Palmer v. Willamette Val. S. Ry. Co.

HARRIS, J. The plaintiff must necessarily fail unless the defendant violated some duty owing to him and thus caused the injury. The plaintiff insists that — 328 — he occupied the position of a passenger and that it was a question for the jury to determine whether his attempt to board the train was an act of negligence causing or contributing to the "injury. The defendant contends that the plaintiff was properly nonsuited because: (1) He did not possess the rights of a passenger when he attempted to board the train; and (2) even though he be treated as a passenger, nevertheless his attempt to board a moving train was negligence per se. 1-3. Stating the rule in general terms, it may be said that a person places himself in the position of an intending passenger when he enters upon a carrier’s premises with the bona fide intention of becoming a passenger and awaits the arrival of his train at a proper place, in a proper manner and within a reasonable time before the arrival of such train: Du Bose v. Atlantic Coast Line R. Co., 81 S. C. 271 (62 S. E. 255); Abbot v. Oregon R. Co., 46 Or. 549, 561 (80 Pac. 1012, 114 Am. St. Rep. 885, 7 Ann. Cas. 961, 1 L. R. A. (N. S.) 851); 10 C. J. 613. It may be assumed, therefore, that the plaintiff acquired the rights of an intending passenger when he went to the depot for the purpose of taking the train to Ogle. The carrier had provided a depot and grounds beside the track where intending passengers could await the arrival of trains or board them upon their arrival; and so long as the plaintiff was at or in the depot or. on the grounds which the carrier had provided for passengers he was entitled to the care due to intending passengers. Among the duties owing from the carrier to intending passengers is the duty to stop all trains, scheduled to stop, at designated places, and therefore it became the duty of defendant to stop its train at the usual stopping place in Molalla; and hav — 329 — ing stopped its train it was incumbent upon the carrier to keep the cars standing for such time as was reasonably necessary to enable intending passengers, in the exercise of reasonable diligence on their part, to board the train. However, after having waited a reasonable time for intending passengers to board the train, a carrier is not as a general rule obliged to wait longer for any belated person: Mitchell v. Augusta & A. R. Co., 87 S. C. 375 (69 S. E. 664, 31 L. R. A. (N. S.) 442). The plaintiff does not claim the train was not stopped sufficiently long to enable intending passengers who were at the depot to board the train and consequently it must be assumed that the carrier stopped the train at the depot long enough to permit intending passengers in the exercise of reasonable diligence to get aboard. The plaintiff argues that the carrier agreed to wait for him “a minute” if he did not make the minute ‘ ‘ too long. ’ ’ According to the testimony of the plaintiff he could have delivered the money to Cole and returned to the depot where the train was standing within 18 or 20 seconds from the time he spoke to the brakeman, and hence it will be assumed that the carrier did not wait as long as the brakeman said he would wait. It must be remembered that there is no evidence to show that the brakeman or any member of the crew knew why the plaintiff wished the brakeman to wait or what he wished to do or where he wished to go or that he had gone anywhere. It will be recalled, too, that the track leaves the depot on a curve, and, while there is no evidence to show the degree of the curve or whether a person standing on the depot platform could have seen the plaintiff when at the county road, it does appear from the evidence that although the plaintiff was on the same side of — 330 — the track as the depot, he was on the outer and not on the inner side of the curve. 4. "While waiting at the depot a standing train serves as an invitation to all intending passengers to board it, and the invitation carries with it an assurance that the passenger may board the train in safety: Jones v. New York Central & H. R. R. R. Co., 156 N. Y. 187 (50 N. E. 856, 41 L. R. A. 490); but starting the train ordinarily operates as a withdrawal of the invitation: Tompkins v. Portland Ry., L. & P. Co., 77 Or. 174, 179 (150 Pac. 758); Chaffee v. Old Colony R. R. Co., 17 R. I. 658 (24 Atl. 141); 2 White on Personal Injuries on Eailroads, § 783. When therefore defendant started its train from the depot it withdrew its invitation to board the train. There is an irreconcilable conflict between the authorities upon the question as to whether it is negligence as a matter of law for an intending passenger to board a moving train. In some jurisdictions it is held that it is negligence per se to attempt to board a moving train, while in other jurisdictions it is a question for the jury unless the speed was so great as to make the attempt obviously dangerous. The presence or absence of an invitation or direction given by a member of the train crew to the intending passenger to board a moving train, and the presence or absence of knowledge or consent upon the part of the carrier are frequently important and sometimes controlling factors; and ofttimes