a new trial, plaintiff in error, defendant below, moved to set aside the verdict "On the ground that replevin under the statutes of the State of New York is not an appropriate remedy or a lawful and legal remedy for taking possession of the alleged incriminating sheets or pictures, and that the proceedings taken in that behalf by the plaintiff were illegal and invalid, and that the plaintiff cannot avail of any benefit of that proceeding, and the introduction in evidence of the replevin proceedings was an error." The motion was denied and exception duly taken.

The learned counsel for the plaintiff in error admits that this question was not formally raised until the defendant's motion. for a new trial, but maintains that the same question was raised by the objection to admission in evidence of the replevin proceedings by the marshal for the Western and Southern Districts of New York respectively.

Examining this record, it is perfectly apparent that no objection was made to the form of the action until it was embodied after verdict, in the motion for a new trial. Upon the admission of the writ of replevin, addressed to the marshal of the Western District of New York, and affidavit, the objection stated was "on the ground that the process of replevin that was executed by the marshal in Buffalo was an invasion of defendant's constitutional right, was an unwarrantable search, an illegal act, and nothing done under it, or information obtained by virtue of it, can be used in evidence against defendant under the Fourth and Fifth Amendments of the United States Constitution."

The same objection was made when the writs of replevin, affidavit and return were offered in evidence concerning the Southern District of New York, and it was said: "Defendant's counsel objects on the same grounds as stated in the introduction of the stipulation, namely, that the papers constitute an illegal proceeding, an invasion of the defendant's constitutional right, as provided by the Fourth and Fifth Amendments, and plaintiff cannot avail of them as evidence in this case, on account of their illegality."

The argument which followed, could it be assumed to broaden the objection, was far from complaining of the form of action as such, but rested upon the Constitution and the character of the seizure of the goods of which it was maintained the plaintiff was not entitled to possession until after a judgment of forfeiture.

The record shows that the objection to the form of the remedy was first taken in any adequate way upon the motion for a new trial when it was too late.

In conclusion, it was suggested rather than argued that the constitutional rights of the plaintiff in error were violated by the seizure of the goods, and reference was made to the Fourth and Fifth Amendments. We think we need only refer in this connection to Adams v. New York, 192 U. S. 585, 597, and Hale v. Henkel, 201 U. S. 43.

Finding no error in the judgment of the Circuit Court of Appeals, the same is

Affirmed.

CHUNN v. CITY AND SUBURBAN RAILWAY OF WASHINGTON.

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

No. 43. Argued November 8, 1907.-Decided December 2, 1907.

An intending passenger coming to a place where passengers habitually board the cars of a trolley company, and which, in itself, is safe unless made otherwise by the manner in which the cars are operated, is not a trespasser nor a mere traveller upon the highway, but one to whom the company owes an affirmative duty and it is for the jury to determine whether the car injuring such person was operated with the vigilance required by the circumstances.

Where a trolley car platform is so narrow that its width cannot fairly be considered without taking into consideration the dangers on both sides of it, one taking a car on one side of it has a right to assume that he will not be put in peril by a car running rapidly in the opposite direction, and

207 U.S.

Argument for Defendant in Error.

he cannot, as a matter of law, be held guilty of contributory negligence in taking the car at that place. That issue is for the jury. Even if the plaintiff carelessly places himself in a position of danger, if the defendant discovers the danger in time to avoid the injury by using reasonable care, the failure so to do, and not the plaintiff's carelessness, may be the sole cause of the resulting injury.

THE facts are stated in the opinion.

Mr. Victor H. Wallace and Mr. Percy Metzger for plaintiff in error:

Plaintiff was standing upon the platform of the defendant, and by its implied invitation, it was therefore the duty of the defendant to see that she was not injured. It was urged below that there was no evidence that the defendant ever built this platform, but see Betts v. Railroad Co., 191 Pa. St. 575.

It was the duty of a servant in charge of one of defendant's cars, on approaching this platform, to have it under such control that it could be stopped in time to avoid injury to a prospective passenger standing upon this platform. This was not done in the present instance, and serious injury causing the permanent impairment of the mental faculties of the plaintiff in error was the result.

The failure of the motorman in charge of the defendant's car to have that car under such control that this injury might have been prevented was the proximate cause of the accident, and this question should have been submitted to the jury for determination.

The jury should have decided such a case as this. Warner v. B. and O. R. R., 168 U. S. 339; R. R. Co. v. Lowell, 151 U. S. 209, 219, 220; Inland &c. Co. v. Tolson, 139 U. S. 551, 558, 559; R. R. v. Amato, 144 U. S. 465; R. R. Co. v. Ives, 144 U. S. 408; R. R. Co. v. Powers, 149 U. S. 43; Jones v. Railroad Co., 128 U. S. 443; McDermott v. Severe, 202 U. S. 604, 609.

Mr. Charles A. Douglas and Mr. George P. Hoover for defendant in error:

The principle of law, upon which the court directed a verdict

for the defendant in this case, is conclusively settled, and has been fully and unequivocally recognized by the Court of Appeals, as well as by this and other courts.

There is no evidence tending to show negligence on the part of the defendant in error, but the evidence does show that the plaintiff in error was guilty of contributory negligence.

The case falls within the principle of cases which hold that a person stepping in front of a moving car is guilty of contributory negligence which bars a recovery. Harten v. R. R. Co., 18 App. D. C. 260; Northern Pacific R. R. Co. v. Freeman, 174 U. S. 379; Barrett v. Ry. Co., 20 App. D. C. 381; R. R. Co. v. Houston, 95 U. S. 697; Edgerton v. B. & O. R. R. Co., 6 App. D. C. 516; Miller v. St. Paul Ry. Co., 42 Minnesota, 454; Childs v. New Orleans City R. R. Co., 33 La. Ann. 154; St. Louis &c. R. R. Co. v. Martin, 61 Arkansas, 549; Creamer v. West End Ry. Co., 156 Massachusetts, 320; Halpin v. 3d Ave. R. R. Co., 40 N. Y. Super. 175.

If the plaintiff was in a dangerous position as the car approached her, which does not appear by the evidence, the motorman was justified in presuming that she would withdraw therefrom in time to prevent a collision. Booth on Street Railways, 305; Nellis on Street Surface Railroads, 301; W. Chicago R. Co. v. Schwartz, 93 Ill. App. 387; Citizens' St. R. Co. v. Shepherd, 64 S. W. Rep. 710; Ry. Co. v. Armstrong, 92 Maryland, 554; Egner v. Ry. Co., 98 Maryland, 397.

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 defend

ant, 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 declaration, 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. VOL COVII-20