Harbison v. Metropolitan Railroad

Mr. Justice Shepard delivered the opinion of the Court r This is an action for damages for personal injuries, and the question on the appeal is, whether the court erred in directing a verdict for the defendant upon the close of the testimony on behalf of the plaintiff. By reason of its particular facts, the case is clearly distinguishable from that of Adams v. W. & G. R. Co., ante, p. — 66 — 26, the judgment in which was reversed because the case had been taken from the jury by a direction to find for the defendant. By analogy, we think it comes within the principle of Weaver v. B. & O. R. Co., 3 App. D. C. 436, and that the court did not err in the instruction to the jury. The facts shown by the evidence of the plaintiff are these : The defendant, the Metropolitan Railroad Company, has a double track, the inside rails of each of which are four feet apart. The charter of the company required the rails to be not less than four feet and not more than six feet apart, and to be located under the supervision of the municipal authorities. May 12, 1894, the plaintiff, James M. Harbison, accompanied by a girl eight years of age who was in his charge, took passage in a horse car going east, at F and Seventh streets. It was an open summer car, with benches running entirely across it, from side to side. The means of entrance was by a footboard running along each side of the car, from end to end. The width of this footboard was not given; but it was shown that it was seventeen inches from its outer edge to the nearest rail of the track on which the car ran. The plaintiff, after mounting the footboard, on the side next the other track, and whilst standing there, paid his and the child’s fare to the conductor, who was standing thereon also, and nearer the front platform. The conductor then moved to the front. The car was somewhat crowded, and there was but one vacant seat on the bench next him in which he seated the child. The conductor rang the bell for starting- after receiving the fares and before moving to the front. ' Plaintiff walked along the footboard towards the rear of the car, looking for a place to sit. Before reaching the end he was struck in the rear and thrown from the car. He did not see what struck him; but it is evident that he came in contact with a closed car on the adjacent track that was moving in the opposite direction. No attempt was — 67 — made to prove the width of this car. It is conceded, however, that it extended no further beyond the rail than the open car, if in fact so far. No passenger saw how the plaintiff was thrown from the car. There was no testimony whatever tending to show that there was any defect in the tracks which might have caused the cars to lurch and come closer together than usual, or in the cars themselves that might have the same effect. There was nothing peculiar in the construction of the cars and nothing protruding from the side of the closed car that added to the ordinary danger in passing. There was no evidence that either car was recklessly driven or at a speed that would cause it to lurch more than usual from side to side. The appellant contends that, to the facts as stated, the maxim res ipsa loquitur applies; that, being a passenger upon the car, a presumption of negligence arises from the happening of the accident, which the defendant is called on to rebut. Answering the same contention in Weaver v. B. & O. R. Co., 3 App. D. C. 436, 452, we said: “ The burden is always upon the plaintiff to make out his case. Where negligence furnishes the cause of action it must be proved by the party alleging it. There are some cases in which it has been said that the law presumes negligence on the part of the carrier from the mere happening of an accident to a passenger. This is not a strictly accurate statement of the law. The most that can properly be said is that when an injury occurs through some accident to the means of transportation which is under the management of the carrier’s employees, and which, if they exercise proper care, cannot ordinarily happen, it affords reasonable evidence, in the absence of explanation, from which negligence may be inferred. Transportation Co. v. Downer, 11 Wall. 129; Inland and Seaboard Coasting Co. v. Tolson, 139 U. S. 555; Railroad Co. v. State, use of Mahone, 63 Md. 135; Curtis v. Railroad Co., 18 N. Y. 543; Railroad Co. v. Gibson, 96 — 68 — Pa. St. 83; Railroad Co. v. Robinson, 73 Texas 277; Scott v. London Docks Co., 3 H. & C. 596; Railroad Co. v. Snashall, 3 App. D. C. 420, 432. In this case, there was no dei'ailroent of the car, no injury to it or the track, no accident of any kind affecting it, or that could have affected any passenger inside the cars. There is no legally established fact upon which to found the presumption