Sec- ond Ave. R. Co., 126 N. Y. 625; Ellick v. Metropolitan St. Ry. Co., 15 App. Div. (N. Y.) 556; Hedin v. Suburban Ry. Co., 26 Or. 155. 454 Louisville Ry. Co. v. French (Ky.) 71 S. W. 486. 456 69 Conn. 272. 466 Schnur v. Citizens' Traction Co., 153 Pa. 29; Henne v. Peo- ples' St. Ry. Co., 1 Pa. Super. Ct. 311. 457 Rice V. Crescent City R. Co., 51 La. Ann. 108. (274) Ch. 6] PEDESTRIANS RUN OVER. 8 IQS of street cars to be at all times so stationed that children cannot jump on them in sport.*^^ While it is not negligence not to have the conductor on a street car in addition to a driver,* ^^ the fact that a driver performs the duty of a con- ductor in addition to his own will not excuse him for running over a child if he could have avoided the accident if his at- tention had not been so taken up, since the duty of a car driver to the public is paramount to that which he owes to his employer.**" A driver is not necessarily guilty of negli- gence in turning his head for a moment to see if a person on the sidewalk desires to take passage.**-' On the question of keeping a proper lookout, it has been held to be evidence of negligence that the driver or motor- man was not looking ahead,*'^ that he was facing at right angles to the course of his car,**^ and that he was looking to- 458 Chicago West Div. Ry. Co. v. Hair, 57 111. App. 587. 459 Dunn V. Cass Ave. & P. G. Ry. Co., 21 Mo. App. 188. 460 Anderson v. Minneapolis St. Ry. Co., 42 Minn. 490; DaM v. Milwaukee City Ry. Co., 65 Wis. 371. 401 Johnson v. Reading City Passenger Ry., 160 Pa. 647. 462 Commonwealth v. Metropolitan R. Co., 107 Mass. 236; Rosen- kranz v. Lindell Ry. Co., 108 Mo. 9; Humbird v. Union St. Ry. Co., 110 Mo. 76; Mangam v. Brooklyn R. Co., 38 N. Y. 455; Nugent v. Metropolitan St. Ry. Co., 17 App. Div. (N. Y.) 582; Dowd v. Brook- lyn Heights R. Co., 9 Misc. Rep. (N. Y.) 279; Jones v. Brooklyn Heights R. Co., 10 Misc. Rep. (N. Y.) 543; Sciurba v. Metropolitan St. R. Co., 73 App. Div. (N. Y.) 170; Harkins v. Pittsburg, A. & M. Traction Co., 173 Pa. 149; Reilley v. Philadelphia Traction Co., 176 Pa. 335; Evers v. Philadelphia Traction Co., 176 Pa. 376; Kroesen v. New Castle Electric St. Ry. Co., 198 Pa. 26; San An- tonio Traction Co. v. Court (Tex. Civ. App.) 71 S. W. 777. 463 Washington & G. Ry. Co. v. Gladmon, 15 Wall. (U. S.) 401; Reiners v. Washington & G. R. Co., 9 App. D. C. 19; Senn v. Southern Ry. Co., 108 Mo. 143; Adams v. Metropolitan St. Ry. Co., 60 App. Div. (N. Y.) 188. (275) §105 STREET RAILWAY ACCIDENT LAW. [Ch. 6 wards the rear platform.*** A charge that a driver must keep a strict lookout forward was held to be erroneous, since his due care, in the absence of such lookout, was a question for the jury.*^^ Where the driver of a car ran over a girl two and a half years old, and it appeared that he was making change for a passenger at the time, this was held to be negli- gence;*** and when it appeared tl the driver of a car ran over a child, and that he had his back turned to the horses and was giving change to a passenger when the accident oc- curred, this was held to be evidence of negligence for the jury.**^ Negligence is for the jury where a driver could have seen a boy from fifty to one hundred feet away,*** or ninety feet away,**® and where a boy fell on the track eighty feet ahead of a street car, and the motorman did not sec him in time to avoid running over him.*'^* Negligence was held to be for the jury in a number of cases, in all of which there was more or less evidence that an insufficient watch was kept.*^i 184 Collins V. South Boston R. Co., 142 Mass. 301; Weissner v. St. Paul City Ry. Co., 47 Minn. 468; Levy v. Dry Dock, B. B. & B. R. Co., 12 N. Y. Supp. 485; Dallas Rapid Transit Ry. Co. v. Elliott, 7 Tex. Civ. App. 216. 465 Wright V. Third Ave. Ry. Co., 5 N. Y. Supp. 707. 466 Hyland v. Yonkers R. Co., 4 N. Y. Supp. 305. 467 Pascoshell v. Twenty-Third St. R. Co., 23 N. Y. Wkly. Dig. 200. 468 Muller V. Brooklyn Heights R. Co., 18 App. Div. (N. Y.) 177. 469 Shenners v. West Side St. Ry. Co., 78 Wis. 383. 470 Kitay v. Brooklyn, Q. C. & S. R. Co., 23 App. Div. (N. Y.) 228. 471 Duncan v. Rome St. R. Co., 99 Ga. 98; Quinoy Horse Ry. & Carrying Co. v. Gnuse, 38 111. App. 212; Elwood Electric St. Ry. Co. V. Ross, 26 Ind. App. 258; Nelson v. Crescent City R. Co., 49 La. Ann. 491; Rice v. Crescent City R. Co., 51 La. Ann. 108; Gray (276) Jh. 6] PEDESTRIANS RUN OVER. § 105 Where the d}'iver of a car saw a girl standing close to the track, with her back to the car, fifty feet away, and did not 3heck the speed of his car;*^^ v/here a driver saw a child under two years of age playing in the street within six feet of the track, and kept his horses on a fast trot until within seven feet of the child ;*^^ where a motorman saw a boy oi five running towards the car with his hands outstretched, but did not stop his car as quickly as possible f* and where there was evidence that a driver was blind in one eye, was not look- ing, and did not stop his car as soon as he could,*^® — negli- gence in all of these cases is for the jury. Negligence was also for the jury in a number of cases where children wert V. St. Paul City Ry. Co., 87 Minn. 280; Winters v. Kansas Citj Cable Ry. Co., 99 Mo. 509; Baird v. Citizens' Ry. Co., 146 Mo. 265: Hogan V. Citizens' Ry. Co.^ 150 Mo. 36; Burnstein v. Cass Ave & F. G. Ry. Co., 56 Mo. App. 45; Aaron v. Second Ave. R. Co., i Dalr (N. Y.) 127; Giraldo v. Coney Island & B. R. Co., 16 N. Y Supp. 774; Citizens' Passenger Ry. Co. v. Foxley, 107 Pa. 537, Woeckner v. Erie Electric Motor Co., 176 Pa. 451; McCuUough v Pittsburg, A. & M. Traction Co., 183 Pa. 241; Jones v. United Trae tion Co., 201 Pa. 344; San Antonio St. Ry. Co. v. Cailloutte, 7! Tex. 341; Mitchell v. Tacoma Ry. & Motor Co., 9 Wash. 120, Slensby v. Milwaukee St. Ry. Co., 95 Wis. 179; Dahl v. Milwaukei City Ry. Co., 62 Wis. 652. 472 Mallard v. Ninth Ave. R. Co., 15 Daly (N. Y.) 376. 473 Parris v. Cass Ave. & P. G. Ry. Co., 80 Mo. 325. 474 Mason v. Minneapolis St. Ry. Co., 54 Minn. 216. 