in support of the motion to direct a verdict. It is enough to say that these were disputed questions of fact. It was further insisted before this court, and, no doubt, before the trial judge, also, that the plaintiff's story is intrinsically incredible, because a trolley car is so constructed that a passenger cannot be thus pushed from the step to the fender. But the plaintiff did not say, and it is not necessary to suppose, that she was pushed from the step to the fender without touching the ground. This also was a disputed or a disputable question of fact. The trial judge did not, of course, intend to take from the jury any disputed or disputable question of fact. In directing a verdict for the defendant he must therefore have assumed, for the purposes of that ruling, that the account of the matter given by the plaintiff and her daughter was the true one. The question presented to the trial judge by the motion to direct a verdict necessarily took this form: Assuming it to be true that the plaintiff was pushed, as she says that she was, from the platform to the step, and then from the step to the fender, is it clear that the defendant is without responsibility to her? If the case was not so one-sided as to exclude a reasonable doubt in favor of the plaintiff, it should have gone to the jury. It will now be well to state the legal considerations that must govern a case like this. A common carrier is bound to take a high degree of care of its passengers. This general duty includes a specific responsibility as to the entrances and exits provided for its vehicles. Judicial records show that these are places of some danger a danger that is aggravated by the willingness of the American public to sacrifice comfort to time, of which disposition common carriers take advantage. Shear. & R. Neg. (5th ed.) 523; Meesel v. Railroad Co., 8 Allen, 234 (1). No opinion is expressed as to whether, in strict right, the number of passengers should be limited to the number of seats. That question has not been raised in this case. If such a right exists, most Americans waive it. Practically, what a passenger is satisfied with is transportation, with a seat if one is to be had. As the case is presented, we must have regard, in defining the right of the plaintiff, to this habit of the traveling public. She got a seat herself, but she must be taken to have known the existing situation, and to have understood that on the evening of a national holiday, within the limits of a great city, there would probably be other passengers who would not get seats, whose presence might incommode her during her ride, and cause her at least some discomfort when she undertook to leave the car. 1. There is a note of Meesei v. Lynn & Boston R. R. Co., 8 Allen (90 Mass.) 234, in 9 Am. Neg. Cas. 446. On the other hand, the obligation of the defendant towards the plaintiff is affected by the same consideration. A common carrier is negligent if it fails to take a high degree of care to protect its passengers from every danger that the exercise of reasonable foresight would anticipate. Railway Co. v. Lee, 50 N. J. Law, 435, 438, 14 Atl. Rep. 883 (1); Traction Co. v. Thalheimer, 59 N. J. Law, 474, 475, 37 Atl. Rep. 132 (2); Whalen v. Traction Co., 61 N. J. Law, 606, 610, 611, 4 Am. Neg. Rep. 422, 40 Atl. Rep. 645, 41 L. R. A. 836; Lehr v. Railroad Co., 118 N. Y. 556, 23 N. E. Rep. 889 (3); Graham v. Railway Co., 149 N. Y. 336, 43 N. E. Rep. 917 (4). Common carriers habitually transport persons of every degree of bodily health and vigor, including the young and the aged and infirm, of both sexes. That exit from a crowded car is likely to be attended in the case of any passenger with some difficulty, and in the case of a feeble person with some risk of injury, is a matter of daily observation and familiar experience. Reasonable foresight should anticipate the possibility of such danger, and due caution should provide against it. The defendant was therefore bound specifically to use a high degree of care to protect the plaintiff not, indeed, from crowding, per se, but from danger likely to arise from crowding. Considerations of public policy strengthen this conclusion. If common carriers are to be allowed to cram their cars with passengers, to their own profit and the discomfort of the public, they should be held all the more to a strict and active responsibility to use due care to secure safe entrances and exits. Otherwise, the obligation of a plain duty will be weakened by embarrassments of their own creation. It is important to consider in every such case whether the danger to