Washington & Georgetown Railroad v. Grant

Mr. Chief Justice Alvey delivered the opinion of the Court: 1. As to the first of these supposed errors, we think there wras no sufficient ground for the assignment. It was a fact made quite clear by the testimony for the plaintiff that the car came to a full stop on the south side of G street, opposite the Riggs House; and though but a short distance from the [112] transfer station on the north side of that street, and not at the usual place of stopping, there must have been some existing cause for the stop. It was testified to as a fact, and conceded by the defendant’s prayer, that when the car did so stop, for any cause, opposite the Riggs House, passengers would get off and on the waiting train. This practice was, of course, known to the defendant, as it was proved by its own witnesses. It was the duty, therefore, of the employees on the train to keep a lookout and be on their guard in respect to passengers who might get off or on the train, when it had come to such stop before reaching the regular station. The plaintiff was observed’by the conductor to get up from his seat in the car, and come to the rear platform, where' the conductor was standing as the train approached G street. When the car drew up in front of the Riggs House, the plaintiff was standing beside the conductor, and ready to step down so soon as the car stopped. This was a fact tending to show knowledge on the part of the conductor, of the design and attempt of the plaintiff to get off the car; at least, it was a circumstance to be considered by the jury. Negligence is not required to be established by positive and direct evidence, but it may be inferred from circumstantial proof. And if the conductor was standing on the rear platform of the car when the plaintiff attempted to get off, or had knowledge of the attempt of the plaintiff to get off the car at that place, or had reasonable ground of belief that he intended or was in the act of getting off at that place before the car stopped, it was his duty to see to it that the plaintiff had reasonable time, with due diligence on his part, to get off in safety; that is to say, that there was no such negligence on the part of those in charge of the car as would tend to produce injury to the plaintiff while so getting off the car. It is a settled principle that if a passenger voluntarily alights from a street car in motion or when at a place or in a position where passengers are not intended or expected to get off the car, the passenger so getting off or on the car takes [113] the risk of injury by the sudden starting up of the car, and the employees who so start the car are not negligent, if they are ignorant that the passenger is so alighting from or getting on the car. Nichols v. Middlesex R. Co., 106 Mass. 463. But it is otherwise if such employees have knowledge, or reasonable ground to suppose, that the passenger is in the act of getting off the car at the time of so starting it up. If a street car stops to take on or let off’ passengers, or stops at a place where passengers may get off or on, though not a regular stopping place, those in charge of the car must wait a sufficient length of time to enable passengers attempting to get off or on, to alight or get on in safety, by the exercise of reasonable diligence; and must, in any event, see and know that no passenger is in the act of alighting, or is otherwise in position which would be rendered perilous by the motion of the car when again put in motion. If the employees fail in any of these respects and injuries result to the passengers from such failure, the company employer is liable. Birmingham Union R. Co. v. Smith, 90 Ala. 60; Poulin v. Broadway R. Co., 61 N Y. 620; Nichols v. Sixth Avenue R. Co., 38 N. Y. 131; Chicago City R. Co. v. Mumford, 97 Ill. 560; Werbowlisky v. Fort Wayne and Elmwood R. Co., 86 Mich. 236. We are of opinion that the court below was entirely right in refusing to instruct the jury that there was no evidence of negligence on the part of the defendant to be considered by the jury. There was evidence on the part of the plaintiff, and a conflict of evidence produced by the evidence on the part of the defendant, and that made it necessary that the question should be submitted to the jury. The question of the conflict of evidence could only be decided by the jury. Whether the question on the facts preponderated the one way or the other, was not a question for the court to decide, but exclusively for the jury. 2d. With respect to the second assignment of error, we have already stated the facts in evidence, and the instruc [114] tions thereon as matter of fact for the jury; and we think the court below was unquestionably right in refusing to instruct the jury, as matter of law, that if the plaintiff got off the car opposite the Riggs House without giving notice to ■the conductor of his intention to get off, or that the conductor was not aware of the fact of the plaintiff’s getting off at that place, the plaintiff could not recover. Such an instruction, in view of all the evidence in the cause, would have been misleading. Actual or express notice was not required to be given to the conductor, assuming the evidence to be true; and the question was not so much as to whether the conductor did in fact know that the plaintiff was getting off the car, but, if he did not know, whether he ought to have known the fact, under the circumstances of the case. This question as matter of fact was fully submitted to the jury; and upon its determination was made to depend the liability or exoneration of the defendant. If the jury found, as we must suppose they did, under the instruction given them, that the conductor had notice, or reasonable ground to suppose, that the plaintiff was about getting off the car at the place where the accident occurred, he was bound to see that reasonable time was allowed to enable the plaintiff to get off safely. This, under the evidence, was purely a question of fact for the jury. The cases are but few where the court can undertake to decide upon the evidence, as matter of law, that there is such contributory negligence as will preclude the plaintiff from recovery. As a general principle, it is only where the circumstances of the case are such that the standard and measure of duty are fixed and defined by law, and are the same under all circumstances; or where the facts are undisputed, and but one reasonable inference can be drawn from them, that the court can interpose and declare, as matter of law, that there is such contributory negligence as will defeat the action of the plaintiff. As a general proposition, a question of negligence is a question of fact, and [115] must be submitted to the jury; and that was very fully and fairly done in this case. 3d. The third and last assignment of error relates to the supposed variance between the allegations of the declaration and the proof; or, in other words, that the proof fails to support the allegations made in the declaration as to the place of stopping the car and the object of the plaintiff in getting off at that place. But we perceive no material variance; certainly none that could have misled the defendant, or operated to its surprise. The proof by the defendant’s witnesses showed that it was a habit or custom of the defendant to stop its cars south of G street, opposite the Riggs House, whenever the regular stopping place at the station north of G street happened to be occupied by a preceding train, or for any cause the train could not get to the station. That the plaintiff got off the car on the south side of G street, to go to the place of his employment, and not to obtain a transfer to another car, as alleged, would seem to be wholly immaterial, and produced no such variance as could be prejudicial to the defendant. Upon the whole evidence, the jury were very fully and fairly instructed, and the case was fully covered, and all the questions that could be fairly raised upon the evidence were presented and explained to the jury. Finding no error, the judgment must be affirmed; and it is so ordered. Judgment Affirmed.