475 Silberstein v. Houston, W. St. & P. F. R. Co., 4 N. Y. Supp. 843 476 West Chicago St. R. Co. v. Stoltenberg, 62 111. App. 420; Wes Chicago St. R. Co. v. Sullivan, 64 111. App. 628; Calumet Electri St. Ry. Co. V. Van Pelt, 68 111. App. 582; Calumet Electric Rj Co. V. Lewis, 68 111. App. 598; West Chicago St. R. Co. v. Whit taker, 72 111. App. 48; North Chicago St. R. Co. v. Hoffart, 82 111 App. 539. (277 ^ 105 STREET RAILWAY ACCIDENT LAW. [Ch. 6 In many cases where children have been run over, the court has held, as a matter of law, that there was not sufficient evidence of negligence on the part of the company to justify a verdict for the plaintiff.^^^ Such a ruling has been made in the case of a child eighteen months old,*'* a child of two,*''^ a child of three years and eight months,**" a boy of four,**^ a boy of six years and four months,**^ a boy of six and a half,**^ a girl of seven and a half,*** a boy of seven and a half,**^ a boy of eight,**® and a boy of ten.**' A very common case where there is held to be no negli- gence on the part of the company is where a child runs un- expectedly in front of a street car.*** The case is still strong- er for the company where a child runs in front of a car in an unusual place, as in the middle of a block.**® *77 Kline v. Electric Traction Co., 181 Pa. 276; Cords v. Third Ave. R. Co., 56 N. Y. Super. Ct. 319. ' 478 Sciortino v. Crescent City R. Co., 49 La. Ann. 7. 470Boland v. Missouri R. Co., 36 Mo. 484; Citizens' Passengei Ry. Co. V. Costigan (Pa.) 7 Atl. 91. 480 Moss V. Philadelphia Traction Co., 180 Pa. S89. 481 Jaquinto v. Broadway & S. Ave. R. Co., 2 Misc. Rep. (N. Y.) 174. 482 Cominskey v. Connellsville, N. H. & L. St. Ry. Co., 4 Pa Super. Ct. 631. 483 Lombard & S. Sts. Passenger Ry. Co. v. Steinhart, 2 Penny (Pa.) 358. 484 Flanagan v. People's .Passenger Ry. Co., 163 Pa. 102. 485 Pinley v. West Chicago St. R. Co., 90 111. App. 368. 486 Squire v. Central Park, N. & B. R. R. Co., 36 N. Y. Super. Ct 436. 487 Foy v. Toledo Consol. St. Ry. Co., 3 Ohio Dec. 22. 48S White V. Albany Ry., 35 App. Div. (N. Y.) 23; Chilton v Central Traction Co., 152 Pa. 425. 489 Reich V. Union Ry. Co., 78 Hun (N. Y.) 417; Greenberg v Third Ave. R. Co., 35 App. Div. (N. Y.) 619. (278) Ch. 6] PEDESTRIANS RUN OVER. § 105 A ruling of no negligence on the part of the companv where a child goes suddenly in front of a car has been made in the case of a child of three,*"" a boy of four,*" a boy of five years and four months,"^ ^ pj^j^^j ^f g^g yg^j.g ^^^ ^^^^ months,*®^ a boy of five years and eleven months,*'''* a child between five and six,*"^ ^ i^^ ^f six,*^'' a boy of six and a half,*"^ a boy nearly seven,*"^ a boy of seven,*^** a child of eightj^"" a boy of nine,5oi a girl of ten,^^^ a boy of ten,^''^ a boy of eleven,^°* a boy of twelve, '^°'^ and one of sixteen.^°^ Where a child comes directly from in front of some ob- struction, the case is stronger in favor of the company; and 490 Maschek v. St. Louis R. Co., 71 Mo. 276; Gallaher v. Crescent City R. Co., 37 La. Ann. 288; Kierzenkowski v. Philadelphia Trac- tion Co., 184 Pa. 459. *9i Schneidau v. New Orleans & C. R. Co., 48 La. Ann. 866. 482 Sciurba v. Metropolitan St. Ry. Co., 84 N. Y. Supp. 85; Tishacel V. Milwaukee Electric Ry. & Light Co., 110 Wis. 417. 403 Trumbo's Adm'r v. City St. Car Co., 89 Va. 780. 494 Adams v. Nassau Electric R. Co., 41 App. Div. (N. Y.) 334. 495 Campbell v. New Orleans City R. Co., 104 La. 183. 496 Fleishman v. Neversink Mountain R. Co., 174 Pa. 510; Cal lary v. Easton Transit Co., 185 Pa. 176; Hunter v. Consolidatec Traction Co., 193 Pa. 557. 497 Klein v. Crescent City R. Co., 23 La. Ann. 729. 408 Culbertson v. Crescent City R. Co., 48 La. Ann. 1376; Hol dridge v. Mendenhall, 108 Wis. 1. 409 Stanley v. Union Depot R. Co., 114 Mo. 606. 600 Baker v. Eighth Ave. R. Co., 62 Hun (N. Y.) 39. 601 Dunn v. Cass Ave. & F. G. Ry. Co., 98 Mo. 652; North Hud son County Ry. Co. v. Flanagan, 57 N. J. Law, 696. 602 Kennedy v. St. Louis R. Co., 43 Mo. App. 1. 603 Winterf eld v. Second Ave. R. Co., 20 N. Y. Supp, 801. 604 McLaughlin v. New Orleans & C. R. Co., 48 La. Ann. 23 Miller v. Union Traction Co., 198 Pa. 639. 606 Fletcher v. Scranton Traction Co., 185 Pa. 147. 606 Mulcahy v. Electric Traction Co., 185 Pa. 427. (279; g ]05 STREET RAILWAY ACCIDENT LAW. [Ch. 6 it lias been held that, where a boy of five years and three months,^"'' and where a boy of seven,^"* rushed suddenly from behind a team directly in front of a car, there was no negli- gence on the part of the company. In like manner, where a boy of six darted from a pile of lumber in front of a street car, there was held to be no evidence of negligence on the part of the motorman, even thoiigh he did not sound his gong.^"® There have been numerous rulings on the question of negligence where a child attempts to cross in front of a street car, and falls on the track. In a number of cases there was held to be no negligence ;^^'* and in Stabenau v. Atlantic Ave. E. Co.,^^^ where a child would have crossed the track in safety if she had not fallen, it was held not to be negligence on the part of the motorman not to try to stop the car until the child fell. Where the hordes and the front part of the car passed a child less than two years of age in safety, and the child then ran against or fell near the car, there was held to be no evidence of negligence.^^^ Where a child two and a half years old was standing at a street crossing, and moved suddenly in front of a street car,^^^ where a child of two placed itself in front of the mule drawing a car, where the driver could not see it,^" and where eoTOgier v. Albany Ry., 88 Hun (N. Y.) 486. sosFlynn v. Metropolitan St. Ry. Co., 10 App. Div. (N. Y.) 258. B09 Perry v. Macon Consol. St. R. Co., 101 Ga. 400. oioFenton v. Second Ave. R. Co., 126 N. Y. 625; Lavin v. Sec- ond Ave. R. Co., 12 App. Div. (N. Y.) 381; De lola v. Metropolitan St. Ry. Co., 37 App. Div. (N. Y.) 455. B11155 N. Y. 511. 012 Bulger v. Albany Ry., 42 N. Y. 459. 