Schultz v. Michigan United Railways Co.

158 Mich. 665 | Mich. | 1909

Lead Opinion

Ostrander, J.

(after stating the facts). Confining discussion to the points made by appellant, we find the ■objection to the declaration to be that it does not state by what means the car was suddenly started. It is alleged that the defendant first slackened the speed of the car, and then carelessly and negligently suddenly started and moved the car forward with great unnecessary and unreasonable force and swiftness. The consequences to the plaintiff of such movement, it being alleged that she was careful, are stated. The implication is that defendant’s servant voluntarily controlled the movement of the car. The objection is without force.

It is next contended there is no evidence of defendant’s negligence, for which reason a verdict for defendant should have been directed by the court. This contention is, under the peculiar facts of the case, so intimately connected with the subject of plaintiff’s negligence that the subjects may properly be considered together. It is clear that those operating this car did not intend to stop the car at Postumville. They did not operate it, and did not intend to operate it, so as to permit her to alight there. The reasonable, perhaps the necessary, inference to be drawn from the testimony, is that this car was in control of the motorman, was in proper running order upon a proper track, and that the increase of speed complained about was occasioned by the application of power. The movements of cars to and over switches are incidents of railway travel. It is neither negligent to decrease the speed of an electric car in approaching and. passing a switch nor negligent to increase its speed after passing the switch by the application of power or the release of brakes, or both. Ordinarily such operation is regarded as prudent operation. Assuming that none of the passengers upon the car desired to alight at Postumville, the testimony wholly fails to show negligence in its management or its operation. It is only by assuming that because defendant owed to the plaintiff the contract duty to permit her to alight there, and because her position in the car was due to reliance upon a performance of this duty, and the diminished speed, therefore the car was negligently operated, and therefore plaintiff was without fault. This assumption involves the duty of defendant in the exercise of due care to. anticipate that plaintiff would leave her seat, as passengers often and perhaps commonly do, and approach the door of the car before arriving at the station. It is not claimed that any servant of defendant saw plaintiff during her passage from her seat to the door. Under the circumstances disclosed, it cannot be said, as matter of law, that in passing to the door while the car was in motion the plaintiff was negligent. Bradley v. Railway Co., 94 Mich. 35, 38 (53 N. W. 915); Etson v. Railway Co., 110 Mich. 494, 496 (68 N. W. 298). Neither should it be said that the operation of the car, otherwise proper, was negligent operation because plaintiff did leave her seat. She had the right to remain in her seat until the car had stopped. Defendant was not bound to take notice that she would do what her testimony disclosed she did do. If it were otherwise, the fact of prudent or imprudent operation of cars would depend upon the actions of those individuals who insist upon boarding and leaving a car before it arrives and without regard to the immediate presence or absence of those in charge of the vehicle. I am not able to distinguish the case in principle and Etson v. Railway Co., supra. In that case the car, by a sudden acceleration of speed, moved forward to its stopping place while plaintiff was in the position — out of his seat — assumed by him for the purpose of quickly alighting. In the case at bar, the car did not stop at the regular place for alighting, but, with an increase of speed, ran by the station.

The judgment is reversed, and a new trial granted.

Grant, Hooker, McAlvay, and Brooke, JJ., concurred with Ostrander, J.

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Dissenting Opinion

Moore, J.

(dissenting). I cannot agree with the conclusion reached by Justice Ostrander in this case.

The plaintiff got upon the car at the station of the company in the city of Battle Creek to ride to a point in the outskirts of the city, where there is a waiting room maintained by defendant, at which defendant’s cars usually stop upon request. The station is known as “Postumville.” Testimony introduced in her behalf tends to show that she paid the usual fare to the conductor, and at the same time told him she wanted to alight at Postumville, and received by word of mouth or otherwise the acknowledgment of the conductor that he understood her desire. The record also shows that she had frequently taken this car and alighted at Postumville. She testified:

“ "When we got up to Postumville, the car slackened up for me to get off, and I gets up and goes out, and just as I gets out where I am going to step down he jerked the car full force and pulled the bell rope, and that is the last I remember, and I struck on this shoulder [indicating] first.

“Q. Now when you got up from your seat, where did you go ?

“A. I went to get out. The car was slacking for me to get out.

“ Mr. Ladd: I object to that, and move to strike it out as a conclusion of the witness.

“The Court: The part ‘for me to get off’ may be stricken out.

“Q. Now, I want you to be careful, and tell me where the car was in reference to Postumville station when as you say the car slackened up ?

