Gaines v. Ogden Rapid Transit Co.

141 P. 110, 44 Utah 512, 1914 Utah LEXIS 52

• Court: Utah Supreme Court
• Decided: May 8, 1914
• Docket: No. 2496
• Status: Published

Opinions

FRICK, J.

Tbe plaintiff, respondent here, brought this action against the defendant, appellant in this court, to recover damages for personal injuries which it is alleged he suffered while a passenger on one of appellant’s street cars through its negligence. The appellant denied negligence on its part, and pleaded contributory negligence on the part of respondent. A trial to a jury resulted in a. verdict in favor of respondent, upon which judgment was duly entered, to reverse which this appeal is prosecuted.

1,2 The controlling facts, in substance, are: That on the 6th day of June, 1911, the respondent was engaged in t’he saloon business in Ogden, Utah, and usually closed his saloon -at midnight, and immediately after doing so he usually hoarded one of appellant’s cars at the Dnion Depot, which car was making its last trip for the night, and would thus go to the car barn, about two blocks from respondent’s home, which distance he usually walked after reaching the ear barn upon the car aforesaid. On the night in question respondent closed his saloon at midnight and went to the Dnion Depot and there boarded _one of appellant’s cars, which he supposed was going to the car bam as usual. After the car had proceeded east for some distance, it turned north on Washington Avenue toward the car barn, but when it arrived at a certain street corner, instead of continuing-north toward the car barn, the car turned east again to go upon what is called “the hill” or “the bench.” When the car turned up the hill, the respondent at once spoke to the conductor, who was on the rear platform of the car. Respondent said: “If you are going to make another trip on the bench give me a transfer and I will catch the Washington Avenue car right back of us. He (the conductor) said, ‘All right.’ ” The car in the meantime was proceeding up grade, and, as the respondent puts it, was “picking up a little speed right along,” but going at a “slow rate of speed.” The conductor prepared and gave respondent the transfer, and, when handing it to him, said: “You will have to hurry now or you won’t get the Washington Avenue car.” Respondent then asked the conductor: “Aren’t you going to slow up so a fellow can get off ?” The conductor answered: “This car isn’t going, very fast; you can make it all right.” It seems the Washington Avenue car spoken of was following immediately behind the car respondent was on. The Washington Avenue car, it seems, was going north toward the ear barn, and for that reason appellant wanted a transfer to take that car; all of which the- conductor knew. There was a doctor with the respondent at the time who saw all that happened, and apparently heard all that was said, and, as he seems to be a disinterested witness, we shall state what happened as he saw it in his own words. lie testified:

“Q. Will you describe what you saw and heard just as the car was leaving Washington .avenue? A. Well, as we started out, Mr. Gaines (respondent) got on the rear end. As we went around the curve he said to the conductor, ‘I thought this car was going to the barn,’ and the conductor said, ‘No; it is not; not this trip.’ Well, he (respondent) sard, ‘Give me a transfer and I’ll catch the Washington Avenue car,’ and at the same time the car kept on going, and Mr. Gaines got down, and it was going up the hill, and while he was standing there, the conductor was punching the transfer, and he (respondent) says, ‘Aren’t you going to slow down, to let me off V He (tbe conductor) said, ‘We are not running. fast; you can make it,’ and gave bim (tbe motorman) one bell as we started out. He got up around tbe curve a little ways, and be (respondent) asked bim (tbe conductor) again if be was going to stop, and be reached up and pulled tbe cord, and tbe motorman shut off tbe current, and about tbe same time turned it on again, and Mr. Gaines went off bis feet off tbe step onto bis bead. "... He (tbe conductor) sounded one bell just before be banded bim (respondent) tbe transfer. He sounded two just as be banded bim tbe transfer.”

Tbe witness also said that at tbe time tbe bell signals were given respondent was standing on tbe “bottom step” of tbe car and that tbe bells were given “one right after tbe other.” Tbe witness further said “tbe ear gave a lurch,” and tbe respondent got off “when tbe lurch came.”

Tbe respondent testified:

“Well, when I got tbe transfer and be (tbe conductor) said it wasn’t going very fast, that I could make it all right I made my step for tbe ground. Just as I was going to make tbe step, tbe conductor gave tbe motorman a couple of bells, and as I was going to make tbe step I could feel tbe car jerk from under me like. . . . Well, it kind of overset my balance as I was going to step. Q. Just describe that jerk or lunge of tbe car when you fell. A. Well, of course, tbe car was moving along slowly, and then this lunge came and kind of threw me off my balance ás I was getting off the step.”

It also appeared that, in tbe judgment of tbe respondent, tbe car at tbe time was moving about five or six miles an hour.