613 Citizens' St. Ry. Co. v. Carey, 56 Ind. 396. B14 Hearn v. St. Charles St. R. Co., 34 La. Ann. 160. (280) Ch. 6] PEDESTRIANS RUN OVER. § 105 a boy of six stepped on the track to look for a penny which he had lost, and was run over,''^^ there was held in each case to be no evidence of negligence. Similarly, there was held to be no negligence where a boy of twelve was run over while trying to board a moving car when the driver had not seen his signal,^^^ and where a boy of four years and five months was compelled to leave the car on which he was a trespasser, and ran in front of another car.^^'' In an emergency it is not negligence for a motorman to apply the brake instead of ringing the gong, or to use the brake instead of the apparatus used to control the electric power.^^® In an action for willfully injuring a deaf mute of thir- teen, a verdict for the defendant is justified when there is evidence that the street was dark, and that the motorman rang his gong and reversed.^^^ Where an employe in charge of a car catches a boy and lectures him for stealing a ride, the company is not liable when the boy, on being released, rushes blindly in front of another car.^^" When a boy jumps from the rear of a wagon directly in front of a car, there is no neg- ligence on the part of the motorman. ^^^ A number of cases have been decided on the question of what is proper speed for a car. Permission by ordinance to 615 Frank v. Metropolitan St. Ry. Co., 44 App. Div. (N. Y.) 243, 616 West Chicago St. R. Co. v. Binder, 51 111. App. 420. 61T Mack V. Lombard & S. Sts. Passenger Ry. Co., 20 Phila. (Pa.) 207. 618 Stabenau v. Atlantic Ave. R. Co., 155 N. Y. 511. 6i9Bonliam v. Citizens' St. R. Co., 158 Ind. 106. 620 Palmisano v. New Orleans City R. Co., 108 La. 243. 621 Baler v. Camden & S. Ry. Co. (N. J. Law) 52 Atl. 215. (281) §105 STREET RAILWAY ACCIDENT LAW. [Ch. 6 run a car at a certain rate of speed is not an authority to run the car up to that limit, regardless of circumstances.^^^ All persons in a street have a right to expect that an ordi- nance as to speed will be observed f^^ and if the speed is greater than an ordinance allows, and an accident happens which would not have occurred if the car had been traveling at ordinary speed, this is negligence. ^^* In Riley v. Salt Lake Rapid Transit Co.^^® it was held that running a car faster than a city ordinance allows is presumptive evidence of negligence, but it is not conclusive.^^^ In the absence of an ordinance it has been held that cars may be run at any convenient rate of speed which is not dangerous to travelers ;®^^ and it has been held more specifi- cally that running twelve miles an hour^^® or twelve to fif- teen miles an hour^^^ is not negligence as a matter of law. It is error to instruct the jury that a motorman should run a car so that it could be stopped readily and quickly if the occasion requires it, without explanation or qualification.^^'* On the question of speed, negligence has been held to be for the jury where a car was traveling at "rapid speed,"^^^ 522Qulncy Horse Ry. & Carrying Co. v. Gnuse, 38 111. App. 212; Schmidt v. St. Louis R. Co., 149 Mo. 269. 523 Wright V. Maiden & M. R. Co., 4 Allen (Mass.) 283. 624 Baltimore City Passenger Ry. Co. v. McDonnell, 43 Md. 534 525 10 Utah, 428. 026 Hanlon v. South Boston Horse R. Co., 129 Mass. 310. 527 Citizens' St. Ry. v. Steen, 42 Ark. 321. 528 Rack V. Chicago City Ry. Co., 69 111. App. 656. 528Bittner v. Crosstown St. Ry. Co., 153 N. Y. 76. 530 Day V. Citizens' Ry. Co., 81 Mo. App. 471. 631 Gumby v. Metropolitan St. Ry. Co., 29 App. Dlv. (N. Y.) 335; Timony v. Brooklyn City & N. R. Co., 10 Misc. Rep. (N. Y.) 261; Thompson v. United Traction Co., 193 Pa. 555; Beard v. Read ing City Passenger Ry. Co., 3 Pa. Super. Ct. 171. (282) Ch. 6] PEDESTRIANS RUN OVER. § IQS "a very rapid specd,"^^^ "unusual speed,"^^^ and "twice tLe speed allowed by law."^^* ISTegligence is for the jury where a motorman ran an elec- tric car down a grade in a crowded city street, so that he could not stop it within forty feet;®^^ where a motorman slackened his speed while two boys were crossing the track, and then suddenly increased it when fifteen feet away;^^** and where a driver was traveling at the rate of ten to twelve miles an hour, and was urging his horses to still greater speed. ^^''' Negligence is also for the jury where a car was being driven fourteen or fifteen miles an hour,^^* and where a motorman increased his speed as he approached a cross- jjjg_539 ^ number of cases have arisen where children were run over while near the track after getting out of school; and where there is evidence that children were crowding around the track, negligence is for the jury when it appears that a motorman did not keep his car under control,®*" that he put on the power when near the children,''*^ that he ran his car twelve miles an hour without warning,^*^ and that he ran his car at a speed of eight or ten miles an hour.^** 532 Pendril v. Second Ave. R. Co., 34 N. Y. Super. Ct. 481. 533 Dunseath v. Pittsburg, A. & M. Traction Co., 161 Pa. 124. 534 Huerzeler v. Central Crosstown R. Co., 1 Misc. Rep. (N. Y.> 136. 635 Pullerton v. Metropolitan St. Ry. Co., 37 App. Div. (N. Y.> 386. 636 Legare v. Union Ry. Co., 61 App. Div. (N. Y.) 202 63TGumljy V. Metropolitan St. Ry. Co., 65 App. Div. (N. Y.) 38. 638 Adams v. Nassau Electric R. Co., 51 App. Div. (N. Y.) 241. 639 Bllick V. Metropolitan St. Ry. Co., 15 App. Div. (N. Y.) 556. 640 Oster V. Schuylkill Traction Co., 195 Pa. 320. 641 Howell V. Rochester Ry. Co., 24 App. Div. (N. Y.) 502. 642 Consolidated City & C. P. Ry. Co. v. Carlson, 58 Kan. 6a. 643 Buente v. Pittsburg, A. & M. Traction Co., 2 Pa. Super. Ct 185. (283) ^ lOS STREET RAILWAY ACCIDENT LAW. [Ch. 6 Where a boy between seven and eight years old stood on a street railway track waiting for cars to pass on the other track, and was struck by a car which approached without any signal, negligence was held to be for the jury.®** Where a car is running twelve miles an hour at a place where it is permitted to do so by a city ordinance, it is not running at excessive speed, so that the jury can impute negligence to the company on account of the speed alone.®*® The varying facts as to the speed, lack of warning, and fail- ure to keep a proper lookout may be combined in the same cases. Thus, there was held to be evidence of negligence for the jury where the motorman gave no signal, and had his face turned away from the track,®*® where the car was "traveling at high speed, and the driver was looking away from the traek,®*^ and where there was evidence that a ear was traveling at a high rate of speed without giving any warn- ing.