Tewksbury v. Metropolitan Street Railway Co.

ELLISON, J. Plaintiff was an employee of the defendant as a conductor on one of its street railway cars. He was injured while in such service and brought-this action for damages. He recovered judgment, in the trial court. It appears that defendant’s street railway is operated by electricity and that what is called a trolley pole extending to the overhead wire, has a rope reaching from the end of the pole to the rear vestibule, where it is tied to the car. This rope would sometimes get loose or would hang so loosely that it would be blown by the wind around on the side of the vestibule and get in the way of incoming or outgoing passengers, and it was the duty of conductors to go to the door or opening in the vestibule and throw it around the end of the car so that it would hang in the rear. The electric wires were supported by iron poles on each side of the track, and the charge of negligence is, that at the point where plaintiff was hurt, these were placed too close to the track, so close that it was unsafe and dangerous for one to lean out from the car while in motion. The evidence showed that the distance of the iron pole from a passing car is seventeen or eighteen inches. It farther showed that while the car was running north on the east track, plaintiff observed that the rope had gotten around onto the east side of the vestibule, and he took hold of it, leaned out with his head and body [503] so as to be able to throw it around the end of the roof of the car to its proper position. While so engaged, being rapidly carried by the running car, his head and shoulder struck one of these upright iron poles with such force as to knock him from the car and inflict serious and permanent injury. The defense may be said to be two-fold; contributory negligence and assumption of risk. The evidence showed that plaintiff had been in defendant’s services as a conductor for nearly a year. He had, of course, seen the poles and observed their position, but it had not occurred to him that they were in dangerous proximity. He was endeavoring to throw the rope around the end of the car in the way all of the conductors on the line did it. “It was the way I had always done it, and the way I was instructed by the man that learned me.” The trial court was.right in concluding that'the questions of defendant’s negligence and plaintiff’s contributory negligence and assumption of risk, were for the determination of the jury. Neither appeared so clear and indisputable as to authorize a declaration as a matter of law. [Murphy v. Railroad Co., 115 Mo. 111; Young v. Oil Co., 185 Mo. 634; Lee v. Ry. Co., 195 Mo. 400.] The first of these cases is much like the one under consideration. There, an engineer got out of his cab onto the side of the tender and was attempting to tighten a nut so as to stop a leak. As the train passed over a road crossing he Struck the end of a cattle-guard fence and was knocked off. He knew the way the fences were built, but had not had his attention called to their danger. It was held that the question of negligence on the part of the railway company and contributory negligence and assumption of risk on the part of the engineer, were for the jury. The same view is taken in similar cases arising in the courts of other states. [Whipple v. Ry. Co., 19 R. I. 587; Ry. Co. v. Davis, 92 Ala. 300; Ry. Co. v. Man [504] sell, 138 Ala. 548; Nugent v. Ry. Co., 80 Me. 62; Kearns v. Ry. Co., 66 Iowa 599; Ry. Co. v. Russell, 91 Ill. 298; Ry. Co. v. Thompson, 210 Ill. 228.] There cases involve obstructions such as telegraph poles and the like so near the track as to cause injury to employees. They afford ample support to the ruling of the trial court. Criticism is made of plaintiff’s first and sixth instructions, but we think it not well founded. The first one does not assume things in issue; nor does the sixth. When the latter is read in connection with the seventh, it will be seen that the jury could not have been misinformed, misled or confused. And when all the instructions are considered, there is no room left for a supposition that the jury was not given a full understanding of the issues involved. The judgment is affirmed. All concur.