Crowe v. Michigan Central Railroad

Grant, J. (after stating the facts). It was conclusively established that this car was a standard one, of the height and construction such as is in common use upon railroads. It was the standard three-step smoking car. There are also four-step smoking cars; but no such car had been in use upon this road, extending from Jackson to Saginaw, for three or four years.' The difference in height between a three-step and a four-step car is about eight inches. The court should have instructed the jury that the use of this car was not negligence. 2. Counsel for defendant insist that the existence of the hole, with the piece of cinder in the bottom, as described by plaintiff, was not negligence, citing Jackson v. City of Lansing, 121 Mich. 279. The high degree of care required of common carriers of passengers, in transporting them and in the construction and care of their vehicles for that purpose, is not required by the law in the construction and maintenance of its platforms and station grounds. Reasonable care to be determined by the surroundings, the situation, and the probable dangers, is the requirement of the law. 6 Cyc. p. 605; 3 Thompson on Negligence, § 2697; 5 Am. & Eng. Enc. Law (2d Ed.), p. 532; 26 Am. & Eng. Enc. Law (2d Ed.), p. 512; Hiatt v. Railway Co., 96 Iowa, 169; Finseth v. Railway Co., 32 Or. 1 (39 L. R. A. 517); Pennsylvania Co. v. Marion, 104 Ind. 239; Illinois Cent. R. Co. v. Hobbs, 58 Ill. App. 130; Mayor, etc., of New York v. Bailey, 2 Denio (N. Y.), 433; Collins v. Railway Co., 80 Mich. 390; McKone v. Railroad Co., 51 Mich. 601. Counsel for plaintiff concede this to be the rule. Réasonable care is a relative term, to be determined by the surroundings of each case, and the dangers to be apprehended and avoided. St. Louis, etc., R. Co. v. Barnett, 65 Ark. 255. The [696] construction of a platform may be such that a very high degree of care will be required in its construction and maintenance. Such was the case where the platform joined an open trestle. Johns v. Railroad, Co., 39 S. C. 162 (20 L. R. A. 520). We do not think that Jackson v. City of Lansing is applicable. That was a depression worn in a sidewalk to the depth of about three inches. There are depressions and steps in sidewalks which the law recognizes as not negligent, and the risk of which the traveler must assume and guard against. We are not prepared to say that a hole six inches deep and containing a loose obstacle in its bottom would not constitute negligence even in a sidewalk. We think it evidently would constitute ■ negligence when existing in a platform upon which passengers are invited to step when alighting from cars. A passenger has a right to assume that such platform is reasonably safe. He must alight with reasonable expedition. Others may alight before him and partially obstruct his view. He majr be holding his traveling bag or packages, which may also somewhat interfere with his vision. 3. It follows from what has already been said that the plaintiff was not as a matter of law guilty of contributory negligence in stepping as he did from the car. It was a question for the jury to determine from all the surrounding circumstances. 4. Defendant made a motion for a new trial, one of the grounds of which was that the verdict was against the overwhelming weight of the evidence. Whether the jury found the defendant guilty of negligence on account of the height of the steps of the car or the hole in the platform, with a chunk of cinder therein, it is impossible to determine. It is due to the intelligence of the jury to believe that they did not find that a hole such as that described by the plaintiff existed. The overwhelming weight of the evidence is against such claim. Plaintiff alone testified to its existence. ' It is significant that he did not allege in his declaration either the existence of the hole or of the [697] chunk of cinder, but that he stepped upon loose cinders. He never saw the hole before, and he had taken the train and had alighted there many times a year. No such accident had ever occurred before upon this platform. It is not probable that the defendant would permit the existence of so dangerous a place for passengers to alight. Several employés of the defendant and other entirely disinterested witnesses testified that the platform was firm and level, and that there was no hole.. Two disinterested persons standing close to the plaintiff as he alighted, who witnessed the accident, testified that plaintiff stepped upon a loose piece of coal lying upon the platform; and one of them testified that he kicked it away with his foot, saying to the plaintiff: “That is what you stepped on.” The evidence, aside from the plaintiff’s testimony, established beyond a reasonable doubt that this platform was level, solid, and in good condition. The presence of a piece of coal, entirely unaccounted for, was undoubtedly the cause of the plaintiff’s accident. Upon the question of granting new trials, see Brassel v. Railway Co., 101 Mich. 5; Gregory v. Railway, 138 Mich. 368; Whipple v. Railroad Co., 130 Mich. 460. Other questions are raised, but as they are not likely to occur upon a new trial, should one be had, we deem it unnecessary to determine them. Judgment reversed, and new trial ordered. McAlvay, Blair, Montgomery, and Hooker, JJ., concurred.