®*8 Where a plaintiff was struck by a car and carried a distance ■of sixty-three feet, and the motorman testified that he could 5" Griffiths V. Metropolitan St. Ry. Co., 63 App. Dlv. (N. Y.) 86. 6*6 White V. Albany Ry., 35 App. Div. (N. Y.) 23. 64S pinkelstein v. Brooklyn Heights R. Co., 51 App. Div. (N. Y.) .287; Karahuta v. Schuylkill Traction Co., 6 Pa. Super. Ct. 319. 647 Mason v. Atlantic Ave. R. Co., 4 Misc. Rep. (N. Y.) 291; Goldstein v. Dry Dock, E. B. & B. R. Co., 35 Misc. Rep. (N. Y.) 200. 548 Chicago City Ry. Co. v. Robinson, 27 111. App. 26; Chicago City Ry. Co. V. Robinson, 127 111. 9; Chicago City Ry. Co. v. Tuohy, 196 111. 410; Consolidated Traction Co. v. Scott, 58 N. J. Law, 682; Davidson v. Metropolitan St. Ry. Co., 75 App. Div. (N. Y.) 426; LafCerty v. Third Ave. R. Co., 85 App. Div. (N. Y.) 592; laquinta v. Citizens' Traction Co., 166 Pa. 63; Maher v. Philadelphia Traction Co., 181 Pa. 391; Walhrldge v. Schuylkill Electric Ry. Co., 190 Pa. 274; Hoon v. Beaver Valley Traction Co., 204 Pa. 369. <284) Ch. 6] PEDESTRIANS RUN OVER. § 105 have stopped within twenty-five feet ;^** where the body of a child was on the fender, and remained there for a distance of seventy feet, while the car could have been stopped within twenty-five or thirty feet j®^" where the body of a child re- mained on the fender for one hundred feet, and was finally run over, and it appeared that the car could have been stopped within twenty-five or fifty feet;®^-"^ and where the body of a child was carried along for some distance, and finally run over,^^^ — it was held in all of these cases that there was evi- dence of negligence for the jury. Where a driver paid no attention to a warning, and did not have his hand on the brake,^^^ where the driver detached his horses and swung them into a team, so that they ran away and injured a boy,^^* and where a boy who fell on the track was run over, and it ap- peared that the car could have been stopped in from two to four feet,^^^ there was held to be evidence of negligence. The company was held not to be liable where it appeared that a motorman used his best judgment in reversing his car after running over a child,^'* and where the driver of a car used his best judgment when his horses ran away.^^'' Where the company had notice of a defective brake, but did not remedy 6« Cohen v. Metropolitan St. Ry. Co., 63 App. Div. (N. Y.) 165. 650 Green v. Metropolitan St. Ry. Co., 42 App. Div. (N. Y.) 160 561 Green v. Metropolitan St. Ry. Co., 65 App. Div. (N. Y.) 54. 552 -vfeitzman v. Nassau Electric R. Co., 33 App. Div. (N. Y.) 585. 653 Block V. Harlem Bridge, H. & F. Ry. Co., 9 N. Y. Supp. 164. 654 Sutter V. Omnibus Cable Co., 107 Cal. 369. 655 Totarella v. New York & Q. C. Ry. Co., 53 App. Div. (N. Y.) 413. 656 Blttner v. Crosstown St. Ry. Co., 153 N. Y. 76. 557 Benoit v. Troy & L. R. Co., 154 N. Y. 223. (285) § 105 STREET RAILWAY ACCIDENT LAW. [Ch. 6 it, this was held to be a clear case of negligence;'^® and where hoys had a habit of meddling with the brakes of a car, and the company knew this, and usually tied down their brakes, evidence that the brake was not tied down, and that the accident would not have happened but for this, is suffi- cient to show negligence.^^* It is not negligence to leave a small flatcar unsecured, so that children, while playing with it, ran over one of their number, a girl of seven j^®" and it has been held that a car standing on a track when not in use, and secured by ordinary brakes, is not a dangerous machine, within the meaning of the turntable cases.'®^ Ordinances restricting the speed of horse cars are not applicable to a succeeding company operating its cars by elec- tricity.'^^ Evidence that there were no lights on the car, and no bell was rung, is sufficient on the question of negli- gence.'®^ A street railway company is required to use the best precautions against danger, in general use, the value of which has been proved by experience,'®* but an instruction that a street railway company must use such lights as will enable it to avoid accidents requires too great a degree of 668 Thompson v. Salt Lake Rapid Transit Co., 16 Utah, 281. 659 Dintruff v. Rochester City & B. R. Co., 10 N. Y. Supp. 402. ssoKaumeier v. City Electric Ry. Co., 116 Mich. 306. 661 George v. Los Angeles Ry. Co., 126 Cal. 357. 662 Bonham v. Citizens' St. R. Co., 158 Ind. 106. 663 Welsh V. United Traction Co., 202 Pa. 530. 664 Mock v. Los Angeles Traction Co. (Cal.) 73 Pac. 455; Zim- merman v. Denver Consol. Tramway Co. (Colo. App.) 72 Pac. 607; Buente v. Pittsburg, A. & M. Traction Co., 2 Pa. Super. Ct. 185. 666 Memphis City Ry. Co. v. Logue, 13 Lea (Tenn.) 32. (286) Ch. 6] PEDESTRIANS RUN OVER. 8 105 An instruction that a company is negligent, as a matter of law, in not having fenders, is erroneous,^^* even when they are required by law,^"^^ and in Piatt v. Albany Ry.,*" where an ordinance required the use of fenders, and the company used due diligence in procuring them, there was held to be no negligence. The fact that a pair of ordinarily gentle horses ran away through fright caused by a third party does not sbow vicious propensity, and it is not negligence to continue using them after they have so run away.^^^ The words "any railroad" in a statute include street rail- ways.^®* 566 Hogan V. Citizens' Ry. Co., 150 Mo. 36. 566a Henderson v. Durham Traction Co., 132 N. C. 779, 56T 170 N. Y. 115. 568 Benoit v. Troy & L. R. Co., 154 N. Y. 223. BosBammel v. Kirby, 19 Tex. Civ. App. 198. (287) CHAPTER VII. ACCIDENTS TO DRIVERS OF WAGONS. I. Collisions Between Gae and Wagon. § 106. Due Care — Crossing Tracks — Stopping, Looking, and Listening. 107. Same — Driving on or near Tracks. 108. Same — Imputed Negligence. 109. Same — Age and Occupation. 110. Right of Way. 111. Negligence of Company — General Considerations. 112. Negligence in Operation— Lookout, Speed, Warning, etc. II. Frightening Hokses. § 113. Due Care of Driver of Horse. 