Ottinger v. Detroit United Railway

Hooker, J. The plaintiff, a married woman, in company with another woman, and plaintiff’s husband, boarded one of defendant’s street cars. The car started before she secured a seat; the car being well filled and unoccupied seats few. She caused her lady friend, a guest, to take the first vacant seat she came to, and con107 tinned forward in the oar. As she stood holding onto a seat, a passenger moved to make room for her, and she turned to sit down. At that moment the brake was put on to stop the car at a switch, and she fell forward and was injured. She said that the car stopped so suddenly that her hold on the seat was broken, and she was thrown forward against the corner of a seat that she was holding, because the car was shaking so that she could not balance herself. The car was running very fast, though, as she knew, it had but half a block to run before making the required stop. She testified that the stop was sudden, without slowing down. The witnesses agree that the car was stopped abruptly, and that this caused her to fall. The circuit judge directed a verdict for the defendant upon the ground that negligence was not. shown, and plaintiff has appealed. Counsel for the plaintiff rely upon the cases of Beattie v. Railway, 158 Mich. 243 (122 N. W. 557), and Howell v. Railway Co., 136 Mich. 432 (99 N. W. 406); but we think they are not conclusive of this question. The former related to the starting of a car before the passenger was upon the car, the latter to the failure of brakes to work. It is a well-known fact that steam and street cars are not so stopped that the standing passengers can avoid the tendency to fall without effort, and the same is true when the car starts. Not only is the making of time prohibitive of such deliberate starting of heavy vehicles as to avoid this, but the variation in the working of brakes prevents absolute uniformity in stopping. The general rule adopted by the courts is that street railway companies are not required to defer starting cars until all passengers are seated, and that a train or street car “may be started without waiting for a passenger to reach a seat after entering a vehicle, unless there is some special and apparent reason to the contrary.” In the case of Louisville, etc., R. Co. v. Hale, 102 Ky. 600 (44 S. W. 213, 42 L. R. A. 293), this rule was adhered to in [108] the case of a fleshy woman, incumbered with a number of children, when she had an escort with her. For the rule as to steam cars, see Yarnell v. Railroad Co., 113 Mo. 570 (21 S. W. 1, 18 L. R. A. 599); Louisville, etc., R. Co. v. Hale, supra. There is quite as much justice in the application of the rule to street cars which are usually started as soon as the passengers enter, and in which, for the want of seats, choice, or other reasons, passengers frequently ride standing in the car or on the platform. So common and unavoidable is the overcrowding of street cars that straps are usually provided, and, if these cars could not lawfully be started until all passengers were seated, or if acceleration of and checking speed could not be prompt, the efficiency of such cars would be seriously impaired. In Massachusetts it was held that a street car company owes no duty to a woman passenger, who is apparently strong and healthy, to wait after she has entered the body of the car, until she is seated, before giving the signal to start, or to notify her that it is about to give such signal. Weeks v. Railway Co., 190 Mass. 563 (77 N. E. 654). In Herbich v. Railway Co., 65 N. J. Law, 381 (47 Atl. 427), it was held error to refuse to charge that the starting of a car before a passenger is seated is not negligence. This was in the case of injury to a young child thrown from a car after she and her mother had entered it. The rule was applied to a man 70 years old and weighing 220 pounds who was injured while passing from the platform to a seat. Sharp v. Railroad Co., 111 La. 395 (35 South. 614, 100 Am. St. Rep. 488). The evidence indicates that the plaintiff’s equilibrium was lost by reason of the sudden slowing of the car for its stop. There is no evidence that justifies the belief that it was an unusually sudden stop, or that there was any reason for plaintiff’s falling, but her momentum, which naturally impelled her forward as the car slowed down, and that happens to a greater or less degree every time a car is stopped. No one else in the car seems to have suffered [109] from it. In case of necessity, a motorman must stop his car as speedily as possible, for the unforeseen is ever confronting him. Sudden stops are one of the ordinary conditions of trolley travel and are to be expected and guarded against by the passengers. The motorman cannot know what his passengers are doing and whether they are standing or walking in the car or not, and he must devote his attention to the management of his car in the ordinary way. In Quick v. Railway, 143 Mich. 443 (107 N. W. 104), we held that a jerk of a car sufficient to throw one standing on the platform to the street was only an incident to the ordinary running of electric cars, and sustained a directed verdict. The same should be said of this stopping of the car. See, also, Bradley v. Railway Co., 94 Mich. 35 (53 N. W. 915); Etson v. Railway Co., 110 Mich. 494 (68 N. W. 298); Schultz v. Railways Co., 158 Mich. 665 (123 N. W. 594, 27 L. R. A. [N. S.] 503); McCauley v. Railway Co., 169 Mass. 301 (47 N. E. 1006). In Holland v. Railway Co., 155 Mass. 387 (29 N. E. 622), a passenger was thrown from a car by its up and down motion. The court held that there was nothing extraordinary in the motion, although it was so marked as to throw another passenger against the driver. See, also, Stewart v. Railroad Co., 146 Mass. 605 (16 N. E. 466). It is the normal condition, in rapidly moving cars, that it is difficult for passengers to keep their feet, especially when the cars are stopped or started. In the language of McSherry, J„, in Baltimore, etc., Turnpike Road v. Cason, 72 Md. 381 (20 Atl. 113): “It is notorious that just such motions as the appellee described, are of frequent and common occurrence in the running of street cars. ‘ Judges cannot denude themselves of the knowledge of the incidents of railway traveling, which is common to us all.’” [110] In Faul v. Railway Co., 70 N. J. Law, 795 (59 Atl. 148), it was said: “ The controversy was therefore narrowed to the alleged negligent conduct of the motorman in releasing his brake or in turning on the power, or both, after leaving the switch where the car had stopped. * * * Admitting, for the sake of the discussion, that the slowing up of the car to avoid the wagon and the increase of speed after clearing the obstruction may not have been done skillfully, it by no means follows that it was done negligently. There is a wide difference between want of skill and negligence. * * * In order to resume his progress after ‘ slowing up ’ and avoiding the wagon, he was, of course, compelled to turn on his power and release his brake, the effect of which was to cause the plaintiff’s witness, who was standing, to swing to the side ‘a little bit’ or ‘fall a little to the side.’ No court certainly of this State has yet declared that such an effect justified an inference of negligence in car operation against the carrier.” There is nothing in this case to show any negligence on the part of the company, or, as the learned circuit judge said, to treat this other than as a casualty for which defendant was hot to blame. The judgment is affirmed. Ostrander, C. J., and MoAlvay, Brooke, Blair, and Stone, JJ., concurred with Hooker, J.