Washington Railway & Electric Co. v. Kramer
Washington Railway & Electric Co. v. Kramer
Opinion of the Court
delivered the opinion of the Court:
Many times have we ruled that it is not contributory negligence per se for a passenger to ride upon the platform or running board of a street railway car when in so doing he is following a common practice acquiesced in by the railway company.
But the facts in the present case differ very materially from the facts in any case heretofore considered by this court. The plaintiff, according to his own testimony, was occupying a position of safety- Failing to attract the attention of the conductor or motorman, and therefore knowing that they would be in ignorance of what he was about to do, he descended to the running board of a car that, according to his evidence, was moving at the rate of 25 or 30 miles an hour. And when he did this the car was in the middle of the block at the end of which he expected it to be stopped. Notwithstanding that another passenger sounded the stopping bell, plaintiff passed the first stanchion and remained upon the running board. It is clear from the evidence that there was ample room for him inside the car, and yet he chose to remain where he was. There is no evidence that the motorman saw him, and, therefore, the sole question to be determined is whether it can be said that plaintiff was guilty of contributory negligence. We are constrained to answer this question in the affirmative. He must have known, as every person who rides on a street car is bound to know, that considerable vibration attends the running of a car at such a high rate
It follows that the first instruction requested by the defendant should have been given. The judgment, therefore, must be reversed, with costs, and the cause remanded for a new trial.
Reversed and remanded.
Reference
- Full Case Name
- WASHINGTON RAILWAY & ELECTRIC COMPANY v. KRAMER
- Status
- Published
- Syllabus
- Street Railroads; Negligence; Contributory Negligence. ' ■ 1. It is not contributory negligence per se for a passenger to ride upon tbe platform or running board of a street ear when in doing so be is following a common practice acquiesced in by the railway company (following Metropolitan R. Co. v. Bnashall, 3 App. D. C. 420; HarMson v. Metropolitan R. Co. 9 App. D. C. 60; Brown v. Washington & G. R. Co. 11 App. D. C. 37; Brightwood B. Co. v. Garter, 12 App. D. C. 155; Washington, A. & Mt. V. B. Oo. v. Chapman, 26 App. D. C. 472; Capital Traction Co. v. Brown, 29 App. D. C. 473) ; and while such a passenger assumes the additional risks incident to his more exposed position, when the car is being operated in the usual and customary manner, the company will be liable for any injuries which befall a passenger in such position as the result of its negligence, provided he was exercising due care at the time. (Citing Hart v. Capital Traction Co. 35 App. D. C. 502.) Nóte. — On tbe question of contributory negligence of passenger in riding or standing on running board or platform of street car, see notes in 2 L.R.A. (N.S.) 1191; 10 L.R.A.(N.S.) 352; 12 L.R.A. (N.S.) 831; 21 L.R.A. (N.S.) 972; and 49 L.R.A.(N.S.) 135. 2. In an action against a street railway company for injuries received by the plaintiff while a passenger on a car of the defendant, it is error for the trial court to refuse an instruction asked by the defendant and supported by the evidence, which is to the effect that if the plaintiff left his seat on the rear platform of the car, and stepped upon the running board, while the car was in motion and traveling at the rate of 25 miles an hour, he was guilty of contributory negligence, and that if he was riding on the platform under the conditions mentioned he assumed the additional risk incident to this exposed position, and if the jerk or jar of the car which occasioned his fall was only such a jerk or jar as was to be expected from the movement of a car traveling at that rate of speed, the plaintiff was guilty of contributory negligence and could not recover.