114. Negligence of Company. I. Collision between Cae and Wagon. A street car has a superior right of way over a wagon, since it cannot leave its tracks, and since it is run for the benefit of the public, but at street crossings the rights of the car and of the wagon are equal. Both the driver of the wagon and the man in charge of the car must use reasonable care to avoid collisions, and a plaintiff, although guilty of lack of due care, may recover if the defend- ant could have prevented the accident by the exercise of due care. Whether a case is left to the jury, or whether a ruling is made on the questions of due care and negligence as a matter of law, must depend upon all the circumstances of each indi- (288) Ch. 7] ACCIDENTS TO DRIVERS OP WAGONS. § 160 vidual case. Chief among these circumstances to he considered are the lookout, hoth of the driver and of the man in charge of car, the speed of the car and its distance from the wagon, whether a signal was given, the obstruction of the view and of the track, and the character of the locality. § 106. Due care — Crossing tracks — Stopping, looking, and listening. The most important circumstance bearing on a driver's due care is whether or not he looked for an approaching car be- fore crossing a street railway track. It has been held that a man is not in the exercise of due care when he drives onto a street railway track without looking,^ without stopping or looking,^ or without looking and listening,^ even although, 1 Central Passenger Ry. Co. v. Chatterson, 14 Ky. Law Rep. 663; Cowden v. Shreveport Belt Ry. Co., 106 La. 236; Hurley v. West End St. Ry. Co., 180 Mass. 370; Wood v. Detroit City St. Ry. Co., 52 Mich. 402; Fritz v. Detroit Citizens' St. Ry. Co., 105 Mich. 50; Wosika v. St Paul City Ry. Co., 80 Minn. 364; Smith v. Citizens' Ry. Co., 52 Mo. App. 36; Reynolds v. Third Ave. R. Co., 8 Misc. Rep. (N. Y.) 313; Campbell v. Union Ry. Co., 9 Misc. Rep. (N. Y.) 484; Devine v. Metropolitan St. Ry. Co., 29 Misc. Rep. (N. Y.) 301; Vonelling v. Metropolitan St. Ry. Co., 35 Misc. Rep. (N. Y.) 301; Ward v. Rochester Electric Ry. Co., 17 N. Y. Supp. 427; Schmidt v. Interurban St. Ry. Co., 81 N. Y. Supp. 832; Sohausten V. Toledo Consol. St. Ry. Co., 7 Ohio Cir. Dec. 389; Carson v. Federal St. & P. V. Ry. Co., 147 Pa. 219; Darwood v. Union Trac- tion Co., 189 Pa. 592; Bornscheuer v. Consolidated Traction Co., 198 Pa. 332; Beerman v. Union R. Co. (R. I.) 52 Atl. 1090. 2 Trout V. Altoona & L. V. Electric Ry. Co., 13 Pa. Super. Ct. 17. 3 Highland Ave. & B. R. Co. v. Sampson, 91 Ala. 560, 112 Ala. 425; Burns v. Metropolitan St. Ry. Co. (Kan.) 71 Pac. 244; Van Patten v. Schenectady St. Ry. Co., 80 Hun (N. Y.) 494; Lock- wood V. Belle City St. Ry. Co., 92 Wis. 97; Dummer v. Milwaukee Electric Ry. & Light Co., 108 Wis. 589; Tesch v. Milwaukee Elec- tric Ry. & Light Co., 108 Wis. 593. (289) Ry. Ace— 19. § 106 STREET RAILWAY ACCIDENT LAW. [Ch 7 in the latter case, the car was being run at an unlawful rate of speed.* Where a driver's view is obstructed on account of the construction of his wagon or of the load he may be carrying, the case is still stronger against him.® In Omslaer V. Pittsburg & B. Traction Co.,^ where a driver's view at a crossing was very much obstructed, and a wagon loaded with iron was making noise enough to drown that made by an ap- proaching car, it was held lack of due care to drive upon the track without stopping to listen ; and in Kelly v. Wakefield & S. St. Ey. Co.,'' where the view was obstructed, and the driver did not listen, this was held to be contributory negli- gence. It is not enough for a driver to look when he is some dis- tance away from the track, and then to drive on the track without making any further effort to look for a car; and in a number of cases, where the driver of a team, when some distance from the track, either saw a car or looked for a car and saw none, and then drove upon the track without taking further precautions, he was held not to be in the exer- cise of due care.® The fact that an electric road is in the * Highland Ave. & B. R. Co. v. Sampson, 91 Ala. 560, 112 Ala. 425; Citizens' St. Ry. Co. v. Helvie, 22 Ind. App. 515. 5 Solatinow v. Jersey City, H. & P. St. Ry. Co. (N. J. Sup.) 56 Atl. 235; Roth v. Metropolitan St. Ry. Co., 13 Misc. Rep. (N. Y.) 213; Lang V. Metropolitan St. Ry. Co., 26 Misc. Rep. (N. Y.) 754; Thomas v. Citizens' Passenger Ry. Co., 132 Pa. 504; Wheelahan V. Philadelphia Traction Co., 150 Pa. 187; Helber v. Spokane St. Ry. Co., 22 Wash. 319; Boerth v. West Side R. Co., 87 Wis. 288. 6 168 Pa. 519. 7 175 Mass. 331. 8 State V. United Rys. & Electric Co. (Md.) 54 Atl. 612; Rohe V. Third Ave. R. Co., 10 Misc. Rep. (N. Y.) 740; Winch v. Third Ave. R. Co., 12 Misc. Rep. (N. Y.) 403; Carvanio v. Union Ry. (290) Ch. 7] ACCIDENTS TO DRIVERS OF WAGONS. § 106 country does not relieve a driver of the duty of continuing to look until he reaches the traek.^ If a car is within a driver's range of vision, he is chargeable with knowledge of its approach, even if he claims he did not see it.^* Besides being careless in not keeping a proper lookout for a car, a driver may be equally at fault when he sees a car, but makes a reckless attempt to cross in front of it, and takes his chances as to the success of the attempt, although attempting to cross in front of a car seen to be approaching is not of itself contributory negligence.-'-' Under this state of facts, the driver of a wagon has been held not to be in the exercise of due care;^^ and in De Lon v. Kokomo City St. Co., 84 N. Y. Supp. 246; Ehrisman v. East Harrisburg City Pas- senger Ry. Co., 150 Pa. 180; Kern v. Second Ave. Traction Co., 194 Pa. 75; Burke v. Union Traction Co., 198 Pa. 497; Cupps v. Traction Co., 13 Pa. Super. Ct. 630; Bro-wn v. Traction Co., 14 Pa. Super. Ct. 594; Pieper v. Union Traction Co., 202 Pa. 100; Keenan v. Union Traction Co., 202 Pa. 107; Moser v. Union Traction Co., 205 Pa. 481. Keenan v. Union Traction Co., 202 Pa. 107. 10 Metropolitan St. Ry. Co. v. Agne-w, 65 Kan. 478; Barrie v. St. Louis Transit Co. (Mo. App.) 76 S. W. 706; Stafford v. CMppe-wa Valley Electric R. Co., 110 Wis. 331. 