#### CHAPMAN *v.*CAPITAL TRACTION COMPANY.*

Street Railways; Negligence; Contributory Negligence; Evidence; Appeal and Ebbob; Objections and Exceptions; Trial; Instructions and Charge to Jury.

1. In an action against a street railway company by a passenger whose fingers were struck and injured by a trolley pole as she was pointing out of the open window of a ear, it is not error for the trial court to refuse to permit a witnes's for the plaintiff to testify that in resting her arm on the crossbars of the window she followed the usual habit of passengers on the car, especially where the witness had never traveled in a car of similar type before.

2. It is not negligence, as a matter of law, for an electric railway company, on placing in service wider cars than those theretofore in use, to fail to give direct notice or warning to passengers of the danger of *480contact with the trolley poles resulting from the increased width of the car.

.3. Refusal of the trial court to permit a witness for the plaintiff to testify as to how long a particular type of car had been in use on the defendant’s line is not prejudicial error, in an action against an electric railway company by a passenger whose fingers were struck and injured by a trolley pole as she pointed out of an open window, where it is an admitted fact that the car was a new one, of greater width than those formerly in use, but it was the first time the plaintiff had ridden in one of the new type of cars.

•4. Where the width of. the space between the defendant’s tracks at the place of the injury has been shown in such a personal injury action against an electric railway company, evidence offered on behalf of the plaintiff, that heyond the place of the injury the width between the tracks was the same, is irrelevant.

.5. On an appeal by the plaintiff from a judgment on verdict for the defendant on the issue of negligence in a personal injury action, error on the part of the trial court in the exclusion of evidence that the plaintiff was unable to pursue her avocation as the result of her injuries will not justify the reversal of the judgment.

-6. An assignment of error to the effect that the trial court erred in refusing each of several special instructions asked by the plaintiff, and in granting each of specified prayers asked by the defendant, violates rule 8 of this court, that errors assigned shall be separately and specifically stated. (Citing *District of Columbia*v. *Robinson,*14 App. D. C. 512; *Hartman*v. *Ruby,*16 App. D. C. 45; and *Clerks’ Invest. Co.*v. *Sydnor,*19 App. D. C. 89.)

7. A judgment will not be reversed for the refusal of the trial court to grant instructions asked by the unsuccessful party as to the degree of care required of the defendant, where the charge of the court to the jury clearly stated the degree of care required.

■8. In an action against an electric railway company by a passenger whose hand, which she had extended out of the open window of the car, was struck by a trolley pole, it is not error for the trial court to refuse an instruction asked by the plaintiff to the effect that the failure of the defendant to give notice to its passengers of the proximity of the pole was such negligence as to preclude contributory negligence-on the part of the plaintiff in so extending her hand outside of the car.

’9. It is not error for the trial court to refuse an instruction asked by the plaintiff in a personal injury action against an electric railway company, to the effect that the jury may take into consideration their own personal experience and observation of the common habit of *481passengers to rest their arms on the bases of windows, and, when the windows are open, to extend their arms slightly outside of the ear; especially where there is no evidence of any such habit or practice of passengers.

10. A judgment on verdict in a personal injury action will not be reversed on an appeal by the plaintiff because of the refusal of the trial court to grant an instruction asked by the plaintiff on the subject of the measure of damages, where the instruction was not different from the charge of the court on the subject.

11. In a personal injury action against an electric railway company by a passenger, it is not error for the trial court to grant an instruction asked by the defendant to the effect that no presumption of negligence on the defendant’s part arose from the mere happening of the accident, and that the burden of showing such negligence was on the plaintiff, where the injury to the plaintiff did not occur through any accident to the means of transportation, and where it does not appear that there are any facts relating to the cause of the injury which are peculiarly within the knowledge of the defendant that would justify the presumption of negligence. (Distinguishing *Weaver*v. *Baltimore & C. R. Co.*3 App. D. C. 436; *City & Suburban R. Co.*v. *Svedborg,*20 App. D. C. 543, and *Sullivan*v. *Capital Traction Co.*34 App. D. C. 357.

