(1) Street Railways. Negligence. Due Care. Where it appeared from the evidence, that intestate rose from an end seat of an open car while it was in rapid motion and rocking violently, and stood near the side of the car facing the rear, with one hand on the back of the seat on which she had been sitting, while the other hung at her side, the condition of the road being known to her, the exercise of due care is not shown and a verdict was properly directed for the defendant.
DOUGLAS, C.J.
The plaintiff's intestate at the time of the accident was a passenger on a small open car of the defendant, and occupied an end seat.
The evidence shows that she rose from her seat to attract the attention of the conductor while the car was in rapid motion, and swaying and rocking violently, as it had been for some time, and stood near the side of the car, facing the rear, until she was thrown to the ground when the motion was checked by the application of the brakes. She had one hand on the back of the seat on which she had been sitting, while the other hand hung by her side. She had traveled over this portion of the road before on the same day, and previously, and knew the condition of the track to be uneven so as to cause the car to jolt and sway. Upon this undisputed evidence the plaintiff's intestate was not in the exercise of due care, and we think the verdict for the defendant was properly directed.
The plaintiff's petition for a new trial is denied, and the cause is remitted to the Superior Court for judgment upon the verdict.