Denver Tramway Co. v. Reid

Chief Justice Hayt delivered the opinion of the court. The plaintiff, William Reid, at the time of the accident, was a passenger on one of the street cars of The Denver Tramway Company. The train in which the plaintiff was riding consisted of two cars, both used for the carriage of passengers, the first ear being what is known as a “ motor car,” and the second a “trailer.” These cars were being propelled by electricity communicated by means of a trolley and wires overhead. The accident occurred between eight — 358 — and nine o’clock in the evening, there being at the time a large number of passengers upon the two cars. The only evidence for the plaintiff as to the accident was given by himself. His testimony in reference thereto is contradicted by several witnesses introduced on behalf of the company. Reid testifies that at the time of the accident he was upwards of sixty years of age, a blacksmith by trade; that he had taken passage upon one of the defendant’s trains and paid five cents, the usual fare therefor; that he desired to get off at Tenth street; that when he was some distance away he signaled the conductor to stop at the next street, this being Tenth street; that he was at the time sitting on the front seat of the rear car; that as the car approached Tenth street he was preparing to alight; that he arose in his seat and stepped down on the side step, the car at the time moving slowly; that as he was stepping down he was thrown between the cars by a sudden stop of the cars; that by the fall he was rendered unconscious, or at least at the time of the trial had no recollection of what occurred immediately after he fell. From other witnesses it was shown that the car was stopped within a few feet of the point where the accident occurred ; that Reid was found lying in the street with his foot in the life guard in front of the wheels of the trailer; that when. he was extricated he seemed to be in a dazed condition, which some of the witnesses attributed to inebriety. Dr. Hart, his physician, who was summoned soon after the accident, testifies that he found him suffering from severe bruises and burns; that both hands and both ankles were burned somewhat, his left hand and left ankle severely; that the left ankle was burned to the bone, and the bone covering torn to a considerable extent, and that he was bruised upon the back and elsewhere about the body. The theory of the plaintiff being that these burns were caused in some way by escaping electricity, that plaintiff’s body had come in contact with some part of the car that was charged with electricity, and that when his ankle struck the — 359 — ground the circuit was completed, experts were examined, whose evidence tends to show that the burns might have been caused in this way, although expert electricians were introduced by the defendant who testified that the burns could not have been caused in the manner claimed by plaintiff, or by electricity from the ear in any way. Some half dozen witnesses were introduced on behalf-of defendant, who contradicted his statements as to the manner in which the accident occurred. These witnesses testified that the plaintiff, not waiting for the car to stop, got up and stepped off in the middle of the street, the cars being required to stop only at the far side of intervening streets. The conductor testified that he was engaged in collecting fares at the time and saw no signal from Reid to stop, but that the car was being stopped for other passengers to alight. Among these witnesses was one J. P. Walker, who, at the time of the accident, was standing on the rear platform of the motor car facing the trail car, upon which plaintiff was riding. To overthrow the evidence of this witness, the plain-, tiff, in rebuttal, introduced one W. T. Us tick, who testified as follows: “ Q. Where do you reside ? A. 710 South Twelfth street. “ Q. What is your occupation at present? A. City detective. “ Q. What was your occupation about the 20th of July, 1890 ? A. City detective. “ Q. Has that been your business all the time from that time until the present? A. Yes, sir. “ Q. I will ask you if you know one Joseph P. Walker, who formerly kept a saloon at 1242 Larimer street ? A. Yes, sir. “ Q. How long have you known him? A. Pour years, or such a matter. “Q. You knew him at that particular date which I have given 3'ou? A. Yes, sir. “ Q. I will ask you if, on that date — on or about that date —did you know of any burglary having been committed in — 360 — the immediate neighborhood of Mr. Walker’s saloon? A. Yes, sir. “ Q. Did you have anything to do with the investigation of that ease. A. I did. “ Q. Now, I will ask you to state whether he was arrested. (Objected to). “ Counsel for plaintiff — All of these things may be proven to go to the credibility of the witness. (Objection overruled. Exception.) “ Q. State whether he was arrested for the offense. (Objected to as not the best evidence, and also because it is not competent, and is irrelevant. Objection overruled, to which ruling of the court the defendant, by its counsel, then and there duly excepted.) A. Mr. Walker was taken into custody at that time and taken to the City Hall, and was released there at the City Hall. “ Q. Will you state if you know whether any goods were taken from the house at the time it was burglarized, and if so, where these goods were found? “Counsel for defendant — If they are going to try Mr. Walker for the offense of burglary, I think he should be present. I don’t see the necessity of taking the time of the court with these collateral matters, and we object to it. “ Counsel for plaintiff — The object of this question is to prove that the goods burglarized