164 Mich. 653 | Mich. | 1911
Plaintiff brought suit against defendant for damages resulting from injuries received, caused by the claimed negligent handling of a car on defendant’s street railway, in the city of Detroit. The claim of plaintiff
“After plaintiff had stepped upon the lower step of said car, and while he had hold of the brace of said car with his left hand, the defendant’s servants, agents, and employes, in charge of said car, carelessly, negligently, and wrongfully started said car suddenly forward, by means of a quick application of electricity, without giving plaintiff any warning that said car was to be started as aforesaid, and without giving plaintiff an opportunity to get safely aboard said car, thereby jerking plaintiff so suddenly and severely that he was thrown heavily forward,” etc.
The plaintiff sets forth that defendant owed a duty—
“ To give plaintiff, in boarding said car while the same was standing still, reasonable time and opportunity to do so before starting said car, and to give plaintiff an opportunity to step up from the step to the rear platform of said car before starting the same, and to refrain from starting said car while plaintiff was going to board it; * * * that defendant negligently * * * failed to give plaintiff a reasonable time and opportunity * * * to step from the step of said car up onto the rear platform before starting said car, and did not refrain from starting the said car while plaintiff was getting aboard it.”
The accident occurred October 20, 1908. Plaintiff and three companions were standing on the west side of Belvidere avenue on Kercheval, waiting for a car. The car came to a stop. Three of the party got on the car, and then plaintiff proceeded to get on. There is a dispute as to exactly what occurred. His testimony is that he put his left foot on the step of the car, took hold of the stanchion with his hand, and reached for the second step with his right foot, when the car started, causing him to lose his balance, and the car started “ worse ” throwing him to the pavement. On cross-examination he leaves it doubtful whether or not he got his right foot on the second step, as he testifies both ways. He explains what “ the car started worse ” means by saying that it first started easily
The theory of the defense was that plaintiff had succeeded in boarding the car in safety, and fell from the rear platform either as a result of losing his balance while engaged in a friendly scuffle with his companions, or by reason of a sudden and unexplained movement of the car after it was put in motion. One of the bones (fibula) of plaintiff’s left leg was fractured near the ankle. A trial resulted in a verdict and judgment for plaintiff. On account of errors which occurred upon the trial, defendant, upon a review by this court, asks for a reversal of such judgment. No motion for a new trial was made. Attention will be given to those errors defendant in its brief discusses and relies upon as constituting reversible error.
“Did it appear from the evidence that plaintiff’s injury resulted from a fall caused by a sudden acceleration in the speed of the car after he had boarded the same; the initial act of starting being usual and proper and without negligence ? ”
We consider this a question of fact and not of law. This question indicates the theory upon which defendant tried the case. The court has not undertaken, in what it has just said upon the question of variance, to weigh the evidence, but to hold that the proofs of plaintiff were admissible under the pleading, leaving it for the jury under proper instructions to find the fact.
“ The right of the plaintiff to recover in this case is planted solely upon the claim that, while he was in the act of boarding the car, and before he had been given an opportunity to complete that act, he was, through the negligent starting forward of the car, precipitated to the pavement. * * *
“ If it be your view from the evidence that the plaintiff had succeeded in his effort to board the car, and, having so done, stood engaged in conversation, and thereafter was precipitated to the pavement, in that event you may not award the plaintiff a verdict, because the declaration*658 filed in this case, which is the statement of the plaintiff’s claim, would not warrant you in returning any verdict upon any such theory as that.”
This last paragraph quoted was given because this was defendant’s theory, in support of which evidence was produced. The two paragraphs of the charge quoted placed the issue squarely before the jury, and any other charge upon that matter was unnecessary.
“Your first inquiry here, * * * gentlemen of the jury, should be: What actually happened after the plaintiff attempted to or did succeed in boarding this car ? It seems to be conceded that the car was brought to a full stop. Thereupon it was the duty of the defendant * * * to give the plaintiff a reasonable opportunity to board it, and to come to a position of safety upon the car. If they did that, then the defendant did its full duty and is not liable.”