11 Campbell v. Los Angeles Traction Co., 137 Cal. 565. 12 West Chicago St. R. Co. v. Boeker, 70 111. App. 67; South Covington & C. St. Ry. Co. v. Enslen, 18 Ky. Law Rep. 921; Mer- cier V. Ne-w Orleans & C. R. Co., 23 La. Ann. 264; McNab v. United Rys. & Electric Co., 94 Md. 719; Graff v. Detroit Citizens' St. Ry. Co., 109 Mich. 77; O'Connell v. St. Paul City Ry. Co., 64 Minn. 466; Led-widge v. St. Louis Transit Co. (Mo. App.) 73 S. W. 1008; Sch-wanewede v. North Hudson County Ry. Co., 67 N. J. La-w, 449; Rider v. Syracuse Rapid Transit Ry. Co., 171 N. Y. 139; Clancy V. Troy & L. R. Co., 88 Hun (N. Y.) 496; Hamilton v. Third Ave. R. Co., 6 Misc. Rep. (N. Y.) 382; Reiss v. Metropolitan St. Ry. Co., 28 Misc. Rep. (N. Y.) 198; Petri v. Third Ave. R. Co., 30 Misc. (291) g 106 STREET RAILWAY ACCIDENT LAW. [Ch. 7 lly. Go^^ a similar ruling was made in the case of a street sprinkler. Similarly, a driver has been held guilty of lack of due care when he knew that he could not cross ahead of a car unless the motorman slackened speed ;^* where he made a reckless attempt to cross in front of an electric car running at a high rate of speed ;^^ where he could have passed a car in safety, but took the risk of speeding his horses through a narrow space, where there was no roqm for his buggy to pass;^® and where he could have gone an- other way in safety, but chose to drive between an elevated post and a rapidly approaching car.-''' There is another class of cases where the driver of a team goes directly in front of a street car; and in a number of cases there has been held to be lack of due care, irrespective of the question as to whether or not he looked for a car.''® Rep. (N. Y.) 254; Seggerman v. Metropolitan St. Ry. Co., 38 Misc. Rep. (N. Y.) 374; Steinman v. Interurban St. Ry. Co., 84 N. Y. Supp. 231; Smitli v. Electric Traction Co., 187 Pa. 110; Ty- son V. Union Traction Co., 199 Pa. 264; Brown v. Traction Co., 14 Pa. Super. Ct. 594; Haas v. Chester St. Ry. Co., 202 Pa. 145; Christensen v. Union Trunk Line, 6 Wash. 75; Watermolen v. Fox River Electric Ry. & Power Co., 110 Wis. 153. 13 22 Ind. App. 377. 1* Smith V. Chicago General Ry. Co., 86 111. App. 647; William- son V. Metropolitan St. Ry. Co., 29 Misc. Rep. (N. Y.) 324. 15 Borschall v. Detroit Ry., 115 Mich. 473. 16 Culbertson v. Metropolitan St. Ry. Co., 140 Mo. 35. 17 May v. Metropolitan St. Ry. Co., 26 Misc. Rep. (N. Y.) 748. 18 McGrath v. City & Suburban Ry. Co., 93 Ga. 312; Fritz v. De- troit Citizens' St. Ry. Co., 105 Mich. 50; Weaver v. Benton-Belle- fontaine Ry. Co., 60 Mo. App. 207; Meyer v. Brooklyn Heights R. Co., 9 App. Div. (N. Y.) 79; Schlitz v. Nassau Electric R. Co., 44 App. Div. (N. Y.) 542; Boston & P. Dispatch Exp. Co. v. Metro- politan St. Ry. Co., 14 Misc. Rep. (N. Y.) 25; Mason v. Metro- (292) Ch. 7] ACCIDENTS TO DRIVERS OP WAGONS. § 106 The rules as to stopping, looking, and listening whicfi are in force in the case of steam railroads are not applied in all their strictness to street railways,^^ so that it is held that the driver of a wagon about to cross a street railway track need not stop, look, and listen as a matter of law.^" Whether or not he must look and listen is a disputed point. Some cases hold that failure to do so is lack of due care, as a matter of law,^^ and others that it is merely one cir- cumstance for the consideration of the jury.^^ politan St. Ry. Co., 30 Misc. Rep. (N. Y.) 108; Morrow v. Dela- ware County & P. Electric Ry. Co., 199 Pa. 156; Cawley v. La Crosse City Ry. Co., 101 Wis. 145. isOrr V. Cedar Rapids & M. C. Ry. Co., 94 Iowa, 423; Citizens' St. Ry. Co. V. Abright, 14 Ind. App. 433; Cooke v. Baltimore Trac- tion Co., 80 Md. 551; Garrity v. Detroit Citizens' St. Ry. Co., 112 Mich. 369; Shea v. St. Paul City Ry. Co., 50 Minn. 395; Hicks v. Citizens' Ry. Co., 124 Mo. 115; Smith v. Citizens' Ry. Co., 52 Mo. App. 36; Smith v. Metropolitan St. Ry. Co., 7 App. Div. (N. Y) 253; Brozek v. Steinway Ry. Co., 10 App. Div. (N. Y,) 360; Read v. Brooklyn Heights R. Co., 32 App. Div. (N. Y.) 503. 20 Cincinnati St. Ry. Co. v. Whitcomb, 66 Fed. 915; Tacoma Ry. & Power Co. v. Hays, 110 Fed. 496; Davidson v. Denver Tramway Co., 4 Colo. App. 283; Lawler v. Hartford St. Ry. Co., 72 Conn. 74; Frank v. St. Louis Transit Co. (Mo. App.) 73 S. W. 239; Den- nis V. North Jersey St. Ry. Co., 64 N. J. Law, 439; Weiser v. Broadway & N. St. R. Co., 2 Ohio Dec. 463; Lewis v. Cincinnati St. Ry. Co., 10 Ohio S. & C. P. Dec. 53. 21 Highland Ave. & B. R. Co. v. Sampson, 91 Ala. 560; Citizens' St. Ry. Co. V. Helvie, 22 Ind. App. 515; Burns v. Metropolitan St. Ry. Co. (Kan.) 71 Pac. 244; Honick v. Metropolitan St. Ry. Co. (Kan.) 71 Pac. 265; Dieck v. New Orleans, C. & L. R. Co., 51 La. Ann.- 262; Sanitary Dairy Co. v. St. Louis Transit Co. (Mo. App.) 71 S. W. 726; Murray v. St. Louis Transit Co. (Mo.) 75 S. W. 611; Cawley v. La Crosse City Ry. Co., 101 Wis. 145; Dummer v. Mil- waukee Electric Ry. & Light Co., 108 Wis. 589; Tesch v. Milwaukee Electric Ry. & Light Co., 108 Wis. 593. 22 Robbins v. Springfield St. Ry. Co., 165 Mass. 30; Riley v. Min- (293) § 106 STREET RAILWAY ACCIDBN'T LAW. [Ch. 7 Failure to listen before crossing a street railway track is not lack of due care as a matter of law,^^ and though a failure to look usually bars recovery, it is generally held that the duty of looking is not an absolute one.^* In Pennsyl- vania it is held that the duty to look is an absolute one, and continues until the track is reached.^^ Cable and electric cars are regarded as more dangerous than horse cars;^* and in Pennsylvania the rule has been declared to be that a person is bound to look and listen before crossing cable or electric street railway tracks, and that, while he need not stop, as a matter of law, there are many cases where it is his duty to do so.^^ This rule has been in- correctly quoted in subsequent cases as holding that a person must always look, and in some instances, if his view is ob- structed, listen, and perhaps stop.^^ Other Pennsylvania neapolis St. Ry. Co., 80 Minn. 424; Consolidated Traction Co. v. Haight, 59 N. J. Law, 577; Read v. Broolilyn Heiglits R. Co., 32 App. Div. (N. Y.) 503; Wilson v. Citizens' St. Ry. Co., 105 Tenn. 74; Memphis St. Ry. Co. v. Riddiok (Tenn.) 75 S. \J. 924. 