Great Falls & Old Dominion Railroad v. Hammerly

[200] then constructively in its care, when it not only failed to stop its car in response to their signal, but rushed that car by the station as fast as it could go ? We think not. Having impliedly invited prospective passengers to assemble upon its platform, and having given such prospective passengers reason to believe its cars would be stopped upon their signal, it was clearly its duty in passing such a point to take such reasonable precautions as would, in the circumstances, properly insure their protection. The rule applicable to express trains that stop at scheduled points only has no relation to an electric railway car that is supposed to stop at all stations if signaled. It might constitute contributory negligence for a prospective passenger to place himself so near the edge of the platform of a station at which an express train was not scheduled to stop, as to be affected by the passing of such train, while such passenger would be justified in assuming the same position for the purpose of signaling an approaching electric car that was expected to stop. In the present case the evidence is to the effect that the signal was given in ample time to have permitted the stopping of the car. The plaintiff was in a position of safety, had the ear either stopped or passed at a reasonable rate of speed. AVhen the ear was within 50 or 100 feet of her, she realized it would not stop because “it was running too fast.” It is urged that she was negligent in failing immediately to step back. Assuming that the car was going 50 miles an hour, and we think the jury would have been warranted in finding that to have been its speed, it was going 73-J- feet a second. Plaintiff fixed the distance of the car from her when she realized it would not stop at about 50 or 100 feet. It is apparent, therefore, that only about a second of time interposed between her realization that the car would not stop and the accident. To say that a woman weighing nearly 200 pounds, situated as she was, startled as she may have been,—indeed as she says she was,—• was guilty of contributory negligence because she permitted a second to elapse without getting out of the way, would be to usurp the functions of the jury. Clearly it was for them to [201] decide, as practical men, whether plaintiff’s conduct was not natural and reasonable. The second assignment of error is based upon the refusal of the court to permit an answer to the question whether it would be reasonable or likely that a person weighing 180 or 100 pounds, standing 3 or 4 feet from a car going at 30 or 40 miles an hour passing a station, would be whirled around and taken up by the gust of air. Plaintiff made no such contention, either in her declaration or in her proofs. As previously pointed out, her contention was that the excessive rate of speed of the car “so unsteadied her that she fell.” The difference between the contention and evidence of the plaintiff and the question propounded by the defendant is so apparent that we forbear further discussion of the question. The court had already permitted the defendant to introduce evidence tending to show the effect upon the plaintiff of the current of air from the car. The proposed question had no hearing upon any issue of the case, and was properly excluded. Finding no error in the record, the judgment is affirmed, with costs. Affirmed.