147 Mich. 172 | Mich. | 1907
Plaintiff brings this suit to recover compensation for injuries sustained October 7, 1904, while he was a passenger on one of defendant’s street cars in Bay City. He testified that, as the car approached Twenty-Third street, he indicated his desire to alight by giving the customary signal.
“When it came within 12 or 14 feet of the crossing * * * she slacked down. * * * It had every appearance of stopping. * * * I went * * * on the rear platform. * * * Two passengers * * * got off before me. * * * I took hold of one [a bar] at the left side. I had my dinner basket in my right hand. After the second passenger got off, I fell down — I stepped down. The car was * * * probably five or six feet past the crossing. * * * When those passengers got off the car was not standing still. The car was right on the point of stopping when I went to step off. The last I noticed was when the second man stepped off, then it was right on the point of stopping. And I was satisfied, certain without any doubt, that it would be stopped by the time I could get down. I had to look so close to see the lower step that I didn’t notice whether she had come to a stop or not, but, in my opinion, she had, but just as I stepped she shot off and I struck. * * * As soon as I struck I let go. I might have held on an inch longer than I did if the car had not started. ”
In consequence of this sudden starting of the car he (plaintiff) was thrown to the ground and injured. Plaintiff obtained a verdict and judgment in the circuit court. Defendant seeks a reversal upon several grounds.
First. It contends that a verdict should have been directed in its favor. This contention compels us to consider this question, Was there evidence that plaintiff was
Defendant refers to cases (Bradley v. Railway Co., 94 Mich. 35; Etson v. Railway Co., 110 Mich. 494; Conroy v. Railway, 139 Mich. 173) holding that the acceleration of the speed of a street car between its stopping places is not evidence of negligence. The principle of these cases has no application where the car is started when a passenger is alighting therefrom at the invitation — express or implied — of the carrier. In such a case — and this is such a case — it is, as above stated, negligence for the carrier to start the car.
Second. Defendant contends that the court erred in giving the following instruction to the jury:
“If the car was at the usual alighting place at the time that plaintiff attempted to alight, he would not be guilty of contributory negligence, as a matter of law, in alighting there, if he had given the proper signal for the car to stop and at the time he made such attempt he believed it had stopped, but it had not in fact, but was merely moving so slowly that a prudent person under the same circumstances would have alighted. If, however, the car had not practically come to a stop at the point and plaintiff was injured in consequence thereof, he cannot recover.”
Defendant contends that the foregoing instruction was erroneous on the ground that it was contributory negligence for plaintiff (a passenger) to attempt to alight if the car had the slightest motion. Upon this proposition we approve the following reasoning of the supreme court of Illinois (Cicero, etc., R. Co. v. Meixner, 160 Ill. 321 [31 L. R. A. 331]):
*175 “ Electricity as a motive power, while stronger and more powerful and with possibilities of a greater speed, is at the same time more nearly under the control of the person in charge than horse power. The strict rule in force regarding the negligence of a person alighting or boarding an ordinary train of steam -cars had for it many good and sufficient reasons, which are not applicable to the electric car, as in general use. In the latter case, stops are more frequent, and opportunity for great speed is not presented. Steps for passengers are near the ground, and the chances of a misstep or fall are not so great as in steam cars. * * * While, in electric cars, the possibilities of speed are greater than in the case of horse cars, yet the general operation dnd management of such cars so nearly approach that of horse cars that it must be held that the same rule of law * * * that it is not negligence per se to board or depart from such cars while in motion, is also applicable to electric cars.”
This does not mean that a court can never say, as a matter of law, that it is negligence for a passenger to get on or off a moving car. That depends on circumstances, the most important of which is its rapidity of motion. When it is moving as slow as indicated by the testimony in this case that question (the question of contributory negligence) should be left to the jury. See, also, 6 Cyc. p. 648; Beach on Contributory Negligence (3d Ed.), § 291.
Third. Certain special questions were submitted to and answered by the jury. We give those questions and their answers:
“1. Did the plaintiff get off the car before it stopped ?
• “A. No.
“2. Did the car stop * * * before plaintiff got off?
“A. Yes.
“3. Was the car at full stop when the plaintiff stepped or got off ?
“A. Yes.
“4. Was the car moving when the plaintiff got off ?
“A. Yes.
• “ 5. Did the car * * * come to a stop * * * at the usual stopping place for passengers to alight ?
“A. Yes.”
Fourth. It is contended that the court erred in refusing to grant a new trial upon the ground of newly-discovered testimony. It is sufficient to say that, under the rule laid down in Canfield v. City of Jackson, 112 Mich. 123, and Grand Rapids Electric Co. v. Manufacturing Co., 142 Mich. 4, there was no error.
No other question demands consideration.
Judgment is affirmed.