23 Citizens' St. Ry. Co. v. Abright, 14 Ind. App. 433. 24 Dennis v. North Jersey St. Ry. Co., 64 N. J. Law, 439; Curry V. Union Electric Ry. Co., 86 Hun (N. Y.) 559; Campbell v. Union Ry. Co., 9 Misc. Rep. (N. Y.) 484; Vonelling v. Metropolitan St. Ry. Co., 35 Misc. Rep. (N. Y.) 301; Westerman v. Metropolitan St. Ry. Co., 84 N. Y. Supp. 501; Carson v. Federal St. & P. V. Ry. Co., 147 Pa. 219. 25 Burke v. Union Traction Co., 198 Pa. 497. And see Wilman v. People's Ry. Co. (Del.) 55 Atl. 332. 26Garrity v. Detroit Citizens' St. Ry. Co., 112 Mich. 369; Winter V. Federal St. & P. V. Passenger Ry. Co., 153 Pa. 26. 2T Omslaer v. Pittsburg & B. Traction Co., 168 Pa. 519. 28 Jones Bros. v. Greensburg, J. & P. St. Ry. Co., 9 Pa. Super. Ct 65 ; Trout v. Altoona & L. V. Electric Ry. Co., 13 Pa. Super. Ct. 17. (294) Ch. 7] ACCIDENTS TO DRIVERS OF WAGONS. § 106 cases hold that a person must look in both directions just before crossing the track, and, if there is any obstruction, must listen."" In Smith v. Citizens' Ey. Co.^o the rule is held to be that a driver need not stop, but must listen, and look unless his view is obstructed. . Other cases refuse to lay down any specific rule as to stopping, looking, and lis- tening, but hold the person crossing the tracks to the exercise of ordinary eare.^-'^ A person coming from a private road onto a highway is not bound to look and listen for an approaching car."- Whether a ear is being driven in a crowded street or a thinly settled surburban district is a circumstance bearing on the plaintiif's due care, and not looking, under the latter condi- tions, is lack of due care.'^ In the many cases where the due care of the driver of a team has been left to the jury, certain special circumstances need to be considered. The speed of the car, its distance from the driver of the team, whether warning was given, the obstruction of the view, and whether the accident occurred at a crossing are important considerations. Where it ap- peared that the driver looked before crossing a track, but 29 Ehrisman v. East Harrisburg City Passenger Ry. Co., 150 Pa. 180; Wheelahan v. Philadelphia Traction Co., 150 Pa. 187. 30 52 Mo. App. 36. 31 Davidson v. Denver Tramway Co., 4 Colo. App. 283; Brown v. Wilmington City Ry. Co., 1 Pennewill (Del.) 332; Price v. Charles Warner Co., 1 Pennewill (Del.) 462; Cox v. Wilmington City Ry. Co. (Del.) 53 Atl. 569; Snyder v. People's Ry. Co. (Del.) 53 Atl. 433; Fritz v. Detroit Citizens' St. Ry. Co., 105 Mich. 50. 32 Dunican v. Union Ry. Co., 39 App. Div. (N. Y.) 497. 33 Wosika V. St. Paul City Ry. Co., 80 Minn. 364. (295) § 106 STREET RAILWAY ACCIDENT LAW. [Ch. 7 was struck by a car coming at a higli rate of speed, due care was held to be for the jury.** It is not lack of due care, as a matter of law, to pass in front of a cable car which is standing still, although the car is but a short distance away,"^ or one hundred feet away,*® but where a driver saw a car standing still thirty feet away, and drove slowly on, Avithout looking again, this was held lack of due care.*®^ Whether it is lack of due care to attempt to cross a street railway track about thir- ty feet in front of a slowly moving car is a question for the jary;*'^ and it is not lack of due care, as a matter of law, to attempt to cross a street car track when a car is about one hundred feet away,*® half a block away,*® from 34 Hays V. Tacoma Ry. & Power Co., 106 Fed. 48; Tacoma Ry. & Power Co. v. Hays, 110 Fed. 496; Lawler v. Hartford St. Ry. Co., 72 Conn. 74; Metropolitan St. Ry. Co. v. Slayman, 64 Kan. 722; Gal- braith v. West End St. Ry. Co., 165 Mass. 572; Creavin v. Newton St. Ry. Co., 176 Mass. 529; Coleman v. Lowell, L. & H. St. R. Co., 181 Mass. 591; Ryan v. Detroit Citizens' St. Ry. Co., 123 Mich. 597; Moran v. Detroit, Y. & A. A. Ry., 124 Mich. 582; Blate v. Third Ave. R. Co., 44 App. Div. (N. Y.) 163; Vitelli v. Nassau Electric R. Co., 53 App. Div. (N. Y.) 639; Morris v. Metropolitan St. Ry. Co., 63 App. Div. (N. Y.) 78; Kilbane v. Westchester Electric R. Co., 19 Misc. Rep. (N. Y.) 184; Lane v. Brooklyn Heights R. Co., 82 N. Y. Supp. 1057; Moore v. Charlotte Electric St. Ry. Co., 128 N. C. 455; Conyngham v. Erie Electric Motor Co., 15 Pa. Super. Ct. 573; Ham- ilton V. Consolidated Traction Co., 201 Pa. 351. 35 Riegelman v. Third Ave. R. Co., 9 Misc. Rep. (N. Y.) 51. 315 Lowy V. Metropolitan St. Ry. Co., 30 Misc. Rep. (N. Y.) 775. 36a Cosgrove v. Interurban St. Ry. Co., 84 N. Y. Supp. 885. 37 Thoresen v. La Crosse City Ry. Co., 87 Wis. 597. 38 San Antonio Traction Co. v. Upson (Tex. Civ. App.) 71 S. W. 565. 39 Chicago City Ry. Co. v. Sandusky, 198 111. 400. (296) Ch. 7] ACCIDENTS TO DRIVERS OP WAGONS. § 106 two hundred and fifty to three hundred feet away,*" four hundred feet away,*i or to attempt to cross a street ear track twenty-eight feet away, when a car is five hundred feet distant.*^ Where the driver of an ice wagon start- ed to turn onto the track when a car was being started about one hundred and thirty feet away, due care was held to be for the jury;*-'' and while, as a general rule, it is lack of due care to cross a street railway track a short distance in front of an approaching car, where a street is so crowded that a driver would have to wait a long time before crossing at all, he cannot be held to the same degree of care as he would be in a locality where cars pass only at intervals.** Due care is for the jury when a driver attempts to cross at a street crossing when a street car is distant seventy feet,*® seventy-five feet,*® eighty feet,*^ one hundred feet,** two hundred and fifty feet,*^ one hundred yards,*" or half a block ;*^ or where two cars are approaching, in opposite di- rections, one a block away and one three-fourths of a block 40 West Chicago St. R. Co. v. Dedloff, 92 111. App. 547. " Driscoll V. West End St. Ry. Co., 159 Mass. 142. 42Mackie v. Brooklyn City R. Co., 10 Misc. Rep. (N. Y.) 4. 43McCormack v. Nassau Electric R. Co., 16 App. Div. (N. Y.) 24. 44 Kelly V. Brooklyn Heights R. Co., 12 Misc. Rep. (N. Y.) 568; Prince v. Third Ave. R. Co., 84 N. Y. Supp. 542. 