Washington Railway & Electric Co. v. Perry

Mr. Justice Robb delivered the opinion of the Court: It is apparent that, at the time of the trial, neither the parties nor the court entertained any doubt as to the issue; for the court at the outset of ,the charge said: “The negligence alleged in the declaration consists in the fact that, while he was a passenger on the car, certain other passengers were guilty of disorderly conduct in the course of the trip from Glen Echo to 9th & E streets; and that while engaged in this disorderly conduct one or more of them broke a glass on the rear of the car, which caused the injury to the plaintiff.” And such is the fair intendment of the averments of the declaration. Where, as here, it is apparent that the issue sought to be tendered in the declaration was understood and accepted by the defendant and a trial had thereon, every doubt will be resolved in favor of the declaration; since courts of justice are not disposed to permit a defendant, after having'had a fair trial, to obtain another by assuming a position inconsistent with that assumed before being defeated upon the merits. The most unfavorable view that can he taken of this declaration is that it states a cause of action defectively; but, even so, the defendant should have pointed out the defect before [97] trial. By joining issue and permitting tlie case to go to judgment, lie waived liis rights, if any. Baker v. Warner, 231 U. S. 588, 58 L. ed. 384, 34 Sup. Ct. Rep. 175, where the question is fully considered. It next is urged that the evidence was insufficient to support the verdict. It is the duty of the employees of a carrier of passengers to exercise great care and vigilance in preserving order, that one passenger may not be subjected to violence or insulf from other passengers; and the carrier is liable for injuries sustained by a passenger at the hands of fellow passengers where, through its agents on employees, it knows or has opportunity to know of the threatened injury, or might reasonably anticipate the happening of such an injury, and fails or neglects to take proper precautions or to use proper means to prevent it. New Jersey S. B. Co. v. Brockett, 121 U. S. 637, 30 L. ed. 1049, 7 Sup. Ct. Rep. 1039; Mullan v. Wisconsin Central Co. 46 Minn. 474, 49 N. W. 249; Flint v. Norwich & N. Y. Transp. Co. 34 Conn. 554, Fed. Cas. No. 4,873; 10 C. J. 900; 4 R. C. L. ¶ 606. The evidence warranted the jury in finding that half a dozen or more young men (for such they really were) boarded the car in question, and assumed a position on the rear platform, separated from passengers inside the car by windows; that these young men immediately commenced pushing and hauling one another about, jumping up and down so as to affect the entire car; that this.conduct- continued for the very considerable distance between Glen Echo and 9th street, where the accident occurred; that the glass was broken by these young men and that the injury resulted. IVe are of opinion that the conclusion reached by the jury not only was warranted, but irresistible; namely, that tlie result might reasonably have been anticipated hv the employees of the defendant, whose duty it was to protect other passengers on this car. It is common knowledge, that more or less difficulty normally is experienced by a standing passenger in maintaining his equilibrium on a car in motion. The experienced employees of the defendant were bound to know that, if these .young men were not re [98] strained, one of tlicm was liable to fall against or be pushed through this window. Exceptions -were taken to the refusal of the court to grant certain prayers. The court instructed the jury that “if the railroad company permitted passengers to be and remain upon the car, whose conduct was such as might reasonably lead to injury to other passengers, and there was injury resulting from the conduct of those passengers,” the company was liable; that if from the testimony the jury should find that the conduct of the boys on the rear platform “was such as would reasonably lead to the conclusion that some other passengers might be injured through their misconduct, and that the railroad company did not .stop any such misconduct as they were guilty of, and that, as a result of that misconduct on the part of these passengers on the back platform, this glass was broken and the plaintiff: was injured, then the railroad company was responsible.” The court was careful to caution the jury that, “if these passengers, the boys, as they are called, on the back pial form, broke the glass in getting off the car not in a disorderly manner, but as an accident not connected with any disorder on their part, the railroad company could .not be responsible for the injury to the plaintiff, although the boys might have been disorderly on other parts of the trip. In other words¿ the breaking of the glass must have been a part of the disorderly conduct, if you find it Avas disorderly, on the part of these boys.” At the request of the defendant the court further instructed the jury that they must find that the conduct of the passengers in question was such “as would put reasonable men on notice that they intended or contemplated the infliction of injury, or, unless restrained, would. inflict injury upon passengers; or that their conduct might reasonably result in such .injury to passengers.” We think this charge fully and fairly presented the issue to the wry. _ It is further suggested that the verdict Avas -excessiA'e. The court’s charge upon this point was in language submitted by the defendant, and, assuming that it Avould be within our province tq do so, we find no reason for disturbing the verdict. American Secur. & T. Co. v. Kaveney, 39 App. D. C. 223, 230. Judgment affirmed, Avith costs. _ A firmed.