12. Where, in an action against an electric railway company by a passenger who was injured by a trolley pole striking her arm, which she had extended through the open window of the car, the trial court granted an instruction asked by the defendant, the general purpose of which was to submit the question of the plaintiff’s contributory negligence to the jury, the test given in the instruction being whether an ordinarily prudent person would under similar circumstances have done as she did, it was *held*that, in view of the language and purpose of the instruction, taken in connection with the court’s charge to the jury on the same subject, that an expression in the instruction to the effect that the presence of bars across the window was a warning to the plaintiff that it was dangerous for her to project any part of her body beyond the bars, did not have the effect of taking from the jury the question of fact as to whether such act on her part constituted negligence.

13. Where the charge of the trial court leaves a question to the jury to determine, the fact that, by a granted instruction, the court indicated its opinion on the subject, will not constitute error. (Following *Washington Gaslight Co.*v. *Poore,*3 App. D. C. 127; *Mooney*v. *United States,*30 App. D. C. 63.)

14. Where there- is objection to a part of an instruction asked, the objection to the instruction should not be general, but should point out *482the objectionable part of the instruction, so as to give the court an opportunity to modify the instruction accordingly. (Following *McDermott*v. Severe, 25 App. D. C. 276, s. c. 202 U. S. 600, 50 L. ed. 1162, 26 Sup. Ct. Rep. 709; and *W. T. Walker Furniture Co.*v. *Dyson,*32 App. D. C. 90, 19 L.R.A. (N.S.) 606.)

No. 2219.

Submitted October 11, 1911.

Decided November 6, 1911.

Hearing on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for personal injuries.

*Affirmed.*

The Court in the opinion stated the facts as follows:

This is an action begun in the supreme court of the District by Lillian M. Chapman against the Capital Traction Company, to recover damages for injuries sustained while a passenger on defendant’s car. The plaintiff’s evidence tended to show that on the afternoon of Sunday, July 18, 1909, she entered a car of defendant at New York avenue and 15th street to ride fir Chevy Chase. It was a large new car of the “pay as you enter” type. She took a seat next to the window, and put her left arm on the top one of the bars crossing the windows. It was comfortable to do so. The car ran on 14th, IT street, and Connecticut avenue. At Woodley lane plaintiff was looking out of the window, and. spoke to her companion of a house in the course of construction there. Her left arm was still on the top bar of the window. She pointed with her hand to the house, and her fingers were struck by a trolley pole. They were bent back fracturing the small bones of the wrist and the end of the radius. The injury was serious and its effects permanent. It was a clear, warm day and all windows were down. . The conductor and motorman were at their positions in the rear and front of the car, respectively, where their duties compel them to remain. The overhead wire began at Nock Creek bridge and was supported from poles set between the two tracks at intervals of about 100 feet. The pole, number 216, which struck *483plaintiff’s hand, is near Woodley road. Its outer edge is distant 4 feet lOf- inches from the center of the northbound track, on which the car was running, and 5 feet 1$ inches from the center of the southbound track. A rim on the pole, 6 feet from the ground, is 1| inches thick. Poles 214, 215, and 218 are a “little farther away” from the northbound track; pole 217 is exactly the same distance. The space between the tracks narrows from the “Zoo” to the curve, where they turn to cross the bridge. The width of the car from bar to bar was 8 feet 10f inches. Older cars of different type measured 7 feet til-inches in width, outside measurement. Two others were 8-feet 2 inches wide from handle bar to handle bar. Plaintiff and her companion, who was a witness for her, had previously ridden to Chevy Chase on the cars last above described, but had never been in one of the larger ears before. The windows of this car are crossed by four iron rods, one-half inch in diameter, fastened on the outside. The rods are parallel and about 3 inches apart, and the distance from the window sill to the top of the fourth rod is 14 inches, and 13| inches from the lower edge of the window sash, when opened. The distance from the top rod to the front of the car seat is 22 inches and to the back 23|- inches. The top bar came below the shoulder of the plaintiff, and she had to raise her elbow to rest her arm upon it. The distance between it and the rim of the trolley pole with which plaintiff’s fingers came in contact is between 4| and 5 inches. Plaintiff knew that there was an overhead trolley wire from the bridge outwards, supported by poles between the tracks. There was no printed or written notice of danger from the proximity of the poles, and no one of defendant’s employees called attention to such danger. Defendant’s evidence tended to show that the new cars were of the' ordinary type in use upon suburban roads. That the details; of construction were considered with care after the examination of cars on other lines; and after consideration by car builders, the rods were adopted as the best method of protecting the-car windows. The windows could have been closed with glass or with a fine screen, but that would have rendered the- ca,rs *484less comfortable. the height of the protection is governed by the natural position of a passenger’s arm in sitting so that it would come well above the sill, and the hand could not be thrown out of the car without striking an obstruction. “The distance between the window guards is governed as being the distance through which the hand cannot be placed without touching the bars, and making the passenger aware that the bar is there; the idea being as soon as the bar is brought to the attention of the passenger, that it is, in itself, a warning to the passenger that the hands or heads or anything else should not be placed outside the window.” The top bar is not so high that the hand could not be put outside the window, but so that it cannot be put out without touching the bar and making the person aware that it is there. In selecting this method of protection, the defendant’s officers were aware that it would come within or 5 inches of the trolley pole. That the trolley poles between the bridge and the Zoo are substantially the same distance from the car; they vary probably an inch or an inch and a half, due to poles being a little out of plumb. On cross-examination the witness, who was the chief engineer of defendant, said the bars were put up as a protection and a warning. This size and type of bar were considered as giving the best protection and at the same time the most comfortable and pleasant riding convenience to passengers. It would be impossible for one to stick an arm or hand out of the window, without raising it up and striking one of the bars. Witness had tried seating himself and putting his arm on the bar. They do not prevent the hand going through, but it is impossible to put it through without touching a bar. The cars on the Great Falls line and some others use screens in the windows, hut these are exceptions. The court refused all instructions requested by the plaintiff and gave some requested by the defendant. No exception was taken to the court’s own charge which submitted it to the jury to find whether the defendant had been guilty of negligence, and if so whether the injury had been contributed to by the negligence of the plaintiff. The jury found for the defendant, and from the judgment thereon, plaintiff has prosecuted this appeal.