45Bruss V. Metropolitan St. Ry. Co., 66 App. Div. (N. Y.) 554. 46 Schoener v. Metropolitan St. Ry. Co., 72 App. Div. (N. Y.) 23. 47 Reilly V. Third Ave. R. Co., 16 Misc. Rep. (N. Y.) 11. 48 Kerr v. Atlantic Ave, R. Co., 10 Misc. Rep. (N. Y.) 264; Moore V. Metropolitan St. Ry. Co., 84 App. Div. (N. Y.) 613. 49 Woodland v. North Jersey St. Ry. Co., 66 N. J. Law, 455. 50 Richmond Traction Co. v. Clarke (Va.) 43 S. E. 618. 51 Reilly v. Metropolitan St. Ry. Co., 26 Misc. Rep. (N. Y.) 814. And see Carter v. Interurban St. Ry. Co., 84 N. Y. Supp. 134. (297) g 106 STREET RAILWAY ACCIDENT LAW. [Ch, 7 away,^^ or one a block away and one half a block away,^ or one a block away and one one liundred and fifty feet away,^* or one a block away, and one two blocks away.®** There is no evidence of lack of due care where a driver could have got across in safety at a crossing if the motor- man had exercised ordinary care, and had reasonable con- trol of the car;®^ and even where a driver at a street cross- ing saw a car approaching at high speed, it was held that he had a right to assume that the motorman would use proper care, and that he was not guilty of lack of due care as a matter of law.^^ Where the driver of a team reached a crossing ahead of a car, and proceeded to cross the track at a walk, due care was held to be for the jury.®'^ The circumstances of the speed of a car, its failure to give warning, and its distance from the driver may be com- bined in the same case. Thus, where a driver looked before crossing a track, and a car came around a corner sixty-five feet away at high speed f^ where the driver of a team saw a car moving slowly about one hundred feet away, and, as he started to cross the track, the car increased its speed f^ and where the driver of a team attempted to cross when a street car was coming at high speed about three hundred 52 McDonald v. Third Ave. R. Co., 16 Misc. Rep. (N. Y.) 52. 63 Hunter v. Third Ave. R. Co., 21 Misc. Rep. (N. Y.) 1. 54Dise V. Metropolitan St. Ry. Co., 22 Misc. Rep. (N. Y.) 97. 64a Chauvin v. Detroit United Ry. (Mich.) 97 N. W. 160. 66 Citizens' Rapid Transit Co. v. Seigrist, 96 Tenn. 119; Saunders V. City & Suburban R. Co., 99 Tenn. 130. 56 Buhrens v. Dry Dock, B. B. & B. R. Co., 53 Hun (N. Y.) 571. 67 Zimmerman v. Union Ry. Co., 3 App. Div. (N. Y.) 219. 68 Walsh V. Atlantic Ave. R. Co., 23 App. Div. (N. Y.) 19. 69 Burgess v. Sixth Ave. R. Co., 13 N. Y. Wkly. Dig. 499. (298) Ch. 7] ACCIDENTS TO DRIVERS OP WAGONS. § 106- feet away, — due care in each case was held to be for the jury.'"' Where a driver looked for a car, but was struck by a car coming at high speed without warning, due care was held to be for the jury f^ and the same ruling was made where a driver attempted to cross a street car track at a crossing with his horse at a walk, when a car was three hun- dred and thirty feet away, and there was evidence that the motorman gave no warning.®^ Where a driver was injured where there were double tracks, and there was evidence that one car approached with- out warning, due care was held to be for the jury.*'* In a number of cases, where a driver's view was some- what obstructed, due care was held to be for the jury, where the additional circumstances were that he looked in both directions before crossing,^* that he looked and listened be- fore crossing,^® that he stopped, looked, and listened before crossing,®^ that it was dusk when he made the attempt,"^ that the car which struck him came at high speed without 60 Consolidated Traction Co. v. Lambertson, 59 N. J. Law, 297. ei O'Callaghan v. Metropolitan St. Ry. Co., 69 App. Div. (N. Y.) 574; Greenfield v. East Harrisburg Passenger Ry. Co., 178 Pa. 194; Frame v. Electric Traction Co., 180 Pa. 49; Hall v. Ogden City St. Ry. Co., 13 Utah, 243; Tescli v. Milwaukee Electric Ry. & Liglit Co., 108 Wis. 593. 62 Raulston V. Traction Co., 13 Pa. Super. Ct. 412. 63 Plant V. Heraty (Mich.) 92 N. W. 284. 64 Curry v. Union Electric Ry. Co., 86 Hun (N. Y.) 559. esLahti v. Fitchhurg & L. St. Ry. Co., 172 Mass. 147; Kelly v. Wakefield & S. St. Ry. Co., 179 Mass. 542; Gebhardt v. St. Louis Transit Co. (Mo. App.) 71 S. W. 448; Manayunk & R. Boarding & Livery Stable Co. v. Union Traction Co., 7 Pa. Super. Ct. 104. 66 Marchal v. IndiaEapolis St. Ry. Co., 28 Ind. App. 133. 67 Thoresen v. La Crosse City Ry. Co., 94 Wis. 129. (299) § 106 STREET RAILWAY ACCIDENT LAW. Ch. 7] warning,®* or was coming eight or ten miles an honr.^' In a number of cases, where there were wagons and other cars on the track, due care was held to be a question for the jury.^" Certain unusual circumstances bearing on the question of due care remain to be considered. Where the driver of a team was signaled to cross by the company's watchman, and was struck by a car;'^^ where a driver involuntarily pulled up his horses while crossing a street railway track on account of a sudden lurch of his carriage;''^ where a car came on the wrong track without a headlight and without warning on a dark winter's morning;''^ and where the driver of a patrol wagon tried to pass in front of a street car, — due care in each case was held to be for the jury.''* Where the driver started to cross in the rear of a car, and the car suddenly backed, while there was evidence that no signal was given, and that there was no one on the rear end of the car, due care was held to be for the jury.''^ Where a driver stopped, looked, and listened, but was struck by a car coming without 68 Hart V. Cedar Rapids & M. C. Ry. Co., 109 Iowa, 631. CO Brozek v. Stelnway Ry. Co., 10 App. Div. (N. Y.) 360. 70 Kerrigan v. West End St. Ry. Co., 158 Mass. 305; Flannagan v. St. Paul City Ry. Co., 68 Mii);i. 300; Schron v. Staten Island Electric R. Co., 16 App. Div. (N. Y.) Ill; Murphy v. Nassau Electric R. Co., 19 App. Div. (N. Y.) 583; Seagriff v. Brooklyn Heights R. Co., 31 App. Div. (N. Y.) 595; Lenkner v. Citizens' Traction Co., 179 Pa. 486. "Fay V. Brook Vn Heights R. Co., 69 App. Div. (N. Y.) 563; Haney v. Pittsburgh, A. & M. Traction Co., 159 Pa. 395. 72 Sheehan v. Citizens' Ry. Co., 72 Mo. App. 524. 73 R. F. Stevens Co. v. Brooklyn Heights R. Co., 59 App. Div.