the passenger was one that the common carrier should have foreseen. The inconveniences and risks incident to the discharge of passengers from a crowded surface car are notorious. The history of every day illustrates them. The Court of Appeals of New York, in Lehr v. Railroad Co., 118 N. Y. 556, 23 N. E. Rep. 889, which was apparently a stronger case than this, thus expressed itself: "It clearly appears that the defendant undertook to carry more passengers than could sit and stand within the car, and that both platform and steps were filled to their utmost capacity. The action of persons so crowded together, and 1. City R'y Co. v. Lee, 50 N. J. L. 435. is reported in 9 Am. Neg. Cas. 562. 2. Consolidated Traction Co. V. Thalheimer, 59 N. J. L. 474, is reported in 9 Am. Neg. Cas. 566. 3. Lehr v. Steinway & H. P. R. Co., 118 N. Y. 556, is reported in 9 Am. Neg. Cas. 635. 4. Graham v. Manhattan R'y Co.,. 149 N. Y. 336, is reported in 9 Am. Neg. Cas. 648. the great force which they exercise, sometimes almost unconsciously, on each other, is understood by carriers of passengers and their employees; and the court would not have been justified in nonsuiting the plaintiff, and holding, as a matter of law, that the exercise of reasonable foresight would not lead the defendant to anticipate that overcrowding the car and its platforms might render accidents like the one which befell the plaintiff probable." (1) Common carriers are, from the exigencies of their business, peculiarly familiar with these difficulties and risks, and adopt regulations for dealing with them. The defendant seems to have had such a regulation. It was the custom that when a crowded car stopped at the junction both doors should be opened, so as to provide a double exit. The employees in charge of a trolley car are clothed with what has been called, not inappropriately, a "police power for the protection of passengers." The exercise of this power devolves in most cases upon the conductor. In this instance the motorman, by opening the front door and right-hand gate, and so inviting passengers to alight at his end of the car, became responsible for the good order of the persons who accepted that invitation, so far as a high degree of care on his part could secure it. He discharged the preliminary and the passive part of his duty. He opened the door and the gate, faced towards the door, and stood observing the passengers as they came out. There was some evidence, but not much, that the outgoing persons were pressing forward so as to exert considerable force. There was distinct evidence that acts of violent rudeness were committed towards the plaintiff by a person or persons who stood behind her on the platform, and who must have been in the immediate presence of the motorman, and probably within arm's length of him. The case is barren of proof that the motorman performed any active duty for the plaintiff's protection. Whether the case called for such activity, and whether, if it had been exerted, it might have been efficacious, are disputed or disputable questions of fact. It is worthy of remark, as bearing on the motorman's attentiveness to his surroundings, that though a woman, and she a passenger who had just left the car, lay prostrate and seriously injured on the fender long enough for two persons to come from the sidewalk and extricate her, yet he, standing all the 1. For actions relating to Persons Injured on Platforms of Trains and Street Cars, see vols. 9 and 10 Am. Neg. Cas., where the same are chronologically grouped from the earliest period to 1897, and arranged in alpha betical order of states. while on the front platform, knew nothing of this transaction until it was over. My conclusion is that there was evidence to go to the jury, not merely as to whether the plaintiff's account of her injury was accurate, but as to whether, if her account was accurate, the accident was such that it might have been prevented by the exercise of due care on the part of the defendant. If the jury could answer this latter question in the affirmative, they need look no further, for they might then infer negligence. In such a situation the burden shifts, and the common carrier, in order to exonerate himself, must show, if he can, that due care was exercised. Whalen v. Traction Co., 61 N. J. Law, 606, 609, 4 Am. Neg. Rep. 422, 40 Atl. Rep. 645, 41 L. R. A. 836; Laing v. Colder, 8 Pa. St. 482 (1); Caldwell v. Steamboat Co., 47 N. Y. 282 (2). The defendant relied upon the case of Ellinger v. Railroad Co., 153 Pa. St. 213, 25 Atl. Rep. 1132 (3). There the plaintiff, a woman, was