Cincinnati, Lawrenceburg & Aurora Electric Street Railroad v. Lohe

Counsel for the railroad company requested the court to give the following charges to the jury. “I. If the jury should find, from the evidence, that William Lohe was standing; upon the platform of defendant’s car at the time when the car was derailed, and that he had been notified by the conductor to-go inside the car, and that there was room within the car where he might have been seated, and that said William Lohe failed or refused to comply with said request, but remained upon the platform, and that his death was due to the fact of his remaining in that position, your verdict should be for the defendant. “II. If the jury should find, from the evidence, that the defendant company had established a rule forbidding passengers to stand upon their platforms, and had posted notices of such rule upon the platforms of its cars, and that there was such a notice upon the platform of the car upon which Wm. Lohe was riding upon the fourth day of July, 1900, and that William Lohe was standing upon the platform at the time the car left the track, and that he had been requested to leave said platform and go inside the car, and that there was room for him within the car, and said William Lohe disregarded said notice and remained upon the platform, and if the jury further find that if he had gone into the ear and had not remained upon the platform he would not have been injured, then the verdict of the jury should be for the defendant in this action.” The court refused both of said charges, and proper exceptions were saved. After attempting to so clearly define proximate cause and con145 tributary negligence as to enable the jury to understand' the same, the,court charged the jury as follows: “Let us now apply these rules to the ease at bar. It is not denied that' the deceased, William Lohe, was standing on the rear platform of the car in question imme'diately before the car was derailed. It is not contradicted by the evidence that the deceased was warned or requested to go into the car, and that, as a matter of choice, ho preferred, to remain outside, on the platform; that the company’s employes did not further attempt to enforce the rule that -passengers should remain inside of the ear. The deceased rvas found dead, with a part of his foody underneath the car or the vestibule. How he got there, whether by falling, or jumping, or by being jolted off is disputed. “A passenger who is not coerced or induced by the railroad company or its employes to- stand upon a platform, or Avho stands upon the platform not' as a matter of necessity, but simply from choice, although it may be caused by the discomfort of a crowded car, assumes the risks and hazards rvhich ensue from that position. The deceased, therefore, assumed the risks and hazards incidental and usual to that position. Whether the company, through its employes, posted such Avamings upon the car or Avhether, prior to that time, the defendant company failed at 'all other times, or only occasionally, AAhether such rule was disregarded by passengers at other times, will be immaterial in this case, because of the actual notice given him by the employes. “The deceased, William Lohe, by his position, therefore', assumed the risk of being jolted off the platform by collision with teams,vehicles, or other obstructions upon the highway, or of being jolted off by the turning of sharp curves, or the sudden or quick stoppage of the car in case of emergency. The deceased did not, by the fact of standing upon the platform, assume the risk of a derailment or upsetting -of the car. The fact that he stood on the platform Avas a condition, and not a cause, of the derailment or upsetting of the car. Therefore, the mere act of standing upon the platform could not be a proximate cause of the injuries and death of the deceased. But whether by any other act alone, or connected with the act of standing upon the platform, was the proximate cause of the injuries and death of the deceased, is for you to determine.” The correctness of this charge, and of these requests depends to some extent upon the character to be assigned to the interurban railroad upon which the accident occurred. [146] The law of negligence, or rather of contributory negligence, of one riding upon a platform of a street railroad car, is not the same as of one riding upon the platform of a steam railroad car. The legislation in this state as to railroads and street railroads has been kept separate and distinct. Tor a full consideration of the subject, see Bridge Co. v. Iron Co., 59 Ohio St., 179. Interurban railroads, such as -the one in question in this case, are classed by the General Assembly 'as street railroads. Section 2780-17, Bates’ Revised Statutes. The construction and operation of such railroads is authorized by the act of May 17, 1894, 91 Ohio State Laws, 285, and carried into Bates’ Statutes as Sections ,‘5443-8 to 3443-13. Section six of that 'act is as follows: “Such companies shall be subject to the same regulations now provided for street railroads, in so for as the same are applicable, and shall have all the powers, in so far as they are applicable, that» other street railroad companies have.” It seems' reasonably clear that while operating the cars of an interurban railroad within a municipality, the regulations and powers of a street railroad company are applicable, but when it comes to running cars of such roads in the open country, upon a track substantially the same as the track of a steam railroad, and at a high rate of speed, it would seem that the same rules as to negligence, and contributory negligence, should prevail, as are applicable to steam railroads; and that a passenger standing upon the platform of an interurban ear in the open country, should be held to the same rules as if he were standing on the platform of a steam car. The danger is the same in either case, and where there is no difference in danger, there should be no difference in the care required, nor in the rights and liabilities flowing from the neglect to observe the proper care. Tor an injury received by a passenger on a steam railroad by reason of a collision or derailment while standing upon the platform, in violation of the known rules of the company, there being vacant' seats in the car, there can be no recovery against the railroad company. The authorities as to this seem to be uniform. Railroad v. Miles, 40 Ark., 298; Hickey v. Railroad Co., 14 All., (Mass.), 429; Railroad Co. v. Thomas, Admr., 79 Ky., 160; Railroad Co. v. Moneyhun, 146 Ind., 147; Palmer v. Railroad Col., 111 [147] N. Y., 488; Wills v. Railroad Co., 129 Mass., 351. There are cases in which a recovery has been allowed where the passenger rushed to the platform to escape some other clanger. Such was the case of Mitchell v. Southern Pacific R. R. Co., 87 Cal., 62, where an express messenger became alarmed at the rate of speed of the train while descending a steep grade, and fearing a derailment' he rushed to the platform intending to jump oil into the sand. It was held that he could not be held to any particular course of conduct while attempting to avert a present threatened danger. . In the ease at bar the deceased was ordered into the car by the. conductor and requested to go in by the assistant conductor, there were vacant seats inside, a sign was up "Passengers not allowed on the platform,” and yet he remained on the platform because he wanted to smoke a cigar. He remained there at his peril, and even though the company may have been negligent in not preventing the derailment, he was also negligent in standing upon the platform. Those inside the car escaped without injury, and if he had gone inside when ordered to do so, the presumption is that he too would have escaped. It is 'a ease where it required the negligence of both himself and the company to bring about the disaster; and where the injury is brought about by the combined negligence of both, both are without remedy. Coal Co. v. Estievepard, 53 Ohio St., 43, 57, and eases there cited. In view of the law as above stated, it is clear that the court of common pleas erred in the charge as given, and also in refusing to charge as requested; and that the circuit court erred in affirming the judgment.» There is another reason why there can be no recovery in this case upon the facts apparing; in this record. The action is for a violation of the contract of safe carriage. Such a contract has implied therein that the passenger will obey the reasonable rules of the carrier. The rule’against standing on the platform was a reasonable one, and this the deceased deliberately, persistently, and purposely violated, and that violation aided in causing the injury of which complaint is now made. Having himself first violated the contract, and that violation having brought about the injury, lie has no cause of action against the company for violating a con [148] tract by the terms of which he refused to be bound. As he, if alive, would have no cause of action, his administrator has none. It is urged that the action might have 'been in tort. This is true. He could sue either in tort or contract. He elected to sue upon the contract, and he is bound by his election. The controlling facts of the case seem to -be conceded, and the ease seems to be one that might well be dismissed by this court after reversing the judgments below, but it may be safer to remand the case to the court of common pleas for further proceedings according to law and this opinion, and it is so ordered. Judgments reversed, and cause remanded.