or inference of negligence on the part of the defendant. The sole foundation for the inference of negligence exists in the fact that intestate was instantly killed by coming in contact with the post of a bridge which is not as wide as is now customary in the construction of new bridges.” Nor is there any foundation for the contention of appellee, that contributory negligence must be presumed from the fact that plaintiff remained on the footboard, in a place of danger, instead of at once entering the car. Adams v. W. & G. R. Co., supra. The length of time that the double tracks had been in operation does not appear; but the same summer cars had been in use for about a year and plaintiff had been in the habit of riding on them. There was no evidence that there had ever been a similar collision or accident. It cannot be said, as matter of law, that the tracks were too close together for ordinary safety. Having been located . according to the act of Congress, and subject to the approval of the authorities charged with the control of the streets and the regulation of their use, the presumption would lie, in the absence of proof to the contrary, that they were at a safe distance apart. Had the other car been an open summer car, like that on which the plaintiff stood, there would have been at least fourteen inches between their respective footboards as they passed each other, unless reduced by a defective track or unusual speed at the time. The width of the footboard is not given, but it was necessarily wide enough for a man to stand and walk upon, while — 69 — holding to the standards of the car and the hand rails thereon. As the other car was a closed one, the danger of collision was certainly not increased by the fact that no passenger could diminish the open space by standing outside of it. It must be borne in mind, too, that there was no proof whatever that there had been an increase in the width of cars since the construction of the tracks, or that either of the cars in question was of an extraordinary or unusual width as compared with those that had been customarily used. We'think the doctrine a reasonable one, and agree with the Court of Appeals of New York in saying in a case much like this: “The defendant was not bound to so construct its tracks that it would be impossible for a passenger to be struck by another car while he was standing on the outside of an open car.” Craighead v. B. C. R. Co., 123 N. Y. 391, 395. The true rule surely must be that whilst a passenger may ride on the platform, step or footboard of a car, with the express or implied consent of the carrier, without incurring the imputation of contributory negligence as matter of law, he thereby, however, assumes the increased risk that may result therefrom in the ordinary course of things when the car is properly driven or managed. If hurt during the period of this exposure, he must, in order to recover, show affirmatively that the accident was caused, in whole or in part, by some negligent act of the carrier. McAfee v. Huidekoper, ante, p. 36; Adams v. W. & G. R. Co., ante, p. 62; Stewart v. Railroad Co., 146 Mass. 605. That negligence may be presumed from the happening of the accident under the circumstances and in the manner referred to hereinabove, or it may be matter of reasonable inference by the jury from the facts and circumstances given in evidence. But conjecture is not sufficient. “ No inference of fact pr of law is reliably drawn from premises which are uncertain. Whenever circumstantial — 70 — evidence is relied upon to prove a fact, the circumstances must be proved and not themselves presumed.” United States v. Rose, 92 U. S. 281; Manning v. Insurance Co., 100 U. S. 693; Weaver v. B. & O. R. Co., 3 App. D. C. 436, 455. The points indicated above mark the essential difference between this case and that of Geitz v. M. C. R. Co., 72 Wis. 307, which has been greatly relied on by the appellant. In that case the question of negligence was left to the jury because there was evidence tending to show that the car on the adjacent track, which struck the plaintiff, was being driven at an unusually rapid rate of speed that caused it to lurch and sway from side to side much more than usual. It was properly left to the jury to ascertain whether this extraordinary speed and consequent swaying of the car beyond the ordinary limit had an appreciable effect in producing the accident. There was no such evidence in this case. Taking the evidence as a whole and giving the plaintiff the benefit of every legitimate inference that can he deduced from it, there is no foundation upon which a verdict in his favor could stand. The judgment must therefore be affirmed, with costs to the appellee. And it is so ordered. Affirmed. A motion for rehearing was made and overruled.