23 S.E.2d 730 | Ga. Ct. App. | 1942
1. Where a street-car track runs down the middle of Moreland Avenue and the center of Moreland Avenue is the county line between Fulton and DeKalb Counties, and a passenger riding on such street-car was injured by the door of the car before he was given due time to pass entirely through the door, he would, in contemplation of law, still be on the street-car as a passenger, and still be located, in contemplation of law, on the county line, and could sue in either county. The superior court of Fulton County had jurisdiction where the motorman operating the car was riding on the side of the car in Fulton County, and the plaintiff was leaving the door on the part of the car in DeKalb County when injured.
2. At the end of the journey the relation of carrier and passenger continues until the passenger has had a reasonable opportunity to depart from the train or car in safety. Applying this rule to the evidence in the case, the judge was correct when he stated, in his order overruling the motion for new trial: "The evidence demanded a finding that at the time of the alleged injury the plaintiff was a passenger of the defendant company." Whether the defendant exercised due care toward the plaintiff, a passenger, or whether the plaintiff as a passenger by ordinary care could have avoided the consequences to himself caused by defendant's negligence, if any, are entirely different questions. Code § 105-603.
3. The defendant alleged that it was not negligent, and sought to defeat a recovery of damages. There was no request to charge. There was nothing in the answer that indicated any purpose merely to diminish or apportion the damages. Indeed, there was nothing in the pleading to indicate that the defendant's purpose was merely to defeat a recovery of a part of the damages; and it was not error, in the absence of a request, for the judge not to charge on comparative negligence, even *653 though some phase of the evidence might have authorized it. The issue made by the pleadings was liability or nonliability.
2. The evidence showed that the plaintiff entered the street car and his fare was paid; that he was about seventy years old. The motorman testified as to the condition of the plaintiff when he entered the street car "that he could not move around very well" on account of old age or being sick. The plaintiff testified that he sat down in the car until it stopped; that he was getting off the car at the rear and did not see the motorman do anything to the door. "I was trying to take care in getting off the street car. Then the door slammed before I could turn loose. I state at that time I was already standing on theground. I was holding the rod with my right hand. As to why it was, I say then I had stepped down and I was still holding on, the door closed before I could get set on the ground. As to if I was standing on the ground, I had just stepped down to the ground and about the time I stepped down the door slammed before I could turn the handle loose. I was just holding on the rod. I had bothfeet on the ground." The plaintiff's arm remained caught in the rear door until the motorman opened the door.
The motorman testified that he did not see the plaintiff as he was descending the rear steps, nor at anytime thereafter, until a lady "hollered" to him that a man was caught in the door; that at the time of the accident the street car had gone to the end of the route and had stopped in order to make the return trip. Sills, a witness for the defendant, testified that he saw the plaintiff on the occasion in question, there with his arm caught in the door; that the plaintiff "stepped off of the street car and held his arm on the inside of the car, and stepped on down on the ground, and the door came up on his arm. As to if I would estimate the length of time after the man [plaintiff] got off the trolley and stood there *655 with his arm in the door, I could not say just how long. I imagine between three and five seconds. When he got off he did not step down and take his arm right out." The motorman and a witness, Evans, testified that they were familiar with the working of certain mechanical devices attached to the door, as the one in question, as well as the door itself, and that they were in proper working order.
1 Nellis on Street Railways (2d ed.), 609, § 305, says: "The duty resting upon a carrier involves the obligation to deliver its passenger safely at his desired destination, and that involves the duty of observing whether he has actually alighted before the car is started again." And still speaking of the duty resting on a carrier to a passenger, Nellis on this same page further says: "It is not a duty due to a person solely because he is in danger of being hurt, but it is a duty owed to a person whom the carrier has undertaken to deliver, and who was entitled to the delivery safely, by being allowed to alight without danger." In Atlanta Railway Co. v. Randall,
We recognize the rule of law, under the circumstances disclosed by the evidence here, that after a passenger leaves the street car and has a safe footing on the street the company's duty toward him is then one of only ordinary care; but this presupposes that the passenger has left the car and has obtained a secure footing on the street; that is to say, has completely alighted in safety. It is true in the instant case that the plaintiff had put his feet on the surface of the ground, but while he stood there, and before he had taken a step, and while he was still holding on to a rod attached to the car, put there for the purpose of assisting persons to alight, yet located on the inside of the door, the door closed, and, according to the witnesses for the plaintiff, it closed within three to five seconds. The undisputed testimony was that the plaintiff was injured in the very act of alighting, or so instantaneously after he touched the street that the catching of his arm in the door must be regarded as an incident of his descent from the car. We think the undisputed evidence showed that the relation of passenger and carrier was still intact, and thus the liability of the company was to be tested by whether it had exercised extraordinary care, and that the judge did not err in so holding as a matter of law. Whether the defendant exercised due care toward the plaintiff, a passenger, and whether the plaintiff, as a passenger, by ordinary care could have avoided the consequences caused by the defendant's negligence, if any, are entirely different questions. Code, § 105-603; Georgia Florida Railway
v. Thigpen,
3. Here the defendant by its answer alleged that it was not negligent, and sought to defeat recovery of all damages. There was nothing in the pleading indicating that the defendant's purpose was merely to defeat a recovery of part of the damages. The pleadings are the chart and compass by which the judge is requested by the parties to guide the case. The pleadings on which the parties went to trial made an issue of liability or nonliability. Southern Railway Co. v. Coursey,
The rule is stated in Donahoo v. Goldin,
4. Here, where the direct evidence was not all one way, and where there were proved facts and circumstances which could be *658
taken as inconsistent with the direct positive testimony, the rule in Frazier v. Georgia Railroad Banking Co.,
5. On the question whether the evidence authorized the verdict, the defendant lays great stress on that part of its evidence which brought out that it had a mechanical device or door on the car that made it impossible, when this device or door was working properly, not to give the plaintiff from three to five seconds after his feet had left the step, for him to safely alight, or it might be said, to complete his undertaking of alighting. Assuming that the company had such a device or door on the car and that it worked perfectly, we can not hold as a matter of law that the company could arbitrarily fix three to five seconds as a reasonable time for itself, its employees, or its mechanical devices, and require that an old and infirm person, leaving the car and holding onto a rod which was attached to the inside of the door and had been put there for such purpose, should, at his peril, extricate or remove his entire body from the door or mechanical device within that length of time. Where his footing was insecure, the most natural way for such a person to secure a firm footing on the ground was to hold the rod on the inside of the door until he could steady himself.
After careful consideration of all the evidence we think the verdict for $350 was authorized.
Judgment affirmed. Sutton and Gardner, JJ., concur.