132 Va. 342 | Va. | 1922
delivered the opinion of the court.
This is a personal injury case in which the defendant in error (hereinafter called the plaintiff) recovered a judgment against the plaintiff in error (hereinafter called the defendant) for the sum of $7,500, which we are asked to reverse for the reason hereinafter stated.
Naomi C. Dressier (the plaintiff) had resided in South Richmond for several years prior to the injury complained of, and she and her sister for about two years had been working in. the factory of the British-American Tobacco Company, located near Broad street, west of First, in the western end of the city. In going to and from their place of business they traveled on cars of the defendant company, which operated a double-track, electric street car line between the points mentioned. The defendant operated several different lines over Main and Broad streets between Fourteenth street and First street, among them a line known as Oakwood and Broad. The main line operated in South Richmond was known as the Hull street line. During the period aforesaid, about two years, the plaintiff had regularly boarded the Hull street car, asked for and obtained a transfer over the Main street line at the intersection of Fourteenth and Main streets, and been carried to her destination. On March 3, 1918, the defendant established and put into operation a through route by which certain Hull street cars entered the Main street'
Most of the assignments of error relate to the rulings of the trial court in granting or refusing instructions. They embody the principles of the case, and the theory upon which the trial was had. It is unnecessary to quote these instructions, as the determination of the underlying princi
“It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which these expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in the subsequent suit when the very*351 point is involved for decision. The reason of this maxim is obvious. The question before the court is investigated with care and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case outside, but their possible bearing on the very case is seldom completely investigated.”
The propriety, if not the necessity, of this observation becomes apparent when we examine a number of the cases relied upon to uphold the view that the relation of passenger continues during a transfer from one street car to another in favor of one holding a transfer. Keator v. Traction Co., 191 Pa. 102, 43 Atl. 86, 44 L. R. A. 546, 71 Am. St. Rep. 758, decided in 1899, is much relied on by the plaintiff and is regarded as a leading case on that subject, and is cited in nearly all of the subsequent cases in which the statement is made that the relation of passenger continues during the transfer, and yet the case does not decide that, but on the contrary just the opposite is stated in the opinion. In that case a passenger, with h transfer ticket, was at the proper place for boarding her car and was about to board the same when a piece of trolley pole of the car she was about to board fell on her head and inflicted the injury complained of. The decision was rested on the ground that she was at the proper place to board the car and was injured by the fall of the trolley of the very car she was to take. It is distinctly stated in the opinion that “she was not a passenger while on the sidewalk going from one point to the other.”
In Walger v. Jersey City R. Co., 71 N. J. Law, 356, 59 Atl. 14, the plaintiff was a passenger on one of the defendant’s cars. He alighted from the car for the purpose of transferring to another and a transfer ticket was given him. The place at which he alighted was a regular transfer point, but he had not yet'had the opportunity to reach a place of safety after alighting before he was struck by the
In Whilt v. Public Service Corp. (1908), 76 N. J. Law 729, 72 Atl. 420, 74 Atl. 568, a passenger obtained a transfer at a, point where it was necessary for him to walk a city block before reaching the second car. In alighting from the first car he undertook to walk around the rear of the car, and in doing so fell into the fender on the rear of the car, which was down, though there was evidence from which the jury might properly infer that the usual practice of the company was to have the rear fenders fastened up against the end of the car. In the course of the opinion it was said: “It is the rule in this State that in the ordinary case of a transfer from one car to another the traveler continues to be a passenger during the transfer. Walger v. Jersey City, etc., R. Co., 71 N. J. Law 356, 59 Atl. 14. * * Whether the relation of passenger and carrier was suspended during any part of the time plaintiff was passing along Seventh street it is not necessary to decide, for the accident happened before the plaintiff had reached the sidewalk, or passed from that part of the street where the defendant was .operating its cars, and the injury was caused by contact with the very car he had left, and immediately thereafter. The defendant knew that it was necessary that the plaintiff cross the street in
It will be observed on reading this case that while it is stated that in the ordinary case of a transfer from one car to another the traveler continues to be a passenger during the transfer, yet it plainly appears that the decision was rested upon the ground that the defendant had not had an opportunity after leaving the car upon which he was first traveling to reach a place of safety before being injured.
