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CHUNN v. CITY AND SUBURBAN RAILWAY WASHINGTON.

decided: December 2, 1907.

CHUNN
v.
CITY AND SUBURBAN RAILWAY OF WASHINGTON.



ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

Author: Moody

[ 207 U.S. Page 304]

 MR. JUSTICE MOODY delivered the opinion of the court.

This is a writ of error to the Court of Appeals of the District of Columbia. The plaintiff in error brought an action to recover damages for personal injuries which she alleged were suffered by her through the negligence of the defendant in error, a corporation operating an electric street railway. The defendant pleaded in abatement that the plaintiff was, at the time of bringing action, an infant, under the age of twenty-one years. Issue was joined on the plea. Thereafter the defendant,

[ 207 U.S. Page 305]

     on motion and payment of the costs, was permitted to withdraw this plea and file a plea in bar. When the case came for trial at a later term the plaintiff tendered back the costs and moved the court to reconsider its order that the plea in abatement might be withdrawn and the plea in bar filed, and that the trial proceed upon the issue joined on the plea in abatement. To the refusal to grant these motions the plaintiff excepted. This exception requires no further consideration than that given to it in the court below, and is overruled.

The plaintiff then introduced testimony in support of her declaraction, and at the close of this testimony the judge presiding at the trial directed a verdict for the defendant. The plaintiff excepted to the order of the court and her exception was overruled by the Court of Appeals, and is now here for our consideration. The question is, whether there was evidence which, with the inferences reasonably to be drawn from it, tended to prove all the essential elements of the plaintiff's cause of action.

Without reciting all the testimony, which is set forth in full in the opinion of the Court of Appeals, the facts disclosed by it may be stated in narrative form. The plaintiff, a young woman, had lived and worked in Riverdale, Maryland, for about a year before the accident. During that time she had frequently travelled to Washington on the defendant's cars. It was the custom of persons who travelled from Riverdale to Washington on the defendant's railway to board the cars from what was called the platform near the station of the Baltimore and Ohio Railroad. At that point there are two tracks of the defendant running north and south.The distance between the inner rails of the two tracks was seven feet ten inches. The steps of the cars projected two feet two inches beyond the tracks, leaving, when two cars passed each other at this point, a clear space between them of three feet six inches, so that, as one of the plaintiff's witnesses said, "there was ample room to stand if you were thinking what you were doing." The platform extended thirty feet lengthwise along the tracks.

[ 207 U.S. Page 306]

     It consisted of boards laid on the ground and sleepers and parallel with the tracks. It covered the space between the tracks and the rails of the tracks and the width of two boards beyond the outside tracks. A road ran west of and near the tracks. West of the tracks there was "a kind of sink," and those boarding the cars for Washington from that said had "to stand out in the mud or in that hole to get on the car." The cars to Washington ran on the west and the cars from Washington ran on the east track. It was the custom of persons taking the Washington car to board it from the east side, standing on the platform between the tracks, and the doors of the cars were opened to receive them from that side; sometimes, however, such passengers entered from the west side. The purpose for which the platform was originally constructed was not shown, but it was used in the manner stated and for the passage of persons and vehicles. One standing on the platform at this point could see or be seen for a distance of at least a quarter of a mile north or south. On the evening of September 29, 1900, the plaintiff came to this place to take the car for Washington. The hour was not stated, but it was light enough to recognize a person a hundred yards away. The plaintiff testified that she remembered nothing from the time she left her house until she recovered consciousness in the hospital; but from other testimony it appears that as the car for Washington approached from the north she went to the platform and stood between the tracks. There were other persons intending to take the car, one of whom stood near her and also between the tracks. As the car for Washington came from the north another of defendant's cars came from the south. The Washington car slowed down and came to a stop just as the latter car, without stopping, ran by "at a rapid rate of speed," as one witness said, or "twleve to fifteen miles an hour," as another witness said. No one saw exactly what happened to the plaintiff, who was standing near the north end of the platform, but the sound of "a shock" was heard, and the plaintiff was found unconscious between the tracks, ten or fifteen

[ 207 U.S. Page 307]

     feet north of the north end of the platform. It may be inferred that she was struck by the rapidly passing car bound north, which did not come to a stop, as one witness said, for one or two hundred feet beyond the platform.

It upon these facts reasonable men might fairly reach the conclusion that the plaintiff, while herself in the exercise of due care, was injured by the negligence of the defendant, the case should have been submitted to the jury. Warner v. Balt. & Ohio Railroad, 168 U.S. 339. That the plaintiff was injured by being hit by the car running north does not admit of doubt. We need not delay at that point, but may proceed at once to the other aspects of the case. The plaintiff had come to a place where passengers had habitually boarded the defendant's cars. The defendant had encouraged and invited persons to enter its cars going south from the space between the tracks, by opening the doors and receiving them from that side. It was a place which, in itself, was perfectly safe, unless made otherwise by the manner in which the defendant used the east track for the passage of cars. The plaintiff, therefore, was not a trespasser nor a mere traveller upon the highway. It is not important to determine whether she had become a passenger. Intending to become a passenger she had come to a place recognized by the practice of the defendant as a convenient and suitable one from which to enter the car, and the car stopped to receive her. The defendant owed her an affirmative duty. It was bound to use that care for her protection, which was reasonably required in view of the situation in which she had at the defendant's invitation placed herself, of the purpose for which she was there, of the approach of the car which she was intending to enter, and of the ...


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