Pittsburg & Connellsville Railroad v. Andrews

Miller, J., delivered the opinion of the Court. This action was brought by the appellee to recover damages for injuries received while being carried as a passenger over the appellant’s railroad on the 18th of Jul}r, 1872. He purchased a'ticket from McKeesport to Cumberland, and when injured was sitting in the second ³⁴² car from the engine. The train left Connellsville between ten and eleven o’clock at night, and when about a half a mile from that station, while going at less than half speed, struck a freight car which was left standing on a siding in a position so near to the switch, as not to permit the passage of the train without striking it.

The locomotive struck the end of the freight car, knocked it aside, and the train passed without any other collision, except a slight scratch to the sleeping car, which was about nine inches wider than the others. No one was hurt except the plaintiff, whose right arm was broken in several places and permanently injured. The car in which he was riding did not come in contact with the freight car, and it is admitted his arm at the time was out of the window. He was a man of mature years, and it is perfectly clear he would have received no injury if his arm had not been in this position.

As to how it came to be thus protruded, the testimony is conflicting, but it must have occurred either as stated by the plaintiff himself, or as stated by the witnesses for the defendant. The plaintiff testifies that he was sitting with his elbow inside of the car on the window-sill, and the jar pitched him forward, and in attempting to catch himself his arm went out of the window and was caught between the two cars ; that the window was up when he entered the car ; that he did not lie with his elbow out of the window or lay his head on his arm, was not asleep at the time, and does not recollect that the conductor came to him when taking up tickets, and cautioned him it was dangerous to lie in that manner, or pulled him out of the window. On the other hand, the testimony of the conductor and of a fellow passenger in the same car, is to the effect that a few minutes before the accident, when the conductor came through the car taking up tickets, the plaintiff was lying in his seat with his arm out of the window, and his head resting on his^arm, that the conductor took hold of him, ³⁴³ shook him and pulled him out of the window, and told him to take his head in as he would get it knocked off; that his elbow must from his position at the time of the accident have extended out over the window sill, and the jar was so slight that it could not have thrown his arm out of the window. The appellant insists the jury should have been instructed that if they found the accident occurred as stated by the witnesses for the defence, then there was such want of ordinary care and prudence on the part of the plaintiff, directly contributing to the injury, as to prevent a recovery, notwithstanding the negligence of the defendant, and several prayers were presented to that effect, which wore refused.

Whether such an instruction ought to have been given, is the main question in the case. The general rule is, that negligence is a question for the jury to decide upon all the facts and circumstances of each case, but while this is the general rule, cases may and sometimes do occur where the Court is required to declare some plain act of carelessness on the plaintiff’s part, to be in law, such contributing negligence as will prevent a recovery, or, on the other hand, where there is no proof of negligence on the part of the defendant, or where such proof is so slight and inconclusive in its nature, as to demand from the Court an instruction, as to its legal insufficiency to prove negligence, in order to prevent the jury from indulging in wild speculation or irrational conjecture. Shipley's Case, 31 Md., 370 . The power of the Court thus to interpose, has been uniformly asserted by the Appellate Court of this State, as well as by the Courts of England, and of our sister States, though instances calling for its exertion are comparatively rare.

We have sustained its exercise in the two recent cases of The Baltimore City Passenger Railway Co. vs. Wilkinson, 30 Md., 224 , and Lewis vs. The Baltimore & Ohio Railroad Co., 38 Md., 588 . ³⁴⁴ Among the numerous accidents that have occurred on Railways, there have been many cases identical or nearly so with the present, and the very question it is our duty now to determine, has arisen, and been decided by the Courts of last resort in other States. The first is that of the New Jersey Railroad Co. vs. Kennard, 9 Harris, 203, decided in 1853. In that case C. J. Gibson at nisi prius in his charge to the jury, said, “a carrier of either goods or passengers, is bound to provide a carriage or vehicle perfect in all its parts ; in default of which he becomes responsible for any loss or injury that may be suffered, provided it happen without negligence or misconduct on the part of the party injured. A carrier of passengers is bound to omit no precaution that may conduce to their safety.

He is bound to guard beforehand against every apparent danger that may beset them. The dangers incident to travelling in railway cars are few in comparison with those incident to other modes of travel; but'among the most prominent of them, is risk of injury to limbs stuck out of the windows, where the cars are not so constructed as to prevent it. Any one who has travelled by railway, must have observed that even the most careful passengers forget the risk, and unconsciously suffer their elbows to slip out beyond the window-sill. What can the carrier do to prevent this?

No more is required than a few metallic rods set in the window perpendicularly or horizontally, or a netting of wire work, or even wooden slats. None of these would materially impede the circulation of air or abridge the comfort of the passengers, while it would make their safety sure. A car without any of. ¡these appliances is, to coin a phrase, not roadworthy, and a carrier is responsible for any loss' that may happen from that cause alone. It is a notorious custom in railway cars, and it is proved to be so by the evidence in the cause, for passengers next to the windows, to rest their elbows on the sills of them ; and carriers are bound ³⁴⁵ to take notice of the customs and habitudes of railway passengers, and to provide for them.