In Colorado Springs, etc., R. Co. v. Petit (1906), 37 Colo. 326, 86 Pac. 121. Plaintiff was a passenger for hire on an electric road. A section of 250 feet of track was out of repair and not in use, and passengers had to walk over this distance to other cars. It was dark and the way dimly lighted. About 2 A. M., when plaintiff was walking along the side of the track to make the connection, he stepped into an open hole made for a trolley-pole and sustained the injury complained of. There was evidence sufficient to sustain the finding that the hole was dug by the defendant. The hole was dug the day before, and the defendant knew that the way would be traveled by its passengers in the darkness of the following night. Held: “It was guilty of negligence in not using reásonable care to see that the way was reasonably safe before the night came on. * * * Further, the relation of carrier and passenger existed between the plaintiff and defendant when he was passing from one car to the other, and it was the duty of the defendant to use reason
It seems manifest from the degree of care it is said the carrier owed and from the cases cited that the court did not use the word “passenger” in a technical sense, but that it meant to hold the carrier bound for only ordinary care.
We have reviewed the foregoing cases at this point not only because they are relied on by the defendant in error, but because they are the only cases cited by the Supreme Court of Illinois in Feldman v. Chicago Rys. Co. (1919), 289 Ill. 25, 124 N. E. 334, 6 A. L. R. 1291, to support the statement that the weight of authority holds that a passenger on a continuous journey maintains his char-' acter as passenger while making the transfer from, one car to another. The court also relies upon its own prior decisions to sustain the same view. This reliance is best answered by the following extract from the dissenting opinion of Chief Justice Dunn and Cartwright, judge, which saves a review of these cases by this court:
“We do not agree with the conclusion that the plaintiff, ■as a matter of law, was a passenger while walking on the public street. This rule of law as to what will constitute the relation of passenger and carrier has been firmly established by textbooks and decisions, which were carefully reviewed and considered in the case of Chicago and Eastern Illinois R. R. Co. v. Jennings, 190 Ill. 478, 60 N. E. 818, 54 L. R. A. 827. Upon such review and consideration, it was said to be uniformly held that the condition must be such that the passenger is under the care of the carrier and must be at some place under the control of the carrier provided for passengers, so that it may exercise the high degree of care exacted from it. The plaintiff, having safely alighted
So far as the majority opinion in the Feldman Case is
“The fact that the plaintiff had a transfer and intended to pursue his journey on another car did not make him a passenger after he had safely alighted from and cleared the car on which he had been riding. Such relationship did not continue during the time he was walking upon the public highway to the car for which he had a transfer. While the plaintiff was walking upon the public highway from the car from which he alighted to the car upon which he intended to continue his journey, he was not a passenger, notwithstanding the fact that if he had reached the car for which he had a transfer and had boarded it, the relation of passenger and carrier would have been restored.”
This holding accords with the Massachusetts doctrine in such cases, but probably goes further than was necessary. Under the decisions in this and other States, the case might have been safely rested by the Supreme Court on the ground that Feldman and his companion had not had an opportunity of reaching a place of safety after alighting from the car, and under such circumstances that the company should be held liable, but the majority opinion in the Supreme Court did not take this view of the case, but held generally that the plaintiff was a passenger while transferring from one car to the other. It does not appear from the report of the case whether any suit was instituted by Burke or not, but upon the theory of the Supreme Court that Feldman’s right of recovery was based upon the fact that he held a transfer to another car, Burke would not be entitled to recover, although the only difference between his case and that of Feldman’s was that Feldman held a transfer and he did not» Under the doctrine in this State and
In Pins v. Conn. Co. (1917), 92 Conn. 310, 102 Atl. 595, the plaintiff was under the immediate control and direction of the conductor of the car at the time she was injured. There was a break in the line, and it was necessary for passengers to get out of the car and walk past this break in order to reach another car and continue their journey. When the car on which Mrs. Pins was a passenger reached the break, the conductor got off the car, saying, “This way, please,” and led the way along the path which the passeng'ers were to travel in order to reach the car they were to take. In making' this journey under the direction of the conductor, she fell and sustained the injury complained of. It was said in the course of the opinion that “The place at which she alighted was not the terminus of her trip. She did not alight because she had reached her destination, but in order that she might reach it. She alighted when she did because she could not preceed further as the defendant’s passenger without doing so, and because she was directed by the defendant’s agent to do so in order that it might be enabled to carry out its contract with her and transport her to New Haven. She traveled a path under the direction of the conductor and followed his leadership and guidance. When she fell, she was doing just what she had been told to do to accomplish her trip, and was just where she had been invited and directed to be as incidental to her transportation.”