*485*Mr. Lorenzo A. Bailey*for the appellant.

*Mr. R. Ross Perry*and *Mr. R. Ross*Perry, *Jr.,*for the appellee.

*

*Carriers*— *Contributory*Negligence.—Upon the question of the negligence of a passenger inside of street car, in exposing part of his body beyond side of car, see note to *Georgetown & T. R. Co.*v. *Smith,*5 L.R.A. (N.S.) 274; as to measure of diligence required toward passenger on street, railway, see note to *Omaha Street R. Co.*v. *Boesen,*4 L.R.A. (N.S.) 122.

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The first assignment of error is on an exception taken to the court’s refusal of an answer to the following question propounded by the plaintiff to one of her witnesses: “Referring to this attitude which she (plaintiff) took, resting her arm on the bar, was it anything unusual or unlike the common habit of passengers on that'car?” The question is leading in form,, but the record does not show that this was made a ground of objection. Had it been, the question might have been withdrawn and put in proper form. Probably, evidence of a habit or practice of passengers in respect of a thing that may produce, or concur in producing, an injury, that is so common and continued as to warrant an inference of knowledge thereof by. the carrier, may sometimes be relevant to the issue of negligence. But the case here presented does not require a consideration of that question.

In the first place, the witness was not qualified to testify to any such habit of passengers in that or similar cases, because it appeared that it was the first time that he had traveled in such a car. Had he shown his competency, however, the evidence offered would not be relevant. It seems quite clear from all the circumstances in evidence that had plaintiff’s arm and hand remained in rest upon the bar, the injury would not have been sustained. There was no disturbance of the car causing the hand to protrude. It was its voluntary extrusion by plaintiff pointing out the house to her companion, that caused it to-come in contact with the pole. There was therefore no error in excluding the evidence.

