Fuchs v. Dallas Ry. & Terminal Co.

STANFORD, J. This appeal is from the action of the trial court in sustaining a general demurrer to appellants’ petition. Appellants alleged that Mrs. Fuchs, at the time of the injuries, was a single woman engaged hi the profession of nursing; that she boarded one of appellee’s street cars at Ervay and Commerce streets in Dallas, as a passenger, to go to the intersection of Harwood and Beaumont streets; that when she boarded said street car, being a stranger in Dallas and not familiar with the streets and street intersections, she told the motorman in charge of said car that she desired to get off at Beaumont street, a regular and customary stopping place on said line for passengers to alight; that as soon as the conductor called Beaumont street she i^mg the bell, thereby giving the usual and customary signal of her desire to alight at Beaumont street; that said motorman stopped said car, as plaintiff thought, at Beaumont street in response to her signal for her to alight, and plaintiff went forward to the vestibule to alight, as she thought, at Beaumont street, and, as she approached said vestibule to alight, the motorman opened the door, as she understood for her to alight at Beaumont street, and that she, believing the car was at Beaumont street, a regular stopping place to discharge passengers, attempted to alight, and while in the act of alighting from said car she was struck by a rapidly moving motorcycle, and injured. The pleading of appellants, plaintiffs, is lengthy, and pleads the facts resulting in the injury in detail. Giving said pleading that liberal construction as we are required to do, in passing on appellee’s demurrer, the substance and effect of appellants’ pleading is that, where said car stopped, and where appellant was injured while attempting to alight from said car, was not at Beaumont street, as appellant had been led to believe by the acts and conduct of the motorman, hut was near the middle of the block on a switch track to permit other cars to pass; that at Beaumont street, where cars stopped to let passengers get on and off, was a safe place for passengers to alight, in that motor vehicles were prohibited from passing a street car while stopped at a street intersection for such purpose, and the traveling public so understood, but that, where said car stopped near the middle -of the block on the switch track, not for the purpose of allowing passengers to alight, but to allow another street car to pass, was a dangerous place for passengers to alight, in that there was no restraint of traffic as said place, as was fully understood by the public, and that motorcycles, automobiles, etc., passed said street car rapidly while so stopped on the switch track as above set out; that appellee, through its motorman, knew that where said car stopped on the switch was a dangerous place for a passenger to alight by reason of there being no restraint of traffic passing a street car while stopped at said place, and said motorman also knew the intersection of Beaumont street was a safe place for passengers to alight, in that other traffic was prohibited from passing a street car at said place while stopped; that appellee’s said motorman knew appellant wanted to get off •at Beaumont street, and knew appellant was not familiar with the streets in Dallas, and knew that appellant was depending upon him to notify her when the car reached Beaumont street; and that said motorman, by calling out Beaumont street and stopping the car in response, as appellant understood, to the 'usual signal given by her immediately after said street was called, and then, as appellant approached the front of said carj by opening the door for her to alight, etc., by all of said acts, negligently misled and deceived appellant, and negligently induced her to alight at a place he knew was dangerous, and that said motorman knew, or could have known by the exercise of ordinary care, that appellant thought she was getting off at Beaumont street, a safe place to alight, and did not *855 know she was getting off on the switch, a dangerous place to alight; that said motorman, knowing all of said facts, negligently failed to give her any warning, hut expressly invited her to alight at said dangerous place, and while in the act of so doing she was knocked down hy a rapidly passing motorcycle and injured. We think a place where a carrier permits its passengers to alight, under a mistake on the part of the passenger as to the place, may be inherently dangerous by reason of rapidly passing motor vehicles, known to the carrier but not known to the passenger, in the same sense and as truly as if at said place there were ditches, holes in the ground, or other dangerous obstructions. Under ' the allegations in this case, the street car company owed appellant the duty of exercising a high degree of care to deliver her at the place where she requested to be discharged, and to prevent her, under a mistake alleged to have been induced by it, from alighting at a place of greater peril from any cause known to it and unknown to her. The allegations considered as true would support, if not require, a finding by a jury on the trial that such duty had been breached. Missouri, K. & T. R. Co. of Texas v. Cook (Tex. Civ. App.) 166 S. W. 453; St. Louis A. & T. Ry. Co. v. Finley, 79 Tex. 85, 15 S. W. 266; McGovern v. InterUrban R. Co., 136 Iowa, 13, 111 N. W. 412, 13 L. R. A. (N. S.) 476, 125 Am. St. Rep. 215. Clearly, we think, the trial court erred in sustaining a general demurrer to plaintiffs’ petition. The cause is reversed and remanded.