Burt v. Douglas County Street Railway Co.

Lyon, C. J. The learned counsel for the defendant company made the point in his argument that the company had no notice or knowledge of the peril that a person passing from one car to another, in the manner the plaintiff attempted so to pass, might receive an electric shock. He argues therefrom that the company is not liable in this action. - We think the point is not well taken. The company was chargeable with notice that the electrical apparatus on its- cars was in a defective condition, for it appears that it had the means of readily ascertaining whether any electricity was escaping from the machine and works in the body of the car; and knowledge must be imputed to the company that if it escaped the iron handles of the platform were liable to become charged therewith. The only other question argued in the case is whether the evidence conclusively proves that the attempt of plaintiff to pass from one car to the other when the cars were in motion, in the manner he did, was negligence on his part which contributed directly to the injury of which he complains. Or, stated in another form, was it error for the trial court to submit the question of contributory negligence to the jury? The testimony tends to prove that the company had no rule prohibiting passengers from stepping from the platform of one car to the platform of the other when the cars were in motion, and had never given any caution against the practice; that before plaintiff was injured, passengers on those cars, among whom was the plaintiff, frequently did so without objection on the part [233] of the company; and that the car conductors constantly passed from one car to another, when the same were in motion, in the same manner. Morever, while it may reasonably be claimed that in thus passing from one car to another there was some peril of being thrown from and under the cars, there was no apparent reason to apprehend, and the plaintiff did not apprehend, the presence of any peril that by so doing he would come in contact with a current of electricity. Under these circumstances, we cannot say that contributory negligence on the part of plaintiff was conclusively proved. Hence it was not error to submit that question to the jury. See note to this case in 18 L. R. A. 479.— Rep. By the Court.— The judgment of the circuit court is affirmed.