2. The second assignment of error is on exception taken to the refusal of the court to permit the same witness to answer *486the following question: “How long, to your knowledge, had this 'pay within’ car been in use on that line?” At the same time counsel announced that it was his intention to show that the car had been in use but a short time, and that the cars formerly used were of a different type and less wide, and that the increased width brought the window nearer the pole, increasing the danger, without notice having been given of such increased danger. The admitted evidence showed that this car had not been long in use, and was considerably wider than the former cars, as well as that this was the first time plaintiff or witness had been in the new and wider ear. It was also shown that no employee of the company had given notice of increased danger, and that there was no printed sign in the car giving such notice. It also showed that instead of giving direct notice, the defendant had erected the bars to guard the windows of the car. It is the contention of the appellant that it was the legal duty of the defendant to give some direct notice of the increased danger of contact with the poles through the use of the wider cars; and on the soundness of this contention, the competency of the offered evidence is founded. That the contention is not well founded is quite clear. It was not negligence as a matter of law, to fail to give direct notice or warning of danger from the increased width of the ears. Whether the defendant sufficiently discharged its duty to exercise the highest degree of care for the safety of passengers, in the manner in which it undertook to bar the windows, was a question of fact for the jury, which the court properly submitted to their ■determination. But were the plaintiff’s contention sound, no prejudice could have resulted from the exclusion of the evidence. Plaintiff had been in the habit of riding to Chevy Chase in the former and narrower cars, and was familiar with them. The new cars had been so recently introduced that this was the first time she had entered one. The duty to give direct notice and warning of the increase of danger, if it existed, would not have been increased by proof of the particular date of the substitution of the new car. The question involved was whether, under all the circumstances, the duty of the defendant to its *487passengers in that car had been sufficiently performed by the erection of the bars across the windows.

3. the third assignment of error relates also to the exclusion of evidence. Having testified that the space between the tracks narrows between the Zoo and the bridge, the witness was asked whether from the Zoo to Chevy Chase lake the space between the tracks was of the same width. the court, on objection, refused to permit the witness to answer. Plaintiff bad been permitted to introduce evidence of the location of the tracks from the Zoo to the bridge, between which places the accident happened, and of the poles adjacent to the one which inflicted the injury. We fail to perceive the relevancy of the additional evidence.

4. the fourth error is assigned on exceptions taken to the exclusion of certain evidence offered by the plaintiff, to the effect that the plaintiff was a skilled musician, and a “painter of pictures,” and that, by reason of the injury, she is unable to play the violin or piano, or to paint. the court excluded the evidence on the objection made that the damage is a special one that was not pleaded. As the jury found against the plaintiff on the issue of negligence, it is unnecessary to consider whether the objection was well taken. If there was error in the exclusion of the evidence, it would not warrant the reversal of the judgment.

5. the fifth assignment of error embraces nine several exceptions taken to special instructions given and refused. the error is thus assigned: “In refusing each of the 1st, 2d, 3d, 4th, 5th and 6th instructions prayed by the plaintiff, and in granting each of the 2d and 4th instructions prayed by the defendant, (9th to 17th exceptions inclusive, Rec. 17 to 21, 24).” Eule 8 of this court, promulgated at the time of its organization in the year 1893, requires that the errors assigned shall be “separately and specifically stated.” the manner of stating the error is in violation of this rule, the necessity of compliance with which has often been declared. *District of Columbia*v. *Robinson,*14 App. D. C. 512-539; *Hartman*v. *488*Ruby,*16 App. D. C. 45-59; *Clerks’ Invest Co.*v. Sydnor, 19 App. D. C. 89-95.

By reason of special circumstances, however, we will, in exercise of the discretion reserved to the court by the rule, proceed to consider several alleged errors in the action on the special instructions. These are set out on the brief and were discussed on the argument. (1) Without reciting plaintiff’s special instructions 1 and 2, that were refused, it is sufficient to say that they relate to the degree of care required of a carrier of passengers applicable to the conditions shown. As the charge of the court correctly stated the degree of care required, it was not error to refuse additional instructions relating thereto. Instruction No. 3, after reciting the particular facts relating to the width of the former cars and the increased danger of contact with the trolley-poles occasioned by the use of the wider car, substantially charged the jury that the failure of notice of such increased danger constituted negligence. The error of this contention has been pointed out in the consideration of the second assignment.