were found on the premises of this man Walker. “The court — I think the witness ought to be here for the purpose of defending himself.” The evidence of this witness is so far outside of the limits of legitimate testimony as to remove all question of its admissibility beyond the realm of controversy. The witness Walker was afterwards recalled for cross-examination, and while upon the witness stand denied all connection with the burglary, and it is urged that this is an antidote to the poison of the testimony of the witness Ustick. It may well be doubted, however, if the antidote was-sufficient to counteract the virus. The introduction of the wit — 361 — ness Ustick for the purpose of testifying in reference to the alleged burglary and connecting the witness Walker therewith was a flagrant violatioh, not only of the rights of the defendant company, but of the privilege of the witness Walker as well. The obvious and only purpose of the evidence was to impeach the testimony of the previous witness. In view of the fact that the witness was interrogated solely in reference to this burglary, his introduction must be considered as a deliberate attempt to prejudice the jury against the defendant’s witness by a method condemned by the law. There could have been no other reason for this evidence, and, having introduced him for such purpose, counsel are not in a position to gravely urge ■ at this time that the evidence of Ustick did not have the effect intended, and which it was well calculated to have. The verdict is against the weight of evidence, and it is probable that the result was influenced by this improper testimony and the remarks of plaintiff’s counsel, and therefore the judgment must be reversed. We are also of opinion that the first instruction is erroneous. By it the jury are told, inter alia, that, “ The plaintiff getting up from his seat and preparing to get off of the ear before the car had fully come to a standstill, but was very slightly moving, was not contributory negligence on the part of the plaintiff, unless such getting up from his seat and otherwise preparing to get off the car and alighting therefrom was done in a careless or negligent manner, were the circumstances and surroundings considered. For, if such negligence —if there was any — on the part of the plaintiff was slight or the remote cause of the injury, he may recover, notwithstanding such slight negligence or remote cause.” 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 passenger and the carrier. — 362 — For this reason many of the decisions applicable to passengers on horse cars are inapplicable to the newer methods of transportation. The cable and electric service of to-day more nearly resembles the ordinary railway train, and the ease law which has grown up with reference to the latter is more in point. It has been held in a number of cases that a passenger upon a railway “has no right to attempt to alight from a train of cars when in motion, and if he undertakes to do so without the knowledge or direction of any employe of the company, it is at his peril.” Secor et al. v. T. P. & W. Ry. Co., 10 Fed. Rep. 15, and cases cited; 2 Wood’s Railway Law, secs. 305, 1126; Hutchinson on Carriers, sec. 643; Solomon v. The Manhattan Ry. Co., 103 N. Y. 438. In other jurisdictions it has been held that in case of injuries received by a passenger in alighting from a slowly moving train the question of plaintiff’s negligence is a question of fact for the jury to determine. And this seems to be the trend of recent authority, although this rule is subject to some exceptions. Beach on Contributory Negligence, sec. 147; Leslie v. The Wabash, etc., Ry. Co., 88 Mo. 50; Taylor v. The Missouri Pacific Ry. Co., 26 Mo. App. 336; Penn. R. Co. v. Lyons, 129 Pa. St. 113; Covington v. The Western, etc., R. R. Co., 81 Ga. 273. The latter view we think the better one as applied to passengers upon electric cars. In this case the plaintiff says that he was preparing to leave the train, by stepping down on the side step, when he was violently thrown to the ground. This being the preparation stated by the plaintiff, the jury must have believed from the instruction that they were not at liberty to hold him guilty of contributory negligence by reason of this act, unless performed in a careless or negligent manner.- The accident occurred between eight and nine o’clock at night. The plaintiff was at the time upwards of sixty years of age, and whether, in these circumstances, it was negligence on his part to thus step down on the moving car, was not a question of law for the court, but a question of fact for the jury. — 363 — Then, again, this instruction seems to recognize comparative degrees of negligence. It is misleading in this respect, if not positively erroneous. Outside of the states of Illinois, Georgia and Tennessee, and perhaps a few others, such comparison is not permitted; the test elsewhere being the plaintiff’s contributive negligence. And it may how be considered as well established, outside of the above jurisdictions, that in cases of this character the plaintiff cannot prevail if his own negligence contributed to the injury, and without which it would not have happened. Lord v. Pueblo Smelting & Refining Co., 12 Colo. 390; Beach on Contributory Negligence, sec. 34; O'Keefe v. The Chicago, R. I. & Pac. R. R. Co., 32 La. 467; Wells v. N. Y., etc., R. R. Co., 24 N. Y. 181; Wilds v. The Hudson, etc., R. R. Co., 24 N. Y. 430; Louisville, etc., Ry. Co. v. Shanks, 94 Ind. 598; Starry v. The Dubuque & S. W. R. Co., 51 Iowa, 419. For the reasons given, the judgment of the court of appeals will be reversed, with directions to reverse the judgment of the trial court. Reversed.