the failure of the train to stop a reasonable time is a material element; 5 E. C. L. 36; Hunter v. Cooperstown & S. V. R. Co., 112 N. Y. 371 (19 N. E. 820, 8 Am. St. Rep. 752, 2 L. R. A. 832); Kansas & G. S. L. Ry. Co. v. Dorough, 72 Tex. 108; Distler v. Long Island R. Co., 151 N. Y. 424 (45 N. E. 937, 35 L. R. A. 762); Hoylman v. Kanawha & M. R. Co., 65 — 331 — W. Va. 264 (64 S. E. 536, 17 Ann. Cas. 1149, 22 L. R. A. (N. S.) 741); Atchison, T. & S. F. Ry. Co. v. Holloway, 71 Kan. 1 (80 Pac. 31, 114 Am. St. Rep. 462); Carr v. Eel River & E. R. Co., 98 Cal. 366 (33 Pac. 213, 21 L. R. A. 354); Browne v. Raleigh & G. R. Co., 108 N. C. 34 (12 S. E. 958); Gannon v. Chicago, R. I. & P. Ry., Co., 141 Iowa, 37 (117 N. W. 966, 23 L. R. A. (N. S.) 1061). However, in the instant case it will not be necessary to determine whether it would have been negligence per se for the plaintiff to have attempted to board a moving train when in front of the depot and at a place provided for passengers. 5, 6. Although the plaintiff became an intending passenger when he entered upon the depot grounds for the purpose of taking the train to Ogle, yet it does not follow that he was necessarily entitled to the rights of a passenger at all times afterwards. It is not the rule that once a passenger always a passenger: Du Bose v. Atlantic Coast Line R. Co., 81 S. C. 271 (62 S. E. 255); 10 C. J. 612. The plaintiff went upon the county road and while there his status as a passenger was at least suspended. When he stood upon the sidewalk he was not in a place provided by the carrier for the use of intending passengers and while he stood there he was not in a place where he could claim the rights of an intending passenger, and consequently the carrier was not under any obligation to stop or to slow the train at the crossing, even though it be conceded that the carrier violated its contract when it refused to wait “a minute” at the depot. If the rights of an intending passenger, which were acquired by the plaintiff when he entered upon the depot premises, did not follow him when he left those premises and did not remain with him while standing upon the sidewalk, then he cannot successfully claim the rights of — 332 — an intending passenger unless waving Ms arm to the motorman and the nod of the latter reelothed Mm with those rights. With the single exception of the motorman no member- of the train crew either saw the defendant while he was in the county road or on the sidewalk, or even knew that he was there and, hence, the status of passenger was not again resumed unless it was created by the acts of the plaintiff and the motorman. Although it was using electric power the defendant was operating a train with scheduled stops and was governed by the rules applicable to steam trains: 10 C. J. 945; 2 Shear-man & Redfield on Neg. (6 ed.), 1441. 7-9. The county road was not a regular stopping place nor even a flag station. It is true that the carrier had stopped the train at the road as many as six times to permit passengers to board or alight from the train, but those acts of accommodation did not make the highway a stopping place when a depot was maintained 135 feet from the crossing. A carrier is not bound to receive passengers otherwise than at places provided for that purpose: Haase v. Oregon Ry. & N. Co., 19 Or. 354, 361 (24 Pac. 238). The plaintiff could not by the mere giving of a signal, convert the county road into a passenger station. The act of signaling to the motorman did not confer the rights of a passenger upon the plaintiff. The plaintiff admits that the train did not slacken its speed and that from the time he first saw it when he turned around in the road it was traveling between three and five miles an hour; and he also admits that he did not expect the train to stop. 10. The plaintiff contends that he became entitled to the rights of a passenger when the motorman acknowledged his signal. But there is no evidence that the — 333 — motorman acknowledged Ms signal or in any way indicated an intention to accept the plaintiff as a passenger. The most the motorman did was to indicate that he knew the plaintiff just as he had done on half a dozen previous occasions when the train passed the plaintiff, for in the language of the plaintiff himself the motorman “nodded at me as though he knew me.” The plaintiff was not invited to board the train at the crossing. The carrier did not expressly or impliedly contract to receive him as a passenger at the crossing. There is no evidence to show that any member of the train crew saw the plaintiff attempt to board the train, or knew that he intended to board the train, or by word or act indicated an intention to accept Mm as a passenger at the county road; and, therefore, the defendant is not liable for the injury suffered by the plaintiff: Baltimore Traction Co. v. State, 78 Md. 409 (28 Atl. 397); Garvey v. Rhode Island Co., 26 R. I. 80 (58 Atl. 456); Georgia & F. R. Go. v. Tapley, 144 Ga. 453 (87 S. E. 473, L. R. A. 1916C, 1020); Mitchell v. Augusta & A. R. Co., 87 S. C. 375 (69 S. E. 664, 31 L. R. A. (N. S.) 442); 10 C. J. 617. The judgment of the Circuit Court is correct, and it is affirmed. Affirmed. McBride, C. J., Benson and Burnett, JJ., concur.