Crowe v. Michigan Central Railroad
106 N.W. 395
Mich.
1906
Check Treatment
Grant, J.

(after stating the facts). It wаs conclusively established that this car was a standard one, of the height and construction suсh as is in common use upon railroads. It was the standard three-step smoking car. There arе also four-step smoking cars; but no such car had been in use upon this road, extending from Jackson to Saginaw, for three or four years.' The difference in height between a three-step and a four-step car is about eight inches. The court should have instructed the jury that the use оf this car was not negligence.

2. Counsel for defendant insist that the existence of the hole, with thе piece of ‍‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​‌‌​‌​​‌​‌‌​​​​​​​​​​‌‌​​​​‌​‍cinder in the bottom, as described by plaintiff, was not negligence, citing Jackson v. City of Lansing, 121 Mich. 279. The high degree of care required of common carriers of passengers, in transporting them and in the construction and care of their vehicles for that purpose, is not required by the lаw in the construction and maintenance of its platforms and station grounds. Reasonable сare to be determined by the surroundings, the situation, and the probable dangers, is the requirement оf the law. 6 Cyc. p. 605; 3 Thompson on Negligence, § 2697; 5 Am. & Eng. Enc. Law (2d Ed.), p. 532; 26 Am. & Eng. Enc. Law (2d Ed.), p. 512; Hiatt v. Railway Co., 96 Iowa, 169; Finseth v. Railway Co., 32 Or. 1 (39 L. R. A. 517); Pennsylvania Co. v. Marion, 104 Ind. 239; Illinois Cent. R. Co. v. Hobbs, 58 Ill. App. 130; Mayor, etc., of New York v. Bailey, 2 Denio (N. Y.), 433; Collins v. Railway Co., 80 Mich. 390; McKone v. Railroad Co., 51 Mich. 601. Counsel for plaintiff concede this to be the rule. Réasonable care is a relative term, to be ‍‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​‌‌​‌​​‌​‌‌​​​​​​​​​​‌‌​​​​‌​‍determined by the surroundings of each сase, and the dangers to be apprehended and avoided. St. Louis, etc., R. Co. v. Barnett, 65 Ark. 255. The *696construction of a рlatform may be such that a very high degree of care will be required in its construction and maintеnance. Such was the case where the platform joined an open trestle. Johns v. Railroad, Co., 39 S. C. 162 (20 L. R. A. 520). We do not think that Jackson v. City of Lansing is aрplicable. That was a depression worn in a sidewalk to the depth of about three inches. There are depressions and steps in sidewalks which the law recognizes as not negligent, and the risk of which the traveler must assume and guard against. We are not prepared to say that a hole six inches deep and containing a loose obstacle in its bottom would nоt constitute negligence even in a sidewalk. We think it evidently ‍‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​‌‌​‌​​‌​‌‌​​​​​​​​​​‌‌​​​​‌​‍would constitute ■ negligence when еxisting in a platform upon which passengers are invited to step when alighting from cars. A passenger has a right to assume that such platform is reasonably safe. He must alight with reasonable еxpedition. Others may alight before him and partially obstruct his view. He majr be holding his traveling bag or packages, which may also somewhat interfere with his vision.

3. It follows from what has already been said that the plaintiff was not as a matter of law guilty of contributory negligence in stepping аs he did from the car. It was a question for the jury to determine from all the surrounding circumstances.

4. Defendant made a motion for a new trial, one of the grounds of which was that the verdict was аgainst the overwhelming weight of the evidence. Whether the jury found the defendant guilty of negligencе on account of the height of the steps of the car or the hole in the platform, with a chunk of cinder therein, it is impossible to determine. It ‍‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​‌‌​‌​​‌​‌‌​​​​​​​​​​‌‌​​​​‌​‍is due to the intelligence of the jury to believe that they did not find that a hole such as that described by the plaintiff existed. The overwhelming weight of the evidence is against such claim. Plaintiff alone testified to its existence. ' It is significant that he did not allege in his declaration either the existence of the hole or of the *697chunk of cinder, but that he stepped upon loose cinders. He never saw the hole before, and he had taken the train and had alighted there many times a year. No such accident had ever occurred before upon this platform. It is not probable that the defendant would permit the existence of so dangerous a place for passengers to alight. Several employés of the defendant and other entirely disinterested witnesses testified that the platform was firm and level, and that there was no hole.. Two disinterested persons standing closе to the plaintiff as he alighted, who witnessed the accident, testified that plaintiff steppеd upon a loose piece of coal lying upon the platform; and one of them testified that he kicked it away with his foot, saying to the plaintiff: “That is what you stepped on.” The evidence, aside from the plaintiff’s testimony, established beyond a reasonable doubt that this platform was level, solid, and in good condition. The presence of a piece of coal, entirely unaccounted for, was undoubtedly the cause of the plaintiff’s acсident. Upon the question of granting new trials, see Brassel v. Railway Co., 101 Mich. 5; Gregory v. Railway, 138 Mich. 368; Whipple v. Railroad Co., 130 Mich. 460.

Other questions are raised, but as they are not likely to occur upon a new ‍‌‌‌​​‌‌​​‌‌‌​‌‌‌‌​​​‌‌​‌​​‌​‌‌​​​​​​​​​​‌‌​​​​‌​‍trial, should one be had, we deem it unnecessary to determine them.

Judgment reversed, and new trial ordered.

McAlvay, Blair, Montgomery, and Hooker, JJ., concurred.