Killmeyer v. Wheeling Traction Co., 72 W. Va. 148, 77 S. E. 908, 48 L. R. A. (N. S.) 683, Ann. Cas. 1915C, 1220, is in some respects similar to the Connecticut case just reviewed, in that it appears that the passenger was acting under the direction of the servant of the defendant company. It is said by Judge Lynch, in the course of his opinion: “While there is conflict in the evidence in some respects, later noticed, it sufficiently appears that the plaintiff, about midnight on the day of the injury, was a passenger on defendant’s traction lines, and as such entitled to transportation from Moundsville to Wheeling, he having paid the necessary fare for the trip. On arrival of the ear at Boggs Run, an intermediate point, those in charge thereof, finding the track submerged by reason of a freshet, directed plaintiff and other passengers to alight and to proceed on foot, by a way designated by the employees, to another of defendant’s cars, then, or soon to arrive, at a point on its lines beyond the obstruction, which would carry them to their destination without further-charge. Finding the way so designated also obstructed, they returned to the first car, when, as the plaintiff seeks to prove, and the defendant to deny, the employees directed them to follow another- course, likewise designated, in order to reach the second car, and that in following the same that plaintiff fell from a high wall- and received the injury for which he seeks recovery. There is no denial that the employees directed the course first designated and abandoned.” The court further said: “The evidence relating to directions by defendant, while not convincing beyond doubt, is, nevertheless, sufficiently clear to sustain the jury’s finding in that respect.” It would seem from these quotations that this branch of the case is
In Wilson v. Detroit United Railways, 167 Mich. 107, 132 N. W. 768, while containing general statements to the effect that a person is a passenger while transferring along a public street, the question of whether or not the plaintiff was a passenger of the company which .injured him was not involved. In that case a blind man, with a transfer, was told by the conductor of the car from which he had alighted that the street was clear to the end of the line, and acting upon this advice he started across the street, but was struck by a car of a connecting line, and recovery was denied on the ground of his contributory negligence.
In Clarke v. Traction Co., 138 N. C. 77, 107 Am. St. Rep. 526, 50 S. E. 518, the plaintiff had a transfer from one car to another. He had one hand on the rail at the rear of the car he was to enter, and one foot on the rear step of the car, and he was injured by being thrown from the car by a sudden start without warning. This state of facts is clearly within the holdings of this court in Va. Trust Co. v. Raymond, 120 Va. 674, 91 S. E. 613, and in Virginia etc., Co. v. Arnold, 121 Va. 204, 92 S. E. 925, the latter holding that a person standing at a proper place to board a,n approaching ear and intending to board and pay his fare, is entitled to the rights of the passenger even before boarding or attempting to board the car.
In Loggins v. Southern Public Utility Co., 181 N. C. 221, 106 S. E. 823, a young boy, holding a transfer, alighted from the car at a regular transfer point. As soon as he alighted he discovered he had left a basket in the car, and went back to get it. When he alighted from the car the
It will be observed that practically all of the foregoing cases belong to one or the other of two classes. Where the passenger is boarding or about to board the car, or is alighting or has just alighted from the car and has not had the opportunity of reaching a place of safety, and in either case is injured either by the car from which he has alighted or the one he is about to board. The other class is where the passenger is within the physical control of the carrier, or the latter has undertaken, directly or indirectly, to direct the movements of the passenger. There is still a third class of cases which we have not noticed—injuries to passengers at the stations or on the platforms of commercial steam railroads. Such are Balt. & O. R. Co. v. Hauer, 60 Md. 449, and Parsons v. New York, etc., R. Co., 113 N. Y. 355, 21 N. E. 145, 3 L. R. A. 683, 10 Am. St. Rep. 450. Such railroads own and have complete control over not only
In Niles v. Boston Electric Ry. Co., 225 Mass. 570, 114 N. E. 730, it appears that the plaintiff held a transfer from a Watertown car to a Newton car, and that when the car on which she was riding arrived at the place of transfer, a number of passengers from Watertown car went forward to take the Newton, which was waiting. The Newton car was waiting about three car-lengths farther, on a direct line. When the Watertown car stopped, the conductor said: “All change here; all change; all change for Newton.” The passengers then alighted, the plaintiff being the last one on the car, and leaving at the rear end. While she was walking along the street in the direction of the Newton car, but after she had been afforded a reasonable opportunity to reach a place of safety, the Watertown car from which she had alighted started, and, as it rounded the corner to enter the barn, struck her. The trial court left it to the jury to determine whether or not the plaintiff was a passenger, to which the defendant excepted. There was a verdict for the plaintiff to which exceptions were alleged, which exceptions were sustained by the Supreme Judicial Court. It is said in the opinion:
“In her declaration, the plaintiff alleged that while transferring from the Watertown to the Newton car, she was a passenger. The presiding judge left it to the jury to decide whether, on the fact shown, she was such, and the defendant’s exceptions to this part of the judge’s charge presents the only question for decision.
