Germantown Passenger Railway Co. v. Brophy

Chief Justice Mercur delivered the opinion of the Court, January 28th, 1884. The jury found on most ample evidence, that the plaintiff in error was guilty of negligence in the act which caused the injury. The company has two railway tracks separated by so narrow a space on a curve that when its cars were passing in different directions they came in collision, whereby, the defendant in error, a passenger in one of the cars, was injured. The main contention is whether he was guilty of contributory negligence in producing the injury to his arm. The evidence was conflicting as to his position at the time the collision occurred. The company claimed and gave some evidence that his arm projected out of the window. He testified that while the windows were open they stuck up about two inches, and he had his arm against the top of the window sash, and inside of both windows, and that the collision threw his arm out of the window. The learned judge charged that if he sat with his arm out of the window when the collision occurred, he was guilty of negligence and could not recover. Not satisfied with this the counsel for the company requested the Court to charge if the defendant in error placed his arm on the window-sill, and by a jolt of the car it was thrown out of the window and he was [41] injured, he was guilty of contributory negligence and could not recover. The Court refused to so chargo, but left it to the jury to find whether if ho was so riding, it was negligence on his part which contributed to the injury. The company has no just cause of complaint of this answer. It would have been clear error if the Court had instructed the jury that occupying such a position was negligence in law. 'Resting his arm on the window-sill wholly within the car created no legal presumption of negligence. If it constituted negligence, it was a fact to be found, by the jury, to whom it was submitted, and it was not to be so declared by the Court. In the absence of a collision with an external object his arm was in no danger of injury. He was under no legal obligation to assume or anticipate that the company would run another car against the one in which he was sitting. The window-sill in a railway car is substantially the top of the back of the scat. It calmot he declared negligence in law for a passenger to so rest, his arm, and the jury has found it is not negligence in fact. No assignment of error is sustained. Judgment affirmed.