Again:
“The defendant must give the passenger a reasonable opportunity to board the car and to come to a position of safety upon it after he had boarded it; and whether or not its conduct in a given case affords such reasonable opportunity is a question of fact for the jury.”
Again:
“So here, gentlemen of the jury, it is for you to say: Did this defendant give to this plaintiff, first, a reasonable opportunity to board the car in safety, and did it give him a reasonable opportunity to come to a position (of safety) upon the car? If it failed in either of these respects, then, if he himself were without negligence, it would be answerable for any injury that its failure caused him.”
Again:
“I think I said to you, also, a moment ago, that it is not*659 necessarily negligence, as a matter of law, to start a street car when a person intending to become a passenger thereon is attempting to board it. Just what a company may do in starting a car is a question of fact for the jury also, and applying this test to the defendant’s employé, namely, was the plaintiff given a reasonable opportunity to safely board the car and come to a safe position upon it ? Applying that test, you can say whether or not such a reasonable opportunity was given.”
Again:
“It is not necessarily true that a street car company must keep its car still in waiting until a passenger shall have succeeded in getting aboard the car. * * * There may be conditions under which it may not be necessary to do that, and, whether or not there are conditions which justify the company in moving its car ahead before a passenger shall have entered a car, that is a question for the jury to say, bearing in mind that the company must give a passenger a reasonable opportunity to board the car and come to a reasonable position of safety upon it. Do I make myself clear upon that, gentlemen of the jury ? ”
It is insisted that the reiteration by the court that a passenger must be afforded a reasonable opportunity to come to a place of safety on the car after boarding the same, while sound as a statement of law, in the abstract, had no place in this case, where the sole negligence charged is a failure to afford a reasonable opportunity to board the car, and necessarily gave the jury to understand that it would be proper to base a verdict upon a finding of failure to observe that duty, and that the court described two several and distinct duties which defendant owed plaintiff. The contention that the court should have given a definition of what constituted boarding a car probably was suggested from a consideration of the point here raised. We have already passed that objection; but we may add that the decisions of this court and the authorities examined define the duty of street railways relative to passengers getting on and off their cars as follows:
*660 “ ‘ The time of stoppage must be such as to enable the passenger attempting to get on or off to reach a place of safety, either on the street or in the car before it is started.’ 6 Cyc. pp. 611, 615, 616, and cases cited.” Beattie v. Railway, 158 Mich., at page 246 (122 N. W. 558), and cases cited.
This is the accepted law, very simply stated. The term “ boarding ” the car used by the pleader and counsel and court is certainly not misleading. Everybody understands that it means getting on the car. The duty owed to the passenger attempting to do this, as just stated, need not be repeated. It is one continuing duty towards a passenger from the initial attempt until final accomplishment. The fact that a breach of this duty might occur at any time while a passenger is getting on or off from a car does not segregate it into separate and distinct duties. Reading the foregoing excerpts and the entire charge, we find that in this respect the charge of the court was without prejudice and not misleading.
The court excluded the evidence as impeaching as to all but the plaintiff, who had been cross-examined upon the matter. Plaintiff had testified that when in the doctor’s office he was conscious and his mind was perfectly clear. It appeared from the testimony of one of them that the party had taken two drinks before taking the car. It is urged that the evidence was very material as showing the condition of plaintiff at the time of the accident which the report of the doctor indicated. The report was not offered as substantive evidence, but to identify the subject-matter.
It is not claimed by defendant that these parties actually stopped the car and got on at another place than that proved and practically admitted. The testimony of the doctor offered, if admitted, would show that these statements, made immediately after the accident, were that they got on the car at McLellan avenue, one block east of Belvidere avenue, and rang the bell to get off at Belvidere; that the car did not stop until it reached Holcomb; that plaintiff got off the car while it was going and the others got off at Holcomb. The real purpose for which this evidence was offered was to show that plaintiff was intoxicated, and not to establish the truth of the facts stated. The record clearly shows that those statements were not true. Under the circumstances of this case, on the offer made, the evidence was properly excluded.
No reversible error appears in the case.
The judgment is affirmed.