People's Passenger Railway Co. v. Green

Robinson, J., delivered the opinion of the Court. This is an action by the appellee to recover damages alleged to have been caused by the negligence of the appellant. On the day in question, the appellee was a passenger in the street car of the appellant, and after riding some distance he got up and gave his seat to an elderly woman. The car inside and the rear platform being crowded he was obliged to pass out on to the front platform.

In turning the corner of Henrietta and Charles streets, the car was run off the track, and at the request of the ⁹⁰ driver the appellee and others standing with him on the platform got off, and assisted in getting the car again on the track. When this was done, the passengers got on the front platform again by stepping over a guard or enclosure three feet high surrounding the same, and while the appellee was in the act of getting on the platform in the same manner, the driver without a signal or warning of any kind started the horses. The sudden jerk in starting, threw the appellee down on the side of the car. Holding on to the iron railing of the car he was dragged some distance, when the wheel ran over his foot crushing it badly.

The accident occurred in the day time, and there was proof tending to show that the driver might have seen the appellee in the act of boarding the car. Proof was also offered by the appellant, to show there, was a notice on the inside of the car requiring passengers to enter and leave the car by the rear platform. Upon these facts the Court instructed the jury: 1st. That although the plaintiff may not have used the care of a reasonable and prudent person in attempting to get on the car by the front platform, yet if the driver by using the ordinary prudence and care of drivers of such cars, might have seen the position of the plaintiff and might have avoided the injury, the plaintiff was entitled to recover. 2nd.

If the plaintiff attempted to enter the car by climbing over the front enclosure of the platform, and such act on his part contributed directly to the accident, then he is not entitled to recover, although the jury may find there was negligence on the part of the defendant. 3rd. If by one of the regulations of the defendant, intended for the safety of passengers, persons were prohibited from getting on or off at the front end of any car, and were required to enter and leave by the rear platform only, and that notice of such regulation was put up inside of the car in which the plaintiff was a passenger, and that ⁹¹ lie had notice of such regulation, and the plaintiff was injured in an attempt to enter the car by the front platform, the verdict must he for the defendant, and if the jury should further find that the plaintiff had ridden on the inside of said car, they may infer from that fact that he had notice of said regulation. The appellant, however, insists, that the attempt on the part of the appellee to enter the car hy the front platform was such a glaring act of negligence as to disentitle him to recover, and this too irrespective altogether of the question of care and prudence on the part of the appellant hy which it might have avoided the consequences of the appellee’s negligence. Cases may and do sometimes occur, in which the question of contributory negligence is one of law, to he decided by the Court upon the facts proved, or facts to be found hy the jury.

As for instance where the uncontradicted proof shows that the injury was occasioned hy the concurrent negligence of both parties, or where it was caused entirely hy the negligence of the plaintiff, or where the proof is so slight and inconclusive as not to justify a jury reasonably to find negligence on the part of the defendant. In this case, however, the Court was right, we think, in submitting the question of negligence to the jury. In the multitude of cases in which contributory negligence has been considered, there is, we must admit, some confusion and inconsistency in the terms and expressions used by Judges in the attempt to formulate rules defining the nature and character of negligence, hy which the respective rights and liabilities of parties are to he determined. In Lewis’ Case, 88 Md., 588 , we recognized and adopted the rule laid down by the Exchequer Chamber in Tuff vs. Warman, 94 E. C. L. Rep., 583, as furnishing the best and most satisfactory guide in cases of this kind.

The question affecting the plaintiff’s right to recover had been dealt with by the English Courts in several well consid ⁹² cred cases, beginning with Butterfield and Forrester, 11 Fast, 60, and ending with Tuff and Warman. In