Opinion
March 9, 1910.
Norton, Penney Sears and Dana L. Spring, for the appellant.
John T. Ryan, for the respondent.
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event.
The action was brought to recover damages for personal injuries. The plaintiff was a motorman upon one of the defendant's cars, and ran the car into an oil tank wagon on the track ahead of him, breaking the vestibule of the car and injuring the plaintiff. It was a dark, rainy night. There was a glass window in front of the vestibule, and it was covered with rain drops. There was no curtain on the glass door between the body of the car and the vestibule, so that the light from the car came into the vestibule and interfered with the plaintiff's seeing ahead. He kept the window in front of the vestibule nearly closed, open only two and one-half or three inches, when he might have kept it open wide, and thus have had a better opportunity to see ahead. As it was, he could see out into the darkness ahead only a few feet from the car, not more than ten. It is claimed that the defendant was negligent in not having a curtain on the front door, and that the accident was caused thereby. I do not care to consider the questions raised as to this branch of the case, because I think plaintiff's right to recover was lost by his own contributory negligence. He knew the condition of things surrounding him, that the curtain was absent, that it was dark and rainy, and the light in the vestibule and the substantially closed window, with the rain drops upon it, prevented his seeing farther than ten feet ahead, and yet he left the window as it was and ran the car without the curtain so fast that he could not stop it and save a collision with the wagon after it came within his line of vision. He should have fixed a curtain or opened the vestibule window and thus secured a better vision ahead, or else he should have run his car so slowly as to have been able to avoid the collision.
It would be a mockery of justice to permit him to recover of the defendant for injuries which he brought upon himself, and which his own exercise of reasonable care would have avoided.
The judgment and order should be reversed and a new trial granted upon the ground of contributory negligence.
All concurred, except SPRING, J., not sitting.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.