Oddy v. West End Street Railway Co.

Barker, J. These actions are on account of injuries received by a passenger as she was leaving a street car by her coming into collision with a hose cart rapidly passing in the street. The car was upon one of two parallel sets of tracks and its rear platform was furnished with gates the one on the side next the other track being closed. The car stopped to receive and deliver passengers only akdesignated points. After it had passed the last stopping place before that at which the passenger intended to [347] leave the conductor opened the door from the rear platform, put his head into the car and called out the name of the next stopping place. The passenger thereupon gave him a signal which indicated that she wished to leave the car at the stopping place the name of which had just been called, and saw that.the conductor appreciated her signal. Presently the car slowed up and stopped. As it was slowing up the plaintiff rose from her seat and walked to the rear door reaching the platform as the car came to a standstill and then going down the steps and placing herself in the street, either stepping into the wheel of a rapidly passing hose cart, as one eye-witness who was also a passenger upon the car testified, or being struck by the hose cart as she was leaving the car. The car had not in fact arrived at the stopping place the name of which had been called by the conductor, nor was it in fact stopped in consequence of any order or signal given by the conductor, nor for the purpose of delivering or receiving passengers, but was stopped by the motorman because he saw approaching a fire engine and a hose cart, which were being run to a fire, and were coming toward the car at a high rate of speed in the direction opposite to that in which the car was moving. This stoppage was in accordance with a reasonable practice, in order to avoid collisions between moving cars and fire apparatus driven at high rates of speed. In this instance the hose cart approached upon the same tracks on which the car was. When near the car the hose cart turned to the left and came very near the car. The fire engine passed first, upon the other side, but with a very short interval of time. When the car began to slow up the conductor, being on the rear platform, ascertained that the fire apparatus was approaching. He looked over the closed gate and saw the engine pass, and he continued to look in the same direction to ascertain when the hose cart should have passed. He did not see the passenger as she came from the car to the platform, nor until his attention was called to the other side by the passing of the hose cart when he saw her on the ground. The passenger did not know that there was an alarm of fire, or that fire apparatus was approaching, and the jury might infer that when she rose as the car was slowing up she supposed that' it was preparing to stop at the stopping place the name of which had been [348] called out. She testified that she heard the sound of a gong as she was getting up and walking toward the platform, but that she thought it was a car coming in the opposite direction, and that she had never before been on a car when it stopped to let fire apparatus go by. The time was eight o’clock of the evening of January 7,1897. The passenger was fifty-two years of age and there is no contention that she was not in full possession of her mental and bodily powers. At the close of the evidence Mr. Justice Blodgett ordered verdicts for the defendant, counsel agreeing that if this court should hold that the plaintiffs were entitled to go to the jury judgment should be entered for the passenger in the sum of $2,400 without costs, and for her husband in the sum of $100 without costs. The cases are here upon the report of the presiding justice, which purports to state all of the material testimony. The passenger herself testified that'the car had come to a stop before she reached the platform ; that after she got to the platform she was giving her whole attention to getting off the car; that she was looking right ahead and did not see anything in the street; that she thought she took pains to find out whether anything was coming to the right or to the left on the street; that she did not know that she looked both ways or that she turned her head, but that she could see a. little to the right and a little to the left without turning her head, and that she was looking to see her way clear to get out of the car and thought it was clear. She was familiar with the street on which the car was, and had lived in the neighborhood eight years before, and she testified that the buildings on the street opposite the place of the accident were about the same at the time of the accident as eight years before. She further testified that she did not remember how dark it was, and that she did not think it was so dark that a person standing on the front of the car could not have seen an approaching hose wagon perfectly well. We are of opinion that it would not be competent to find the defendant guilty of negligence upon the evidence. It was right for the motorman to stop the car where he did upon the approach of the fire apparatus. It is not customary or necessary to notify passengers of the cause of a stoppage occasioned by an obstruc [349] tian in the street. The conductor, while bound to give the passenger an opportunity to leave at the stopping place which she had indicated to him as the point where she wished her journey to end, was not obliged to inform her that that place had not been reached, unless he knew that she was attempting to leave under a misapprehension, and it was his duty to attend to the very things to which he was attending, namely, to ascertain when the obstruction to the progress of the car should cease by the passing of the approaching fire apparatus. Street car companies carrying passengers in ordinary public streets or high.ways are not negligent in not providing means for warning passengers about to leave a car of the danger of-colliding with or of being run over by other vehicles in the street. The risk of being hurt by such vehicles is the risk of the passenger and not that of the carrier. It is not a danger against which the carrier is bound to protect the passenger or to give him warning. The cases relied upon by the plaintiffs are none of them cases in which the danger encountered by the passenger upon leaving a street car was merely that of collision with some vehicle not owned or controlled by the carrier and lawfully using the street. In Bigelow v. West End Street Railway, 161 Mass. 393, the danger was from an excavation or depression at the stopping place, as was the case also in Richmond City Railway v. Scott, 86 Va. 902. Floytrup v. Boston & Maine Railroad, 163 Mass. 152, was the case of a passenger upon a steam railroad having its own roadbed and passenger stations, and so was Treat v. Boston & Lowell Railroad, 131 Mass. 371. In Fleck v. Union Railway, 134 Mass. 480, the passenger was jolted and thrown off from a slippery platform. Carland v. Young, 119 Mass. 150, and Murphy v. Armstrong Transfer Co. 167 Mass. 199, were the usual cases of foot travellers crossing streets upon which ordinary teams were approaching, the foot traveller being struck after he had gone some distance, and not stepping into the wheel from the curbing or colliding with the vehicle before he had both feet in the street. In Maverick v. Eighth Avenue Railroad, 36 N. Y. 378, the passenger struck by a ladder on a hook and ladder carriage running to a fire was still upon the platform of the street car, and was [350] being hurried from the car by the conductor with his hands upon her shoulders. See Chicago West Division Railway v. Mills, 91 Ill. 39, 42, where it is said that “ Passengers, as a matter of prudence, before attempting to get off, should know that the stoppage was for the purpose of letting them get off.” See also Augusta Railway v. Glover, 92 Ga. 132,147, for a statement that “ no duty touching the selection of a safe place for landing passengers is operative on any stop made on account of an obstruction upon the track.” Judgments for the defendant on the verdicts.