(2) There was no error in refusing special instruction No. 4, which related to the question of plaintiff’s contributory negligence. So far as it correctly stated the law, it is embodied in the court’s charge. As a whole, it was objectionable because it contained a further instruction to the effect that failure to give notice of the proximity of the pole was such negligence on the part of the defendant as to preclude contributory negligence on the part of plaintiff in extending her hand outside the car. (3) Instruction 5 was to the effect that the jury could take into consideration their own personal experience and observation of the common habits of passengers to rest their arms on the bases of the windows, and when the windows are open to extend their arms slightly outside the cars; and coupled with it the instruction that failure to give notice of danger incurred by the practice was negligence justifying a verdict for the plaintiff. If for no other reason, the instruction was properly refused, because there was no evidence of any such habit or practice of passengers. Moreover, it embodied the erroneous *489proposition as to the necessity of express notice of the probable danger. (4) There was no error in refusing special instruction No. 6, relating to the measure of damages. It is not different from the charge given in relation thereto, and it is unimportant by reason of the verdict for the defendant on the issue of negligence. (5) The second special instruction, given to the jury on behalf of the defendant was to the effect that no presumption of negligence on the part of defendant arose from the mere happening of the accident, and that the burden was upon the plaintiff to show that she was injured through the negligence of the defendant. There was no error in this instruction. Where an injury occurs to a passenger through some accident to the means of transportation, which with the exercise of ordinary care by the carrier’s employees would not ordinarily happen, it affords reasonable evidence from which negligence may be inferred, unless explained. *Weaver*v. *Baltimore & O. R. Co.*3 App. D. C. 436-452; *Mobile J. & K. C. R. Co.*v. Turnipseed, 219 U. S. 35-43, 55 L. ed. 78-80, 32 L.R.A.(N.S.) 226, 31 Sup. Ct. Rep. 136. It has been held that the same inference arises in case of an accident happening to a passenger in getting on or off a car while under the control of a carrier, and which, in the usual and ordinary course of things, would not happen with proper care. *City & Suburban R. Co.*v. *Svedborg,*20 App. D. C. 543-549. In a recent case it was said that “while the burden is always upon the plaintiff to establish his right to recover by the preponderance of the evidence, in cases where the causes of the accident are peculiarly within the knowledge of the defendant, proof of the happening of the accident establishes a prima facie case, which calls for rebuttal and explanation on the part of the defendant.” *Sullivan*v. *Capital Traction Co.*34 App. D. C. 358-371. In the case at bar, there was no injury to the means of transportation, and no facts relating to the cause of the accident that were peculiarly within the knowledge of the defendant, that would justify the presumption of negligence, and the jury were properly so informed. (6) It is argued that error was com*490anitted in giving the following special instruction requested by the defendant:

“If the jury shall find from the evidence that, at the time and place in question, the plaintiff was a passenger on the car •of the defendant company and was seated immediately adjacent to a window in said car, and that the opening of the said window was guarded by four iron bars, each of the diameter ■of about one half an inch, which bars extended across the said openings above the sill of the said window, parallel to each other and at a distance of 3 inches from each other, the lowest one of which was at a distance of 3-Jr inches from said sill, and the remaining three of which were distant successively 3 inches from each other, then the jury are instructed that the presence of the said bars in the said place was a warning to the plaintiff that it was dangerous for her to project any part of her body beyond the said bars; and if the jury shall find further from the evidence that the plaintiff at the time and place in question was seated immediately in front of one of the said windows, and rested her arm upon the topmost of said bars, and projected her hand to the extent of about I-J- inches beyond the ■said top bar, and was thereupon injured by having her hand so projected strike against a trolley pole of the company situated at the distance of I-J inches from said top bar, and maintained there for the purpose of the operation of the said road; and if the jury shall further find from the evidence that an ordinarily prudent person in the then position of the plaintiff and under, the surrounding circumstances would not have so projected her said hand, then their verdict should be for the defendant.”

