100 Mich. 379 | Mich. | 1894
The defendant operates an. electric street railroad in Grand Rapids, with a line extending to Reed’s Lake, which is a summer resort a short distance east of the city. The company maintains pleasure grounds at this place, including a pavilion and conveniences for visitors. During „the summer, the travel over this route is very large. Eor the convenient transaction of its business, the company’s double track is extended and formed into a' ■loop at the Reed’s Lake terminus, so that cars may run continuously, without reversing or switching, around this loop, and back to the city. Within this loop is vacant ground, and, on the side to the north, nearest the pavilion, cinders hav.e been spread, connecting with the walk and the pavilion, and forming an admittedly safe landing place. The sketch on next page sufficiently shows the surroundings to indicate the situation.
On the evening of the 12th of August, 1892, the plaintiff, who had taken passage on one of defendant’s cars, in attempting, after the car came to a,stop, to alight inside of the loop, received serious injuries.- She brought this suit against the company, alleging that the defendant did
The defendant contends that upon the whole record it appears that the landing place provided on the northerly side of the track was suitable and proper, and known to the plaintiff to be so, and that she had no -right to alight on the side of the car next the loop, and that, if she chose to do so, it was at her own risk; and it is further contended that the plaintiff’s testimony, taken as a whole, failed to make it clear how the injury occurred, and also that the grounds inside the loop were a reasonably safe-landing place. A number of other questions are raised, relating to rulings on the trial as to the admissibility of testimony, the refusal of requests to charge preferred by counsel for the defendant, and the charge of the court on its own motion, which will be considered in order.
The plaintiff’s theory is that in attempting to leave the car she stood with both feet on the running board; that a gentleman who was aboard the car assisted her from the running board to the ground; that she clasped his hand in making her descent to the ground; that, upon stepping
It is strenuously insisted that, the company having provided a safe landing place on the northerly side of the loop, its full duty to the passengers was performed, and that it cannot be held liable for an injury occurring by reason of a passenger attempting to alight inside the loop. Upon this question the trial judge charged the jury as follows:
“A street-railway company has a right to select and adhere to the making of their own arrangements for platforms and landing places at such resorts as Reed’s Lake, provided, only, that they make a landing place on one side-safe and commodious, and so conspicuous that all passengers cam easily see it by day or by night, unless it has been so used, and is so use'd, and the circumstances are such, in connection with the landing, as amounts to an invitation to-alight on the other side.”
And, further:
“It is certain, under the testimony in this case of the construction of that walk and landing, running from 30 feet wide down to 10 feet each way, to an extent of from' 150 to 200 feet long, upon the north side next to the-resort, that it offers a plain and palpable invitation for the passengers upon its trains to get off upon that side; and I have no doubt that under the arrangements as testified to,, and uncontradicted, in order for the company to be held as inviting an alighting upon the inside of the loop, that, there must be, and should be, some positive act upon the*385 part of the company, as if a conductor should invite a passenger to get off upon that side, or as if any arrangement had been made for the alighting of passengers upon that side; and I believe the law to be that it would be necessary, under the peculiar testimony in this case, that there should be something that you should fix in your minds, other than the fact that passengers upon a loaded train, riding upon the running board, upon the outside, saw fit to jump off within the loop, and run around across the track to the place of amusements.”
This charge- was sufficiently favorable to the defendant, and fairly stated the law of the case, if there was any testimony tending to show that passengers had been, by the course of conduct of the defendant, invited to alight upon the inside of the loop. See McDonald v. Railroad Co., 26 Iowa, 124; 2 Redf. Amer. Ry. Cas. 532. We also think that there was testimony which justified this instruction. According to the plaintiff’s testimony, she had previously been helped off the car by conductors inside the loop, and there is abundant testimony in the record that the common practice was to alight on either side indiscriminately. The car was so constructed that passengers could alight from either side, and there was no warning or notice to passengers to step off only on the northerly side. The -cars were crowded with passengers, and the evidence shows that, as 'some would alight, others would press forward and take their seats. Under these circumstances, we are not prepared to say that, as a,matter of law, it was negligent to attempt to alight on’ the inside the loop.
But it is said that the car had not reached its usual stopping place, nor the place where plaintiff had been previously assisted to alight. But the car had come to a full stop on the occasion in' question. There was no warning not to alight, and a glance at the surroundings is sufficient t(j indicate that a passenger might well have understood
We also think the question of whether the uneven condition of the ground was such as to amount to negligence on the part of the conrpany was, under the circumstances of this case, fairly a question for the jury. The plaintiff’s theorjr was that the bank of earth from which her foot slipped was directly at the point where one, in alighting from the car, would be likely to step upon its edge, and slip backward. We are not prepared to say, as a matter of law, that this was a suitable landing place.
The defendant asked the court to charge the jury as follows:
“ If the jury find that the space between the outer edge Of the running board of the car and the edge of the sod or little embankment, at the time and place when and where the plaintiff claims she stepped between the running board and embankment, was not more than seven or eight inches in width, it was not negligence on the part of the defendant to have such a space at that time and place, 'and the plaintiff cannot recover.”'
This request was refused, and the defendant’s counsel assign error upon its refusal, citing and relying upon the case of Ryan v. Railway Co., 121 N. Y. 126, as sustaining their contention that the request should have been given. That case is not at all analogous to the present. That was the case of an elevated railway company, which had left a space of from seven to eight inches between its platform and the running board of the car. This running board was presumably substantially upon the same level as the platform, and the court held that some space was
In the main, the cause was very carefully presented to the jury; but we think the court compaitted one error which is important, in view of the defendant’s testimony, and the theory upon which it contested the case before the jury. The defendant requested the court to charge the jury’'as follows:
“If the jury Bnd that the injury was occasioned by some one stepping on the plaintiff’s dress as she was alighting, and she was thereby caused to fall, she cannot recover.”
This request presented the defendant’s theory of the case, and should have been given. The plaintiff denied any such occurrence, and described in detail how she claimed the injury occurred, while the defendant produced
The omission to give this request is not cured by the general instruction that, if the injury was caused by accident or misadventure, without fault of either the plaintiff or defendant, there could be no recovery. The defeiidant had a right to have its theory of the case covered by specific instructions. Dikeman v. Arnold, 71 Mich. 656; People v. Jacks, 76 Id. 218; O’Callaghan v. Boeing, 72 Id. 669; Cooper v. Mulder, 74 Id. 374; Wildey v. Crane, 69 Id. 17; Babbitt v. Bumpus, 73 Id. 331; Miller v. Miller, 97 Id. 151.
The other questions presented are not likely to arise .upon a mew trial, but, for the error pointed out, the judgment will be reversed, with costs, and a new trial ordered.