“The plaintiff, when injured, was not on the defendant’s premises, nor at a station or platform in use for the purpose of transferring passengers and within the control of the carrier; neither was she under its direction and within its care. She was upon a public highway, where she was exposed to dangers not caused by the defendant. In passing*364 from one car to the other, she could go on either side of the car; she could choose her own way, and her movements were entirely under her own guidance. While so walking on a public highway and in transferring from one car to the other, as a matter of law, she was not a passenger.
“There may be cases where there is evidence to show that the carrier assumes to direct the movement of persons while upon the highway, or where such a duty rests upon it, and where the acts justify the finding that, although upon the highway, they áre in the care of the carrier-, and the relation of passenger and carrier exists. But there are no such facts in the case at bar.
“In Wakely v. Boston Elevated Railway, 217 Mass. 488, 105 N. E. 436, the passenger was injured while in the act of alighting from a car, by stepping into a, depression. In Powers v. Old Colony Street Railway, 201 Mass. 66, 87 N. E. 192, the running of the defendant’s cars was interrupted by the abolition of a grade crossing, and it was necessary for the passengers to leave the cars and go around the obstruction on foot, to take other cars in order to continue their travel. The defendant prepared a way over adjoining land for its patrons to pass. It pointed out this way to them, invited them to use it, and by so doing assumed an obligation to provide reasonably for their safety; it was held that the question of the defendant’s care was for the jury. In the case of Gurley v. Springfield Street Railway, 206 Mass. 534, 92 N. E. 714, the plaintiff was upon the defendant’s premises when injured. In Thompkins v. Boston Elevated Railway, 201 Mass. 114, 87 N. E. 488, the plaintiff stepped from the front vestibule of a crowded surface car to permit other passengers to alight, and was injured by the car starting when he had one foot on the step, ‘and was putting up the other foot.’ It was there held that he was a passenger.
“All these cases are to be distinguished from the one be*365 fore us. In none of them was the injured person a traveler on a public street. In the case at bar there was no assumption of the duty of directing the movements of passengers, nor was there any holding itself out as a carrier of passengers in protecting the safety of those who were traveling from one car to the other.
“If the defendant was guilty of negligence, it was, of course, liable to the plaintiff; but it cannot be held to that high degree of care required of a carrier towards its passengers.”
In Finseth v. City & S. R. Co., 32 Ore. 1, 51 Pac. 84, 39 L. R. A. 517, a woman was transferring from one car to another, on a regular transfer ticket, and was injured while using a temporary passageway erected by the company for the use of its passengers over some water in the street. It was held that, in making the transfer, there was an interruption of the relation of carrier and passenger from the moment of leaving one until the other was reached, and that the duty owing by the carrier as to the passageway was ordinary care.
Chicago, etc., v. Jennings, 190 Ill. 478, 60 N. E. 818, 54 L. R. A. 827, was the case of a commercial steam railroad, which is required to provide safe stations and platforms for its passengers, and the question was whether the plaintiff had become a passenger. He had a commutation ticket in his pocket. It was held that a person with a commutation ticket, crossing the track of a railroad along a street to take a train, but who has not yet reached the station or platform provided for boarding trains, is not a passenger.
In completing this review of the cases relied on by counsel on the one side or the other, we wish to acknowledge our indebtedness to counsel for their excellent briefs and critical examination of the cases, which have greatly lightened our labors and which we have practically followed.
Certain ordinances of the city of Richmond relating to the operation of street cars were introduced in evidence, over the objection of the defendant, and an instruction based thereon was given by the court, which was duly excepted to by the defendant. It is unnecessary to pass on the admissi
The verdict of the jury determined the fact that the plaintiff was not guilty of contributory negligence, and that the damage sustained by her amounted to $7,500.00.
This disposes of all the questions necessary to be decided in this cause, except the question of whether or not the defendant exercised ordinary care for the protection of the plaintiff as a pedestrian in the street, upon which the evidence was conflicting. The verdict of the jury will, therefore, be set aside, and the judgment of the trial court thereon reversed, and, in pursuance of section 6365 of the Code, the case will be remanded to the trial court, with direction to enpanel a jury to determine the following question: Assuming that the plaintiff was a pedestrian in the street- and not a passenger, was free from negligence and sustained damage by reason of the injury in the declaration mentioned to the amount of $7,500.00, was such injury proximately caused by the negligence of the defendant? If this question shall be answered in the affirmative, the trial court shall enter judgment in favor of the plaintiff against the defendant for the sum of $7,500.00, with legal interest thereon from May 14, 1920, till payment; if in the negative, it shall enter judgment for the defendant.
Reversed.