The special error in this instruction is alleged to consist in the words that “the presence of the said bars in the said place was a warning to the plaintiff that it was dangerous for her to project any part of her body beyond the said bars.” In considering this instruction it is to be remembered that evidence had been introduced, without objection, to the effect that the window bars had been erected as a protection and a warning to passengers not to protrude any portion of their bodies out*491side the car. Some courts of high authority have said that whatever other purpose such window rods might subserve, if .any, they were calculated to warn the passenger to keep his person inside the car. *Interurban R. & Terminal Co.*v. *Hancock,*75 Ohio St. 88-113, 6 L.RA.(N.S.) 997, 116 Am. St. Rep. 710, 78 N. E. 964, 8 A. & E. Ann. Cas. 1036. See also *Harding*v. *Philadelphia Rapid Transit Co.*217 Pa. 69, 70, 10 L.R.A.(N.S.) 352, 66 Atl. 151. Windows in cars are necessary to the comfort of passengers, and persons no doubt often pro- ■ trade their persons from the same. Due regard to the comfort .and safety of passengers on roads where poles or obstructions exist near the cars suggests the importance of protecting the windows so that the comfort may be enjoyed with reasonable safety. While it would seem that window rods of the kind in this ease would ordinarily serve no other good purpose than that of pre-venting the extrusion of the head or body of a passenger, and therefore contain a notice or warning of probable danger in the extension of an arm or hand through the openings between or above the same, yet whether this be the fact is, in our opinion, a question for the determination of the jury, and not the ■court, in finding whether there was negligence on the part of either carrier or passenger. Assuming that a direct instruction to the jury that the existence of the bars was necessarily notice .and warning to the plaintiff would be error, we do not find that the words quoted took the question of fact from the jury. The •general purpose of the instruction was to submit the question of contributory negligence to the jury, and the test given was whether ordinarily prudent persons, under similar circumstances, would have done what she did. That the court did not regard the words as having the significance attributed to them by the plaintiff is apparent from the language of the charge. After defining the degree of care required of passenger carriers, the jury were told, in considering the question of defendant’s negligence, to consider the proximity of the pole.and the character of the window bars, and to determine from all the evidence whether the carrier’s duty had fieen discharged as a matter of fact. On the *492issue of contributory negligence, the court fully and fairly submitted the issue in the following language:

> “In determining whether she was negligent, you would have to take into consideration not only what she knew from past experience as a traveler over this road with respect to the presence and proximity of poles, but you would have to take into consideration every other physical condition that was patent to her observation. In other words, you have to consider not only what she actually knew, but what she ought to have known from what she saw with her eyes, and what she felt with her hands and arms. Therefore you have to consider what a reasonable person should have understood the significance of the bars at the window to be,—whether or not a reasonable person should have understood the significance of those bars to be that there was danger of contact with obstructions outside of the bars, or whether a reasonable person would not have been called upon, by the presence of the bars, to believe that that was the significance which the company intended them to carry to the passengers who sat at the windows. The court cannot say as a matter of law that, although the plaintiff confessedly knew there were poles along the line of the right of way, that there could be no justification which would warrant her for a moment in forgetting that the pole was likely to be there. That is a matter of fact that you will have to consider as you will consider all other facts which tend to the determination of the question whether, with what she knew and what she saw, the nature of the car and the window and the bars and the like, a person of reasonable prudence would have extended his hand from the window to the degree that she extended her hand. How far she extended her hand is another question of fact which you will have to decide from the evidence. You have to examine and determine in detail just how far she put her hand out, and whether, under all the circumstances of her environment and actual knowledge at the moment, a person of reasonable prudence and caution, situated exactly as she was situated at that very place, knowing what she knew, seeing what she saw, and understanding the other physical conditions that were brought to her mind by her *493senses, would not have extended the hand as far as she extended hers, and thus come in contact with the pole, then she would have been negligent in adopting that conduct that a person of reasonable prudence and caution would not have adopted under the circumstances.”

Even had the court intended, in the special instruction, to indicate that in his opinion the bars would be a warning, his direct charge left the question to the jury to determine. *Washington Gaslight Co.*v. *Poore,*3 App. D. C. 127—139; *Maxey*v. *United States,*30 App. D. C. 63-78, and cases there cited.

It appears also that the exception to the instruction was a general one. It did not call the attention of the court to the particular part of the same now under consideration. Had this been done, it may be inferred from the words of the charge above quoted, that the court would have modified the expression so as to remove the objection. The special grounds of objection should, at least, have been stated, so as to give the court an opportunity to pass upon the particular point. *W. T. Walker Furniture Co.*v. *Dyson,*32 App. D. C. 90—92, 19 L.R.A. (N.S.) 606; *McDermott*v. *Severe,*25 App. D. C. 276-290, S. C. 202 U. S. 600-610, 50 L. ed. 1162-1168, 26 Sup. Ct. Rep. 709.

Finding no error in the record, the judgment will be affirmed, with costs. *Affirmed.*