Upon the undisputed evidence, we are of the opinion that the plaintiff failed to make out a case of negligence against the defendant.
The evidence of the sister of the plaintiff is as favorable as that of any witness called on his part. She says when the plaintiff finished speaking with the conductor of the open car on which they all were, he stepped down from the rear platform to the outside step of the car, which runs its entire length, *Page 394 and she saw the other car coming along on the down track, and it struck the plaintiff while he was still on the step, turned him around and knocked him off the car. The witness was looking directly at the plaintiff at this time, and he was looking at her and was moving along the step from the rear toward the front part of the car where she was sitting facing the rear. She saw the car strike his head and she stated positively that he did not slip off the side of the car and fall against the other car. This was when the plaintiff was standing either at the first or second stanchion from the rear of the car.
It appeared that the smallest distance between the tracks at or near this spot was such that there was a space between the outside step of the open car and the body of the closed car of at least seventeen inches. The place where the accident happened was a crowded street, and horse-cars were continually there passing each other.
The company had some open cars that were seven inches wider than the one upon which the plaintiff was riding. Open cars had been in use daily during the summer months for twenty years. All the closed cars were of an uniform width. Thousands of persons during this long period had been seen riding at or near this spot on the outside steps of the open cars at times when they met cars coming from the opposite direction and the cars had passed each other, and no one had ever been hurt nor had any accident ever before happened there or at any other portion of the road from any such cause The space between the tracks was about uniform along the length of the defendant's road, sometimes a few inches more or less.
At the place where this accident occurred, and about the same time in each day, cars were passing each other certainly every half minute.
Policemen and employes of the road frequently stood at this place or near it between the rails of the up and down tracks when cars passed each other and no one had ever been hurt. This was an every-day occurrence. The inspector of the defendant, who had been in its employment for thirty-four *Page 395 years, said that open cars had been in use on the road for twenty years and he had seen at this place, thousands of times, people standing on the step of an open car and pass a closed car at the same time on the other track, and he had never heard of an accident before this one.
Upon these facts, we cannot see how the defendant can be convicted of negligence, because it did not have more space between its tracks. For twenty years such space had been sufficient, although precisely the same opportunities for accidents had arisen many times daily during that period, and yet not one had occurred. Clearly the accident was one not to be apprehended, and a failure on the part of the defendant to take such measures as would make its happening under any circumstances a physical impossibility, cannot be said to be an omission of duty. The accident was not to be apprehended, because thousands of passengers on the steps of an open car had uniformly, and for twenty years, passed in safety the car going in an opposite direction. The body of the plaintiff must, with reference to the car, have been at a most extraordinary and unusual angle at the time of the accident in order that it should have occurred at all. The defendant was not bound to so construct its tracks that it would be impossible for a passenger to be struck by another car while he was standing on the outside of an open one.
There was no negligence on the part of the conductor in failing to prevent the plaintiff from going on the step or in failing to warn him of any possible danger which might arise therefrom.
We think the judgments of the court below were erroneous and they should be reversed and a new trial ordered, with costs to abide the event.
All concur.
Judgments reversed. *Page 396