Tbe motorman testified that tbe ear was moving about five miles an hour; that one bell was a signal to stop* the car and two bells was an order to go ahead; that in going up tbe bill at tbe time in question one bell was sounded, which was immediately followed by two bells; that, although one bell was a signal to stop tbe car, yet bis orders were not to stop tbe car between stopping places, but to proceed notwitbstand-ing one bell was sounded; that he was a student operator at the time, and had only been operating the car for a few days, and when one bell was sounded he did not at once recall his orders in the premises, so he attempted to obey the signal, and in doing so threw off the current, but immediately after having done so, and at about the time of the second bell, he remembered his orders, and turned the current on again; that turning off the current caused the car in moving up the hill to slacken speed, while in turning it on again it caused the car to move forward with more or less of a quick movement, as the witness put it, with “more or less of a jerk, I don’t know how much.”

It also appeared from the respondent’s evidence that the street was dark at the point where he attempted to alight. Some of the witnesses also testified that the car had reached a point “approximately seventy-five feet” from the preceding “stopping place” when respondent got off the car.

The testimony of the conductor and other witnesses who testified on behalf of the appellant in some respects conflicted with that of respondent and the doctor. In view that we are prohibited from passing upon the weight of the evidence or the credibility of the witnesses, it would be useless for us to set forth the evidence further. We have set forth some of the evidence produced on behalf of respondent for the sole purpose of showing that there is substantial evidence in support of the verdict and judgment. Such being the case, we may not interfere with the finding of the jury. For the reason just stated, we shall not pause to discuss the question of negligence on the part of appellant. In our opinion, in view of all the evidence, the question was clearly one of fact for the jury.

3 Counsel, however, also strenuously insist that;, although we shall hold that the question of appellant’s negligence was for the jury, yet, in view that respondent alighted from the car at a time when it was moving about five or six miles an hour and in the darkness of the night, his conduct constituted negligence per se — that is, negligence as a matter of law — and therefore the court erred in submitting that question to tbe jury. We have been referred to some cases which seem to support counsel’s contention. Quite a number of the cases cited, however, refer to instances where passengers alighted from steam railroad trains while in motion. There are a few, however, which refer to street car accidents to passengers who alighted from the cars while in motion. It is now well settled, we think, that the courts do not enforce the rule with respect to going upon or alighting from street cars while in motion with the same degree of strictness that it is enforced with respect to going upon or alighting from steam railroad trains while in motion. See, on this point, Booth on Street Railways, section 336. Moreover, the great weight of modern authority is to the effect that, unless the speed of the street car is such that no prudent and careful person would attempt to board it or alight from it, the question of whether it is negligence on the part of the passenger to do so is ordinarily one of fact for the jury, to be determined from all the facts and circumstances surrounding the passenger at the time- This court is eom mitted to that doctrine. In Paul v. Railroad, 30 Utah, at page 47, 83 Pac. at page 564, in referring to an instruction which was excepted to by the passenger, Mr. Justice Straup states the rule applicable to a street ear in motion thus:

“Appellant cannot complain of paragraph five as far as it went, but it did not go far enough. The defendant [street car company] would not only he liable under the facts therein stated, but likewise would be liable if, the car having slowed down in response to her notice of a desire to leave the same, plaintiff attempted to alight, and the speed and the surrounding conditions were such that the jury found it was not negligence to do so, and, while making such effort to alight, the speed of the car was suddenly increased, by reason whereof she was thrown, and injured. Under the facts in the case, it was not only the province of the jury to determine whether, the act of the plaintiff in attempting to alight was the proximate cause of the injury, but also to determine whether it was an act of negligence.”

Nellis in bis work on Street Bailroad Accident Law, p. 190, says:

“If a passenger attempts to leave a moving car running at a high rate of speed, the attempt will he so obviously dangerous that he cannot recover for an injury occasioned thereby. It cannot be said, however, as a matter of law, that it is negligent to alight from a moving car or to board it while in motion. The circumstances attending the act and the speed of the car mahe it a question of fact for the jury.”

As pointed out by the Supreme Court of Nebraska in Bendekovich v. Omaha & C. B. St. R. Co., 80 Neb. 174, 113 N. W. 988, in tbis day of universal street car travel there are thousands of instances in every large city every day where men go upon and alight from street cars while in motion, and therefore to say that the act of doing so “is at all times and in all circumstances negligence par se, or in law, would be to say that a universal custom of intelligent and prudent men is such, and, as it seems to us, would be to utter an absurdity.” It is accordingly held in that case that whether a passenger is negligent or not in alighting from a moving car where the speed is not such as to make the attempt almost reckless is ordinarily a question for the jury. In a note to the case of Heinze v. Interurban R. Co., 21 L. R. A. (N. S.) 715, the editor sums up the result of the decisions in the following words:

“Tbe great weight of authority supports the proposition that for a street car passenger to go upon the platform or step of the car' for the purpose of alighting, after he has requested the conductor to stop the car, or the latter has signaled it to stop, and the speed of the car has begun to decrease, is not such negligence as will preclude a recovery for injuries sustained by being thrown from his position by some negligent act of those operating the car. Under such circumstances, therefore, the question of the passenger’s negligence is for the jury.”

