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motion when he attempted to board it he cannot recover: Pope v. Chicago City Ry. Co., 113 Ill. App. 503; Murphy v. North Jersey St. Ry. Co., 71 N. J. L. 5, 58 Atl. 1018; Boulfrois v. United Traction Co., 210 Pa. 262, 105 Am. St. Rep. 809, 59 Atl. 1007. But where one had stepped on a car when it had almost stopped and was injured by its sudden starting, he was not per se guilty of contributory neg ligence: Mulligan v. Metropolitan St. Ry. Co., 89 App. Div. 207, 85 N. Y. Supp. 791. If, however, a passenger who boarded a mov ing ear and was thrown from the footboard by a jerk of the car, failed to reach a place of safety because of the crowded condition of the car and not on account of the motion of the car, he would be guilty of contributory negligence: Mullane v. New York City Ry. Co., 99 N. Y. Supp. 798. A passenger who sustains injury by reason of riding on the platform when there is room inside the car, is guilty of contributory negligence: Kirchner v. Oil City St. Ry. Co., 210 Pa. 45, 59 Atl. 270. Where a passenger, after signaling the car to stop, left his seat and stood without support, and was thrown down and injured by the stopping of the car, he could not recover: Bendon v. United States Traction Co., 26 Pa. Super. Ct. 539.
b. Passengers Occupying Dangerous Positions.-The general rule is that one who voluntarily occupies a dangerous position in a streetcar assumes such risks as are liable to occur incident to it; but, as passengers are often compelled, owing to the crowded condition of the cars, to stand on the platforms, the running-boards and even at times the bumpers, the question of contributory negligence under these circumstances is not always easy to determine. It has been frequently held that it is not negligence per se for a passenger to stand on the platform of a street-car: Highand etc. Ry. Co. v. Donovan, 94 Ala. 299, 10 South. 139; Babcock v. Los Angeles Traction Co., 128 Cal. 173, 60 Pac. 780; Hesse v. Meriden etc. Tramway Co., 75 Conn. 571, 54 Atl. 299; Augusta etc. Ry. Co. v. Renz, 55 Ga. 126; Chicago etc. Traction Co. v. Lawrence, 113 Ill. App. 269 (affirmed in 211 Ill. 373), 71 N. E. 1024; Sutherland v. Standard L. & A. Insurance Co., 87 Iowa, 505, 54 N. W. 453; Moser v. South Covington etc. Ry. Co., 25 Ky. Law Rep. 154, 74 S. W. 1090; Beal v. Lowell & D. St. Ry. Co., 157 Mass. 444, 32 N. E. 653; Upham v. Detroit City Ry. Co., 85 Mich. 12, 48 N. W. 199, 12 L. R. A. 129; Matz v. St. Paul City Ry. Co., 52 Minn. 159, 53 N. W. 1071; Scott v. Bergen County Traction Co., 63 N. J. L. 407, 43 Atl. 1060; Bumbear v. United Traction Co., 198 Pa. 198, 47 Atl. 961; Muldoon v. Seattle City Ry. Co., 7 Wash. 528, 38 Am. St. Rep. 901, 35 Pac. 422, 22 L. R. A. 794. Nor is it per se negligence for a passenger to ride on the running-board of a crowded car: Brainard v. Nassau Electric R. Co., 44 App. Div. 613, 61 N. Y. Supp. 74; Sheeron v. Coney Island etc. Co., 78 App. Div. 476, 79 N. Y. Supp. 752; Anderson v. City etc. Ry. Co., 42 Or. 505, 71 Pac. 659. But if there is room inside the car, a passenger who stands on the platform or the running-board assumes the risk: Pike v.
Boston Elevated Ry. Co., 192 Mass. 426, 78 N. E. 497; Willmot v. Carrigan Consol. St. Ry. Co., 106 Mo. 535, 17 S. W. 490; Barlow v. Jersey City etc. Ry. Co., 67 N. J. L. 364, 51 Atl. 463; Vogler v. Central Crosstown R. Co., 83 App. Div. 101, 82 N. Y. Supp. 485; Moskowitz v. Brooklyn Heights R. Co., 89 App. Div. 425, 85 N. Y. Supp. 960; Kiefer v. Brooklyn Heights R. Co., 111 App. Div. 404, 97 N. Y. Supp. 841; Woodroffe v. Roxborough etc. Ry. Co., 201 Pa. 521, 88 Am. St. Rep. 827, 51 Atl. 324; Kirchner v. Oil City St. Ry. Co., 210 Pa. 45, 59 Atl. 270; Rice v. Philadelphia Rapid Transit Co., 214 Pa. 147, 112 Am. St. Rep. 738, 63 Atl. 419; McDade v. Philadelphia R. T. Co., 215 Pa. 105, 64 Atl. 327. So, also, if a passenger leaves his seat before the car stops and goes to the edge of the platform and is thrown off and injured by the sudden stopping of the car, he is guilty of contributory negligence: Jennings v. Union Traction Co., 206 Pa. 31, 55 Atl. 765; but if he does so upon request of the conductor, the company is liable: Druzepski v. People's St. Ry. Co., 30 Pa. Super. Ct. 380.
