145 P. 274 | Or. | 1915
Opinion by
It is maintained that an error was committed in denying a motion for a judgment of nonsuit. The defendant owns in Portland, Oregon, a system of street railways and operatesthereon electric cars. It maintains on the west side of the "Willamette River a double line of tracks extending from the business section of the city south on Third Street for quite a distance. The cars on such line, going in that direction, run on the west track and, in the vicinity of the accident, make regular stops only at alternate street crossings. The plaintiff at the time of the injury resided at the northwest corner of Lincoln and Third Streets, at which intersection the cars were not halted. She testified: That on April 30,1913, at 5:30 p. m., she became a passenger on a “pay-as-you-enter,” car, going from the business district to her home and carrying small packages in her arms. That in ample time before reaching College Street, the crossing immediately north of the one near which she resided and the intersection where the cars going south were regularly halted, she sig
“In the case of street railway companies, however, neither the officers of such corporations, the managers of their cars, nor the traveling public, as a general rule seem to regard the practice of riding on the platform of their cars as hazardous, and the weight of authority is to the effect that a passenger thus riding is not per se negligent, unless the practice is forbidden by statute or by rule of the carrier brought to the notice of the passenger. * * Until they adopt some such regulations, and notify the public, it is but reasonable to hold them liable for injuries, resulting from their own negligent acts, to their patrons, who are themselves in the exercise of reasonable care, whether riding upon the platforms or within the cars”: 5 R. C. L., § 674.
In another part of that volume it is said:
“It is usually held not to be negligence per se for a passenger to leave his seat and approach the door of the car preparatory to disembarking after his destination has been announced and the train is approaching the station, or to go upon the platform of the car while the train is in motion, preparatory to alighting. * * Whether in a particular case the passenger is negli*263 gent in taking sncli position is for the determination of the jury”: 5 R. C. L., § 677.
An exception to this rule, as to the duty of a passenger, is noted by a distinguished law-writer who says:
“If the train is approaching the station at a dangerous rate of speed, and if he is not invited by any servant of the carrier thus to go upon the platform, and if there is no necessity for him so to act, he cannot recover damages by reason of the fact of being jerked off the train by a sudden increase of its speed which it makes instead of stopping at the station”: 3 Thomp., Neg. (2 ed.), § 2953.
The decisions which gave rise to the departure from the general rule thus adverted to were evidently made when open platforms were a part of passenger cars that were propelled by steam locomotives. Platforms of that kind upon such cars have been superseded by vestibules the doors of which are, or should be, opened only when the train is brought to a halt, usually to receive and discharge passengers at stations. The exception noted has no application to modern cars, and a passenger who is approaching his destination when the station is announced may leave his seat, preparatory to his departure, and enter the vestibule, and if the door thereof has been carelessly left open, and by a sudden jerk of the car he is thrown therefrom, the question of his negligence is properly submitted to the jury: Kearney v. Oregon R. & N. Co., 59 Or. 12 (112 Pac. 1083, 115 Pac. 593).
In Young v. Boston & N. St. Ry. Co., 213 Mass. 267 (100 N. E. 541, Ann. Cas. 1914A, 635, 50 L. R. A. (N. S.) 450), the testimony tended to show that as a car on which the plaintiff was a passenger approached his journey’s end, he signaled the conductor to stop,
Exceptions having been taken to the court’s refusal to give requested instructions, it is contended that errors were committed in declining to charge the jury as follows:
“ (1) If you find from the evidence in this case that while one of the street-cars of this defendant was being operated in a careful and prudent manner on and around the curve leading from Third Street to Grant Street, and as the said car was being brought to a stop for the purpose of permitting such passengers as desired to alight from said car, but before the said car could be brought to a stop for such purpose, the plaintiff, in attempting to alight from said car, while the same was in motion, so carelessly, recklessly and negligently walked, stood, or conducted herself that in attempting to alight from said car she slipped or fell, the plaintiff is guilty of negligence and cannot recover, and your verdict should be for the defendant.
“ (2) If you find from the evidence in this case that the plaintiff voluntarily placed herself in the exit door of the street-car and voluntarily remained in that position, and if you further find that there was sufficient*265 room inside the car to accommodate the plaintiff, you are instructed that she should have remained inside the car, and that by voluntarily remaining in the exit door she assumed the risks and dangers incident to the ordinary movements of the car in the operation of same,-and therefore, in that event, your verdict should be for the defendant.
“(3) You are instructed that if you find from the evidence that the servant of the defendant in charge of said car, to wit, the conductor, had no notice of any infirmity of the plaintiff, or in the exercise of reasonable care under the circumstances could not have discovered that plaintiff was other than a reasonably prudent and careful person, then the defendant did not owe the plaintiff the duty of restraining or attempting to restrain her from standing in the exit-way of the said car. ’ ’
“The carrier,” says a text-writer, “owes to the passenger the duty of protection during transportation in order that, while on the carrier’s premises and in his vehicle, they may enjoy comfort, peace and safety-This duty of care involves warning or danger so far as such warning might enable the passenger to protect himself against an injury which might be anticipated in the exercise of a high degree of care and foresight, and the carrier will be liable for an injury which might have been avoided if due warning had been given, and also for injury resulting in the reasonable efforts of the passenger to avoid supposed danger, where the warning is improperly given”: 6 Cyc. 600.
The averment of the complaint referred to, as we understand it, undertook an assertion of the rule last quoted, and the alleged protection which was neglected by the defendant’s servant related to the failure of the conductor to warn the plaintiff of the danger which might reasonably have been anticipated from passing over a curve in the track of which he was supposed to have had knowledge. That part of the initiatory pleading under consideration related to such admonition, and not to any physical restraint which the defendant’s servant was required to exercise. No error was committed in denying the third request.
It follows that the judgment should be affirmed, and it is so ordered. Aeeirmed.