Robinson v. Little Rock Railway & Electric Co.

Wood, J., (after stating the facts). The court erred in directing a verdict in favor of the appellee. The evidence must be viewed in the most favorable light for appellant, -and when given its strongest probative force in her favor, we are of the opinion that reasonable minds might reach different conclusions on the question as to whether or not the injury to appellant was caused by the negligence of the appellee, as alleged in her complaint. It was therefore a question of fact for the jury to determine. “A common carrier of passengers by street car,” says Mr. Booth, “is required to exercise the highest degree of skill and care which may reasonably be expected of intelligent and prudent persons employed in that business, in view of the instrumentalities employed and the dangers naturally to be apprehended.” Booth on Street Railway Law, § 328, quoted in Little Rock Traction & Electric Co. v. Kimbro, 75 Ark. 211; also, Oliver v. Fort Smith Light & Traction Co., 89 Ark. 229. In the Olver case, supra, the car was running very slowly or had-stopped. ■ The plaintiff was on the running board. He disengaged one hand and held onto the post of the car with the other while paying his fare, and as he was in the act of handing his fare to the conductor, the car started forward with a jerk, causing the crowd on the footboard with the plaintiff to surge back and forth, which crowded him off. In that case, we said: “The appellee, as the evidence tends to show, having slackened the speed of its car, or stopped same, for passengers to get on or off, was negligent if it started the car forward again with a sudden jerk so as to cause its passengers, who were on the footboard and exercising ordinary care for their own safety, to surge back and forth and thus to crowd and throw some of them from the train. ’ ’ In Little Rock Railway & Electric Company v. Doyle, 79 Ark. 378, Doyle was a passenger of the railway company, and as the car approached the point where he wished to debark, he motioned the conductor to stop for him to get off, and the conductor obeyed and slowed the car as plaintiff was advancing to the rear end of the car, -and continued to slacken its speed until he reached the step of the platform. While he was standing on the rear of the car, with his left hand holding the handrail, and when the speed had been slackened so that he could step from the car with safety, and while he was in the act of alighting from the slowly moving car, its speed was suddenly increased, and he was thereby thrown from the car. In that case we held that the company was liable in damages, if the passenger, while in the act of stepping from the slowly moving car at a street crossing, was injured without negligence on his part by reason of the fact that the speed of the car was suddenly increased, whereby he was thrown off and injured. Now, viewing the testimony in its most favorable aspect for the appellant, it tends to show that at a point about a half block from where appellant intended to get off the car, she signalled the conductor to stop for that purpose; that the car was “slowing down,” and that the appellant thought that same was going to stop-. The jury might, have concluded from the “slowing down” of the car after appellant had given the conductor the signal to stop, that the conductor had observed such signal and was obeying the same by causing the speed of the car to be lessened for that purpose; that the appellant, believing that the conductor had observed the signal, and was having the speed of the car slackened in order to stop the same for the purpose of allowing her to debark, arose from her seat as the car was “slowing down” preparatory to leaving the car when the same should stop; that she was standing between the seats with her right hand clutching her bundles and her left hand holding to the back of the seat, near the end of the seat, on the right-hand side, when the car, instead of stopping, as she supposed it would do, increased its speed, thereby throwing the appellant from the same to the pavement about the time the car had rounded the curve. There was testimony to the effect that after the car passed the curve on Wright and Schiller avenues, where the injury occurred, it was down grade, and that the car would run by itself after it got out of the bind of the curve, and if the current were turned on would accelerate its speed, causing the same to start very suddenly; that one situated as the appellant was, two seats back from the center of the car, would be thrown out by a sudden jerk of the car, and that if she had been in front of the center of the ear, it would have thrown her back, but not out of the car. It was a question for the jury, under the evidence, to determine whether the conductor saw the signal of the appellant, and, if so, whether or not he was negligent in failing to give the motorman the signal to stop the car, and whether or not, if he did not observe appellant’s signal, he was negligent, under the circumstances, in failing to observe the same. It was a question for the jury to determine also whether or not the conductor was negligent in failing to observe the situation of the appellant as she was preparing to get off the car at the usual stopping place around the curve, and if he did observe her situation, whether or not he was negligent in not having the motorman stop the car instead of permitting the speed of the car to be suddenly increased. The appellant, by the fall, was rendered insensible. The jury would have been warranted in finding that taking into consideration her position on the car, and the violence with which she fell or was thrown from the car, and the increase of the speed of the car as it rounded the curve, that same must have gone forward with a sudden lurch or jerk, or else with a very rapid whirl around the curve. The facts bring the cause within the doctrine of the above cases. Mr. Nellis, in his work on Street Railways, Vol. 1, § 303, says: “Where a passenger leaves his seat in a car and moves toward the door as the car comes to a stop to enable passengers to alight, such conduct may be considered as a manifestation to the one in charge of the car of an intention and desire to depart from it, and the car should not be started until he has been given a reasonable opportunity to do so.” And the same author says {% 305): “The conductor must be alert to see if any one is alighting or attempting to alight before he starts the car, and his absorption in other duties will aggravate rather than excuse the charge of negligence in starting while a passenger is attempting to alight.” The doctrine announced in our own cases, supra, and by the learned authors on Bailway Law, above quoted, when applied to the facts of this record, makes it a question for the jury to determine whether or not there was negligence in the method of operating the car which resulted in the injury to appellant. To be sure, there was evidence from which the jury might have found that the appellee was not negligent, but, as already stated, this was a question about which reasonable minds might draw different conclusions, which makes it an issue of fact for the jury, and not one of law for the court. The same may be said with reference to the issue of contributory negligence. It can not be said as a matter of law that there was contributory negligence on the part of appellant because she arose as the car began to slow down on approaching the place where she expected to debark, and stood in that position with one hand on the seat and the other holding her bundles, as described in the testimony. In Babcock v. Los Angeles Traction Co., 60 Pac. 780, a passenger took a position in the open space in the front end of a street oar, and when the car approached the street corner at which he desired to alight, he started toward the outside of the car for the purpose of leaving the same. The car was passing around a curve, and on account of its excessive rate of speed the passenger, while not holding with either hand, was thrown from the car and injured. In that case, the Supreme Court of California said: “The court could not declare that it was contributory negligence on his part to start to get off from the car before it had come to a full stop. There is no rule of law which requires a passenger in a street car to retain his seat or other position until the car has actually stopped, and it is a matter of universal observation that thousands, every day, leave their seats to get off before the car has stopped, without sustaining any injury. The claim of the appellant that the plaintiff’s attempt to get off the car while it was rounding the curve was itself a hazardous act, from which his injury resulted, rests upon assuming the existence of other facts which could be determined only by the jury. ’ ’ The doctrine of that casé is sound and is controlling here on the issue' of contributory negligence. The notice to passengers to remain seated until the car stops is a wise precautionary measure which passengers might do well to observe, but the failure of a passenger to comply with such request on the part of the company can not be considered contributory negligence as a matter of law. The failure of appellant to observe and obey such notice is a fact which, taken in connection with all the other facts adduced in this record, should be considered by the jury in determining whether or not she was guilty of contributory negligence. It follows that the judgment must be reversed, and the cause will be remanded for a new trial.