A passenger standing on the platform is required to exercise the increased care which the increased danger entails: Parks v. St. Louis etc. Ry. Co., 178 Mo. 108, 101 Am. St. Rep. 425, 77 S. W. 70; hence if he is struck by the handle of a brake which he could have avoided, the company is not liable: Brewer v. St. Louis Transit Co., 105 Mo. App. 503, 79 S. W. 1021; and if, while riding on the running-board, he is struck by a wagon-shaft which other passengers had avoided, he could not recover: Rosen v. Dry Dock etc. Ry. Co., 91 N. Y. Supp. 333. And to the same effect is Depew v. New York City Ry. Co., 112 App. Div. 260, 98 N. Y. Supp. 276. But if a passenger on the running-board is struck by a wagon near the track before he has time to get inside the car, he is not guilty of contributory negligence: Walsh v. Interurban S. Ry. Co., 98 N. Y. Supp. 656.
The fact that a passenger occupies a dangerous position does not alter his character as a passenger or the degree of care which the company must exercise toward him: Birmingham etc. Ry. Co. v. Bynum, 139 Ala. 389, 36 South. 736. And if the company assumes to carry a passenger on the steps of the car, it must carry him safely in that position, if it can be done by that high degree of care which the law requires of carriers toward their passengers: Parks v. St. Louis etc. Ry. Co., 178 Mo. 108, 101 Am. St. Rep. 425, 77 S. W. 70; and to same effect is Bumbear v. United Traction Co., 198 Pa. 198, 47 Atl. 961. If a passenger is allowed to ride on the bumper and his fare is collected, the company is liable for an injury to him caused by a car in the rear colliding with the car on which he is riding: Grieve v. North Jersey St. Ry. Co., 65 N. J. L. 409, 47 Atl. 427; but if he is warned of the danger by the conductor, and fails to heed the warning, he is guilty of contributory negligence: Nieboer v. Detroit Electric Ry. Co., 128 Mich. 486, 87 N. W. 626.
Where a passenger standing on the step of a crowded car fell off because he loosed his hold to pay his fare, he was guilty of contribuAm. St. Rep., Vol. 118-31
tory negligence: South Covington etc. Ry. Co. v. Physioc, 29 Ky. Law Rep 14, 92 S. W. 305.
VIII. Ejection of Passengers.
The right of those in charge of a street-car to expel obnoxious passengers is too well recognized to require further notice, but many instances occur over a dispute between the conductor and a passenger as to the validity of a transfer, the passenger being in no way disorderly or obnoxious to other passengers. We have already seen, while discussing another branch of this topic, the conflict of opinion among the courts regarding the rights to transportation of those holding defective transfers, where the mistake was made by the servants of the company. The same conflict, of course, exists with reference to the company's right to expel a passenger under like circumstances, for no orderly passenger who was entitled to be transported could lawfully be ejected. As the right to eject a passenger holding a transfer depends upon the question whether he is or is not a passenger, without the payment of additional fare, it will be well to refer to the cases heretofore cited in this note under the heading "Transfers to Connecting Lines," as being applicable to the point now under consideration. In Little Rock Traction & E. Co. v. Winn, 75 Ark. 529, 87 S. W. 1025, and Norton v. Consolidated Ry. Co., 79 Conn. 109, ante, p. 132, 63 Atl. 1087, it was held that the conductor was justified in ejecting a passenger for refusing to pay fare when the time on his transfer had been erroneously punched, provided the conductor acted under the rules of the company and had been guilty of no unnecessary rudeness. But, as we have heretofore seen, there are many jurisdictions holding that a passenger is not bound to examine a transfer to see if he is given the correct one, and that the relation of carrier and passenger continues until the point of destination on the connecting line is reached; and under these circumstances, of course, an expulsion would not be authorized.