“A. Right there by the station.

“Q. Now, you may describe as near as you can how the car was running before it slacked up, and how it run when it did slack up.

“A. It was running with quite full speed after it crossed the Grand Trunk tracks [80 rods west of Potsumville], and, when it got up there toward this little waiting room, it slacked up and it kept slacking up until it got almost to the station where I was to get off, and it slowed down, and I thought it was slowing down for me to get off, so I gets up out of my seat and says to my sister ‘ Good-bye,’ and I went out, and just as I got to where I was just stepping down on the platform, I was in the little entrance, the motorman jerked the car full force and he rung the bell.

“Mr. Ladd: I object to the statement about the motorman jerking the car full force as being a conclusion of the witness not based upon fact and move to strike it out.

“The Court: I think the part with reference to the motorman may be stricken out.

“Q. Now, you say the car slowed down and was going very slow, and as it was going along slowly you may state what happened ?

“A. I was thrown from the car when they started it up full force. It threw me out. ■ That was the last I remember until I was picked up.

“Q. Did the car stop ?

“A. No, sir; it did not.

“Q. Did you make any attempt to get off of your own accord except to go to the back end of the car ?

‘ ‘A.' No, sir. * * * After being thrown from the car, Mr. Miller immediately picked me up. Mr. Martin was there also. There was no one else there that I remember of at the present time, but my husband was near by there.”

She further testified that she thought she struck the ground a dozen feet east of the station, but did not realize she was hurt until she was picked up, and that she walked home with her husband, a distance of about two blocks. On cross-examination:

“ Q. Just when you got to that rear door, the ear had been slacking down before this you say ?

“A. Yes, sir.

“ Q. Then the car suddenly started up, and threw you out of that door and off ? Is that correct ?

liA. It jerked, the car gave a jerk, and they rung the bell. * * * It threw me out. This door was between the aisle that we have been talking about and the rear platform of the car, because I struck my shoulder there. * $ *

“Q. And just as you got to this rear door, expecting to get out, the car started up suddenly with a jerk, didn’t it? Is that correct ?

“A. It jerked and threw me out.

“Q. And threw you through this rear door ?

“A. Yes; and out into the street. It threw me through the door and onto the platform, and onto the ground.”

We have, then, a situation where the testimony tends to show that a passenger has taken an electric car for a given station, has paid to the conductor her fare to that station, has told him where she wishes to alight, and has his assurance that she will be permitted to alight at that station. This is followed by the further fact that, as the car approached the station, it ran much slower, as though it was about to stop at the station to which the fare was paid, and where the passenger had told the conductor she desired to alight, and where she had been assured he understood her. Was she guilty of contributory negligence in doing what she testified she did ? What constitutes contributory negligence has been defined in many cases and text-books. The following is a fair statement of the law:

“ Contributory negligence means the failure to observe that degree of care which ordinarily careful and prudent persons usually observe under the same or similar circumstances to protect themselves from harm, which failure helped or caused the injury. McLaughlin v. Louisville Electric Light Co., 100 Ky. 173 (37 S. W. 851, 18 Ky. Law Rep. 693, 34 L. R. A. 812).” 2 Words & Phrases, p. 1543.

Was what was done by plaintiff contrary to this rule ? It is a matter of common knowledge that passengers upon electric cars as their street or station is approached, and the car lessens its speed, arise from their seats, and go toward the exit of the car preparatory to alighting. It is a matter of common knowledge that this is expected of them by conductors. So far as I know, it has never been decided that to do this is not the exercise of that degree of care which ordinarily careful and prudent persons observe under like conditions. Whether, under the facts disclosed by this record, plaintiff was guilty of contributory negligence, presented a case peculiarly within the province of the jury.

But it is said no negligence is proven on the part of defendant. It has already appeared that her fare was paid and accepted to Postumville; that the conductor was informed where the passenger desired to alight; that she was assured he understood; that the car slackened as though, to stop; that the passenger proceeded, as she had a right to proceed, toward the exit, with a view of alighting where she had a right to expect she would be allowed to leave the car, and, while she was where she had a right to be, without warning, the car is suddenly started with such violence as to throw her with great force out of the open doorway. If, under this proof, the court may say, as a matter of law, that the inference of negligence may not be fairly drawn by the jury, then there remains little for the jury to do in this class of cases.

I think the judgment should be affirmed.

Blair, C. J., and Montgomery, J.. concurred with Moore, J.