The Supreme Court of Alabama, in Watkins v. Birmingham, Ry. & El. Co., 120 Ala. 151, 24 South. 394, 43 L. R. A. 299, states the rule as follows:

“While there are some eases which hold that the act of the passenger in voluntarily leaving a car while it is in motion constitutes contributory negligence, the better doctrine, and that sustained by the great weight of authority, is that such conduct on the part of the passenger is not negligence per $,e. There may be, it is true, exceptional circumstances attending the attempt thus to alight, such as the great speed of the train, the age or infirmity of the passenger, or his being incumbered with bundles or children, or other facts which render the attempt so obviously dangerous that the court may, where the testimony is undisputed, declare, as a matter of law, that the passenger’s conduct was reckless and negligent. But ordinarily it is for the jury to say whether he acted as a reasonably cautious and prudent man would act under like circumstances.”

But we refrain from quoting further. The following authorities, among others, will be found to support the foregoing statements: Booth on Street Railways, section 337; Babcock v. Los Angeles Tr. Co., 128 Cal. 173, 60 Pac. 780; Wyatt v. Citizens’ Ry. Co., 62 Mo. 408; Cronan v. Crescent City Ry. Co., 49 La. Ann. 65, 21 South. 163; Springfield Consol. Ry. Co. v. Hoeffner, 175 Ill. 634, 51 N. E. 884.

4 According to the testimony of the respondent, the doctor, and the motorman, the car made a sudden “lurch” or “jerk.” This occurred at the very moment respondent was in the act of alighting therefrom. It seems to us that the jurors were thus justified in finding that respondent’s fall was caused by the sudden “lurching” or “jerking” of the car, and that he could have alighted therefrom in safety had the car merely moved forward in the regular and ordinary way, although it was moving at the rate of speed testified to by the witnesses. The jury thus could have found, in case they found against appellant, that respondent was caused to fall from the car by reason of the sudden “lurch” or “jerk.” In other words, that it was appellant’s act in operating the car that caused respondent to fall, and not his act in making the attempt or in alighting from the car while in motion. In arriving at the foregoing conclusion, we are not unmindful of appellant’s theory that it was respondent’s act in alighting from the car while in motion, and not the “lurch” or “jerk” of the car, that must be looked to as the real or proximate cause of respondents fall. Counsel, in their brief, in speaking of respondent’s conduct in alighting from the car, say:

“His mind, was made tip. His purpose was set. His acts indicated bis definite intention to carry out bis purpose. Tbe jerk of tbe car was but an incident that occurred in tbe course of bis risky, dangerous, and improper purpose or intention.”

We cannot agree with counsel’s conclusions that it was respondent’s intention to alight, which is tbe controlling factor in producing tbe accident. Let it be conceded that respondent bad fully made up bis mind to alight from the car while it was moving along up tbe bill at tbe rate of speed testified to. It, however, does not at all follow that, if be had alighted from tbe car while moving in that manner and without tbe sudden “lurch” or “jerk,” be would not have alighted in perfect safety. That is one of tbe elements in tbe case upon which reasonable minds may well differ. Tbe respondent, in attempting to alight from tbe car, bad a right to assume that appellant would do nothing which would increase tbe hazard, if any, of alighting therefrom. If, therefore, it was not dangerous per se, or negligent as matter of law, to attempt to alight from the car when it was moving along regularly, the jury had a right to find that it was the sudden “jerk” or “lunch” of the car that caused respondent to fall, and not the mere regular movement forward. Appellant thus greatly increased, if it did not exclusively produce, the hazard of alighting, which respondent was not bound to anticipate. Indeed, the jury were justified in finding that, although respondent attempted to alight from the moving car, yet his falling to the ground was entirely due to appellants unexpected act of causing the car to “lurch” or “jerk.” Hespondent’s intention was thus not the controlling factor, as contended for by appellant. In this connection it should not be overlooked that this ease is not an ordinary case where a passenger attempts to alight from a moving car after it had passed the usual stopping place. In this case the car, contrary to the expectations of the passenger, changed its usual course, and, instead of proceeding to the car barn, turned up the hill. Just as soon as the passenger discovered the fact, he at once spoke to the conductor who was in charge of the ear, and the conductor understood the precise situation the passenger was in, and that he desired to board the car which followed the one he was on. The conductor assented to all the passenger did, but, instead of arresting the speed of the car to permit the passenger to alight, the conductor encouraged the passenger to do so while the car was in motion, and practically advised him that it was safe to do so. In view of all the circumstances, therefore, the question of negligence was one peculiarly within the province of the jury, and not within that of the court.

Nor can appellant’s objections urgedjo the charge of the court be sustained. While it is true that the charge contains some repetitions of the statements made by some of respondent’s witnesses, and also contains some repetitions of other matters, yet no- attempt whatever was made by the court to invade the province of the jury. Indeed, some of the repetitions clearly indicate that they were made for the express purpose of not doing so. The charge covers every phase of the case, and, after a very careful scrutiny, we find nothing which could have misled the jury, nor anything by which they were misdirected with respect to the law applicable to the evidence adduced. Nor did the court commit any prejudicial error in refusing any of the requests offered by appellant.

The judgment is therefore affirmed, with costs.

STNAUP, I., concurs.