IX. Proximate Cause of Injury.
The well-established rule in regard to injuries to the person that the wrong complained of must be the proximate cause of the injury applies with equal force to injuries received by passengers of street railroads, as the following instances will show:
A passenger was thrown from a street-car and killed by the premature starting of the car. He had heart disease and would have died at some indefinite time in the future. The fall from the car was held to be the proximate cause of his death: Guenther v. Metropolitan St. Ry. Co., 23 App. D. C. 493. And where a street-car passenger was injured at a railroad crossing in a collision between the street-car and the train, the negligence of the street-car conductor in signaling his car to start when he knew the train was approaching was the proximate cause of the injury, and the street railroad company was liable:
Chicago City Ry. Co. v. Shaw, 220 III. 532, 77 N. E. 139. The sudden starting of the car was the proximate cause of an injury to a passenger who was thrown on the track of another street-car, and was struck by it: Scamell v. St. Louis Transit Co., 102 Mo. App. 198, 76 S. W. 660. And when a passenger was thrown from a car between the feet of a mule hitched to a heavily loaded wagon, and was injured by the wagon being drawn over him, the proximate cause of the injury was being thrown from the car: Parker v. St. Louis Transit Co., 108 Mo. App. 465, 83 S. W. 1016. But negligently carrying a passenger beyond her destination was not the proximate cause of an injury she received from a fall while she was walking back to her original point of destination: Haley v. St. Louis Transit Co., 179 Mo. 30, 77 S. W. 731, 64 L. R. A. 295. And the failure of the conductor to stop the car when signaled was not the proximate cause of an injury to a passenger who was struck by a passing team because he leaned back trying to signal the conductor again to stop: Flynn v. Consol. Traction Co., 67 N. J. L. 546, 52 Atl. 369, and to same effect is Cleve v. Morgan etc. R. Co., 107 La. 370, 90 Am. St. Rep. 319, 31 South. 886.
Where a passenger's injury was caused by the collision of the car with a truck, because of the company's failure to restore a street in which its tracks were laid to its former good condition, the company was liable Freeland v. Brooklyn Heights R. Co., 43 Misc. Rep. 132, 8 N. Y. Supp. 264. But a fire in the car which caused the conductor to stop at a point in the street, where a passenger was injured by stepping into an unguarded excavation, was not the proximate cause of the injury: Goldberg v. Interurban St. Ry. Co., 90 N. Y. Supp. 347. The fact that a passenger was permitted to smoke in a car, contrary to the rules of the company, was not the proximate cause of an injury to a passenger from a panic in the car, caused by the smoker throwing a lighted match and igniting a lady's dress: Fanizzi v. New York etc. R. Co., 113 App. Div. 440, 99 N. Y. Supp. 281
FARRIGAN v. PEVEAR.
[193 Mass. 147, 78 N. E. 855.]
PUBLIC CHARITIES, What are.-A gift for the sole purpose of affording education and maintenance for destitute boys, without compensation, creates a valid public charity. (p. 484.)
PUBLIC CHARITIES, if Incorporated, are exempt from actions founded on the negligence of attendants or servants. (p. 485.)
PUBLIC CHARITIES, Nonliability of Trustees of Unincorporated. The trustees of an unincorporated public charity are not liable for injuries due to the negligence of attendants or servants in whose selection reasonable care was used. (p. 486.)
Tort for personal injuries sustained by the plaintiff when in the employ of the defendant, and alleged to be due to the putting him to work in an unsafe and dangerous place. It was claimed that the defendants knew, or in the exercise of reasonable care might have known, that the place was unsafe and dangerous. It appeared by the answer that the defendants were trustees of a public charitable institution, and as individuals had no interest in the premises where the plaintiff was injured. It was admitted by the plaintiff that there was no personal negligence by the defendants, or of any of them, and that if there was any negligence, it was that of the servants and agents of the defendants acting as such trustees. The judge ordered a verdict for the defendants, and the plaintiff alleged exceptions.
G. S. Taft, for the plaintiff.
G. A. Gaskill, for the defendants.
148 BRALEY, J. The Stetson Home, of which the defendants are trustees, was founded and is maintained under a trust created by gift for the sole purpose of affording an education and maintenance for destitute boys, and whatever advantages the institution offers are conferred without compensation. These distinctive features are ample to bring the home, even if unincorporated, within that class of benevolent institutions whose sole purpose is to furnish relief to destitute and deserving people, and therefore constitutes a valid public charity: Bartlett v. Nye, 4 Met. 149 378; Odell v. Odell, 10 Allen, 1; Jackson v. Phillips, 14 Allen, 539; Sherman v. Congregational Home Missionary Society, 176 Mass. 349, 57 N. E. 702; Minot v. Attorney General, 189 Mass. 176, 75 N. E. 149.