alighting at Wilmington from a train of the defendant, and was thrown down and hurt by a man who, in rudely boarding the train, forced himself between her and the end of the step nearest to the body of the car. The court denied the plaintiff's right to recover, saying that it is no part of a common carrier's duty to protect its passengers against bad manners. It may be suggested that the true inquiry was whether the accident was one that could reasonably be anticipated. Of course, a common carrier is not censor morum; but if, under given circumstances, rudeness dangerous to personal safety is to be expected, it must be the duty of a common carrier to guard against it, not because it is unmannerly, but because it is likely to injure persons whom the carrier is bound to protect. A leading case is Putnam v. Railroad Co. (decided in 1873) 55 N. Y. 108 (4), and better known as the "Car-Hook Case." The action was brought to recover damages for the death of Avery D. Putnam, the plaintiff's intestate, who was fatally injured by William Foster. Both were passengers on a horse car of the defendant. The ground of action was the alleged failure of the employees in charge of the car.to exercise the police power with which they were invested for the protection of passengers. A judgment for the plaintiff was reversed upon the ground that the conductor had no reason to apprehend that Foster would commit a murderous assault. The case of Thomson v. Railway Co., 75 Hun, 548, 27 N. Y. Supp. 1. Laing v. Colder, 8 Pa. St. 482, is R. Co., 153 Pa. St. 213, is reported in reported in 10 Am. Neg. Cas. 144. 6 Am. Neg. Cas. 361. 2. There is a note of the Caldwell case in 9 Am. Neg. Cas. 586. 3. Ellinger v. Phila. Wil. & E. R. 4. See note of the Putnam case in 8 Am. Neg. Cas. 553. 608 (1), was this: The plaintiff, a woman, about the 1st of June, 1888, was a passenger on defendant's road. While seated in a car one of her feet was trodden on by a fellow passenger, drunk, but not boisterous, who stood nearly in front of her, holding on to a strap. About three years later the plaintiff alighted from a crowded train on defendant's road, in the early evening, at the City Hall Station, in New York City. She landed safely, and had taken a few steps on the station platform, when another person stepped on the same foot, and inflicted a second injury. She sued the company. At the trial her complaint was dismissed. On appeal to the General Term of the Second Department the judgment was affirmed on the ground that neither injury could have been reasonably anticipated, or by due care averted. In the case of Buck v. Railway Co. (Com. Pl.) 15 Daly, 48 (s. c. 2 N. Y. Supp. 718), the head-note is as follows: "Plaintiff, a passenger on defendant's elevated railroad, while attempting to get off the platform of a car at his station, was forced between the car platform and the station platform by others. boarding the train, and was injured. In an action therefor it did not appear that any precaution was taken by the guard upon such platform to prevent incoming passengers from interfering with. plaintiff in his effort to leave the train. Held, that the question of negligence in such particular should have been submitted to the jury, and a dismissal of the complaint was error." Accordingly the General Term reversed the judgment and ordered a new trial. At the second trial the plaintiff recovered a verdict, which was set aside by the General Term because the trial judge left it to the jury to say what precautions the defendant ought to have taken, instead of confining their attention to the precise issue. Id., 6 N. Y. Supp. 524. There was then a third trial, at which the defendant seems to have recovered a verdict, which was affirmed by the General Term, and by the Court of Appeals without an opinion. Id., 10 N. Y. Supp. 107; Id., 134 N. Y. 589, 31 N. E. Rep. 628. There was no crowd at the place of the accident. Only two passengers, including the plaintiff, alighted from the car, and only three persons boarded it. The various phases of this litigation are conveniently reported in 5 Am. Neg. Cas. 745-755 (2). Other cases are Lafflin v. Railroad Co., 106 N. Y. 136, 12 N. E. Rep. 599 (3); Hayman v. Railroad Co., 118 Pa. St. 508, 11 Atl. Rep. 815 (4); Graeff v. Railroad Co., I. Thomson v. Manhattan R'y Co., 75 Hun, 548, is reported in 5 Am. Neg. Cas. 577. 2. See the Buck case, reported in 5 Am. Neg. Cas. 745, 746, 751-755. 3. Lafflin v. Buffalo & S. W. R. Co, 106 N. Y. 136, is reported in 5 Am. Neg. Cas. 268. 4. Hayman v. Penn. R. Co., 118 Pa. St. 508, is reported in 6 Am. Neg. Cas. 303. |