If a passenger therefore sits and rides in a car as others generally do, and receives injury from an imperfect construction of it, the carrier is liable lor it.” He then told the jury he would leave it for them to say whether the resting of his arm on the window-sill with his elbow outside of it, was contributing negligence on the part of the plaintiff. That charge was affirmed by the Supreme Court in a short per curiam opinion, with the reservation that the language of the learned Judge seems to be too broad as a general principle, where he says that “ no car is good if the windows are not so constructed as to prevent passengers from putting thoir limbs through them ;” but in its application to a road which in some places is so narrow as to endanger projecting limbs as here, the instruction is proper. In Holbrook vs. The Utica & Schenectady Railroad Co., 12 New York Rep., 236, decided in 1855, the Judge at the trial was requested by the defendant’s counsel to charge the jury as matter of law, that if they found that the plaintiff’s arm or elbow was outside of the window of the car when the injury was received,, it was an act of negligence, and she could not recover, but he refused to charge on that subject further than he had already done. In the Court of Appeals, the opinion was delivered by Ruggles, J., who, on that, question, says; “In this refusal to charge as requested, I was at first inclined to think there was error, but my brethren are unanimously of opinion that the Judge had already charged the jury substantially in conformity with the request, and that he was right therefore in declining to repeat what he had before stated.

I yield to their judgment and concur in affirming the judgment.” From this it is clear the Court was unanimous in opinion that the law of the requested charge was correct. ³⁴⁶ Next in order of time is the case of Todd vs. Old Colony, & Fall River Railroad Co., 3 Allen, 18 , decided in 1861, in which the Supreme Court of Massachusetts reversed an instruction which left the question of negligence to the jury, and say: “If the plaintiff was riding in the car with his elbow or arm projecting out of the window, by reason of which he sustained an injury, he was guilty of a want of due care which would prevent him from maintaining his action. Looking at the mode in which railroads are constructed, with posts and barriers which are placed very near to the track on which the cars are to pass, the rapid rate at which trains move, the manner in which cars are made, with seats to accommodate passengers so as to avoid any exposure of the body or limbs to outward objects in passing, we can see no ground on which it can be contended that a person travelling on a railroad is exercising reasonable care in placing his arm in such a position that it protrudes from a window, and may come in contact with external obstructions ; certainly if it is a want of due care to attempt to leave a car when the train is in motion, although going at a slow rate of speed, as has been heretofore determined by this Court, it is no less a want of proper care to ride in a car with an arm or leg exposed to collision against passing trains, or the necessary structures on the side of the track. Nor was it the province of the jury to determine, as a matter of fact, whether the plaintiff' used due and reasonable care, if it was proved that his arm or a portion of it was outside of the window at the time of the accident. If there was no dispute or controversy about this fact, and the position of his arm was the cause of, or contributed to, the accident, the plaintiff failed to prove an essential element to the maintenance of his action.

In such a state of the evidence it was the duty of the Court to decide on its legal effect, and to say to the jury the plaintiff had failed to make out his case.’’ When ³⁴⁷ the same case again came before the Court in 7 Allen, 207 , the former decision was reaffirmed, and most emphatically as to the power and duty of the Court in such cases to pronounce upon the legal effect of admitted facts. Next is the case of The Pittsburg & Connellsville Railroad Co. vs. McClurg, 56 Penn. State Rep., 294, decided in 1867. The plaintiff in that case suffered his elbow to project from the window, and it was broken by coming in contact with a car standing on a switch.

At the trial the Judge, following the rule in Kennard’s case, instructed the jury that a passenger on a railway car who has unconsciously suffered his elbow to slip out beyond the window-sill, is not necessarily guilty of negligence, and submitted it to them as a question of fact whether under all the circumstances of the case, the plaintiff in permitting his arm or elbow so to project, was or was not guilty of negligence. This ruling being assigned for error, the Supreme Court carefully considered the question, Their opinion was delivered by C. J. Thompson, who says, “ we must regard the remark, ‘unconsciously suffered his elbow to slip beyond the window-sill,’ to mean inattentively. In that sense it was negligently suffered to slip. Of course this was negligence in se, unless he was under no obligation to take care of himself.

But no case asserts that, and every case the contrary. Out of the omission to do so springs the doctrine of contributory negligence, which defeats a plaintiff, and which is so firmly established as a principle of law, that nobody dreams of doubting it. We have then the case broadly, I think, that negligence is not to be inferred, when injury accrues from anrexposure of an elbow, or an arm, out of a car window, if it be not wilfully done. This cannot be maintained on any reasonable principle, we think.

When a passenger on a railroad purchases his ticket, it entitles him to a seat in the cars. In the seat ³⁴⁸ no part of his body is exposed to obstacles outside of the car. He is secure there ordinarily, from any contact with them, where he is thus provided with a seat, safe and secure in the absence of accident to the train, and the carrier has a safe and convenient car, well conducted, and skilfully managed, his duty is performed towards the passenger. . The duty of the . latter on entering, arises, namely, that he will conform to all the reasonable rules and regulations of the Company, for occupying, using, and leaving the cars, and after doing so, if injury befall him by the negligence of the carriers, they must answer; if he do not so conform, but is guilty of negligence therein, and is injured, although there may be negligence on the part of the carriers, he cannot recover.” Reference is then made to several authorities in support of this position, and among others to Penna.

Railroad Co. vs. Zebe & Wife, 9 Casey, 318, where it was held the Company’s liability could not be fixed for any injury consequent on a