Schultz v. Michigan United Railways Co.

Ostrander, J. (after stating the facts). Confining discussion to the points made by appellant, we find the ■objection to the declaration to be that it does not state by what means the car was suddenly started. It is alleged [673] that the defendant first slackened the speed of the car, and then carelessly and negligently suddenly started and moved the car forward with great unnecessary and unreasonable force and swiftness. The consequences to the plaintiff of such movement, it being alleged that she was careful, are stated. The implication is that defendant’s servant voluntarily controlled the movement of the car. The objection is without force. It is next contended there is no evidence of defendant’s negligence, for which reason a verdict for defendant should have been directed by the court. This contention is, under the peculiar facts of the case, so intimately connected with the subject of plaintiff’s negligence that the subjects may properly be considered together. It is clear that those operating this car did not intend to stop the car at Postumville. They did not operate it, and did not intend to operate it, so as to permit her to alight there. The reasonable, perhaps the necessary, inference to be drawn from the testimony, is that this car was in control of the motorman, was in proper running order upon a proper track, and that the increase of speed complained about was occasioned by the application of power. The movements of cars to and over switches are incidents of railway travel. It is neither negligent to decrease the speed of an electric car in approaching and. passing a switch nor negligent to increase its speed after passing the switch by the application of power or the release of brakes, or both. Ordinarily such operation is regarded as prudent operation. Assuming that none of the passengers upon the car desired to alight at Postumville, the testimony wholly fails to show negligence in its management or its operation. It is only by assuming that because defendant owed to the plaintiff the contract duty to permit her to alight there, and because her position in the car was due to reliance upon a performance of this duty, and the diminished speed, therefore the car was negligently operated, and therefore plaintiff was without fault. This assumption in [674] volves the duty of defendant in the exercise of due care to. anticipate that plaintiff would leave her seat, as passengers often and perhaps commonly do, and approach the door of the car before arriving at the station. It is not claimed that any servant of defendant saw plaintiff during her passage from her seat to the door. Under the circumstances disclosed, it cannot be said, as matter of law, that in passing to the door while the car was in motion the plaintiff was negligent. Bradley v. Railway Co., 94 Mich. 35, 38 (53 N. W. 915); Etson v. Railway Co., 110 Mich. 494, 496 (68 N. W. 298). Neither should it be said that the operation of the car, otherwise proper, was negligent operation because plaintiff did leave her seat. She had the right to remain in her seat until the car had stopped. Defendant was not bound to take notice that she would do what her testimony disclosed she did do. If it were otherwise, the fact of prudent or imprudent operation of cars would depend upon the actions of those individuals who insist upon boarding and leaving a car before it arrives and without regard to the immediate presence or absence of those in charge of the vehicle. I am not able to distinguish the case in principle and Etson v. Railway Co., supra. In that case the car, by a sudden acceleration of speed, moved forward to its stopping place while plaintiff was in the position — out of his seat — assumed by him for the purpose of quickly alighting. In the case at bar, the car did not stop at the regular place for alighting, but, with an increase of speed, ran by the station. The judgment is reversed, and a new trial granted. Grant, Hooker, McAlvay, and Brooke, JJ., concurred with Ostrander, J.