Walsh v. Interurban Street Railway Co.

The complaint was dismissed, at the close of the plaintiff’s case, upon testimony which disclosed that the plaintiff had placed himself upon the running board of the defendant’s open car, which had stopped to take on passengers, but that the car immediately started and, before he could leave the running board for a place of safety, he was brought in contact with the projecting footboard of a wagon standing in the street and was injured. It appeared that the wagon had been backed to the curb; that the foot-board was “ very close ” to the car, the exact distance not being shown, and that the car had moved only sixteen feet when the accident happened. '

*638Under these circumstances, negligence was inferable from the act of the defendant’s servant in starting the car when the passenger’s position must have been one of danger, and the plaintiff was not guilty of negligence in failing to anticipate the omission of reasonable care upon the part of the persons in control of the car. To board the car at all he had to place himself upon the running board, and he was not required to look for obstructions which would become dangerous to him only through the carrier’s neglect in the matter of giving him a reasonable opportunity to take passage in safety. He was not given this opportunity and the omission was the proximate cause of the accident, according to the favorable construction of the proof to which the appellant is entitled upon review of a judgment upon a nonsuit.

This is not a case in which the passenger had remained in a position of danger after a reasonable time for him to take a safe position had gone by, nor one in which the element of notice of his position to the carrier’s employees was lacking; and, in our view, there was sufficient proof to take the case to the jury.

The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Scott and Tbtjax, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.