Keeley v. City Electric Railway Co.

Ostrander, C. J. (after stating the facts). The principal question of law is whether the court erred in instructing the jury concerning the duty of the conductor. [89] For the purpose of deciding this question, the circumstances to be considered are those related by plaintiff and have been stated. In Booth on Street Railways, § 849, the doctrine with respect to the duty of those in charge of street cars is stated in these words: “ It is the duty of those in charge of the car, when signaled to stop for the purpose of discharging passengers, to ascertain who and how many of the passengers intend to alight at that place, to wait a sufficient length of time to allow them to alight in safety by the exercise of reasonable diligence, and, in any event, to see and know that no passenger is in the act of alighting, or is otherwise in a position which would be rendered perilous by the motion of the car when it is again put in motion.” See, also, Highland Avenue, etc., R. Co. v. Burt, 92 Ala. 291 (9 South. 410, 13 L. R. A. 95); Railroad v. Mitchell, 98 Tenn. 31 (40 S. W. 72); Memphis Street Ry. Co. v. Shaw, 110 Tenn. 467 (75 S. W. 713); Medler v. Railroad Co., 126 N. Y. 669 (27 N. E. 854); s. c. (City Ct. Brook.) 12 N. Y. Supp. 930; Finn v. Railway Co., 86 Mich. 74 (48 N. W. 696). The following instructions to a jury were approved in Gilbert v. Railway Co., 160 Mass. 403 (36 N. E. 60): “(1) A common carrier is bound to delay at a station or stopping place only a reasonable length of time for the purpose of allowing passengers to alight, unless those in charge know or have reason to know that some passenger has not got off, and is desiring to do so. “(2) Passengers on a street car, when at their place of destination, should leave the car with reasonable dispatch, and after the car has stopped a reasonable time for passengers to get off, and as soon as all passengers destined for a particular place, or intending to get off there,'have apparently left, and the conductor has no notice that any one else is trying to get off, then the conductor may properly start his car. “(3) If the car has stopped a reasonable time, and the plaintiff did not step from the car until after the car had started, and was not at the time of starting the car apparently in the act of leaving it, and the conductor did not [90] know, or have any notice, or have reason to know, that the plaintiff was intending or desiring to get off there, then there was no negligence on his part in starting the car. “ (4) If the jury find that the car had waited a reasonable length of time for passengers to alight, and that the plaintiff delayed and was not apparently in the act of leaving the car when the bell was'given for the car to start, and the conductor had no notice or knowledge of the plaintiff’s intention or desire to get off, then there was no negligence in starting the car. “5. The conductor was not bound to know that every passenger had left the car that was intending to leave it at that place, in the absence of any sign of such intention, and if, after waiting a reasonable time, he took reasonable means to see whether passengers were at the time leaving the car, and no one appeared to be leaving it, and the conductor did not know, or have any reason to know, that the plaintiff was intending to get off, there was no negligence in starting the car.” No different rule should be applied when passengers are entering the car. Kinkade v. Railroad Co., 9 Misc. Rep. 273 (29 N. Y. Supp. 747); Dean v. Railroad Co., 34 App. Div. 220 (54 N. Y. Supp. 490); Dudley v. Railway Co. (C. C.), 73 Fed. 128; Smith v. Detroit United Railway, 145 Mich. 629 (108 N. W. 1024). In Dudley v. Railway Co., supra, it was said: “It was the duty of the conductor, before giving the signal to the gripman, to look around, and to have seen that all passengers to take passage at that place were safely on board; and failure in the performance of this duty cannot be excused by the fact that the conductor did not actually see the plaintiff.” We think the judgment should not be reversed because of the instructions which were given or because defendant’s requests were refused. The instructions do not incorrectly state the applicable rule of law. They do not, as of course they should not, state, or imply, that defendant was an insurer of plaintiff’s safety, or that the conductor was bound, at the peril of defendant, to know that no one was entering any of the cars when they were started. The court might very properly [91] have incorporated in the charge reference to length of time the cars were stationary, to the rather unusual conduct of plaintiff, and we think it would have been error to refuse to do so if requested. When street cars have stopped for such a time that any one capable of entering, or of alighting, with reasonable celerity, ought to have done so, the conductor, in the absence of notice to the contrary, may rely somewhat upon the presumption that the purpose of .bringing the cars to a stop is accomplished. It is a matter of common knowledge, too, that a conductor would be less likely to notice such a change of position as plaintiff claims he made than the actions of those leaving or entering cars in the ordinary manner. The court was not asked to amplify his instructions in this respect, nor is the failure to do so assigned as ■error. We find no merit in the assignments based upon rulings admitting and rejecting testimony. We are impressed that for some reason, or reasons, a verdict opposed to the great weight of the evidence was returned by the jury. Whether this was due to the failure of the court to amplify the charge in the manner herein indicated, or to the inflammatory and improper arguments of counsel for plaintiff, some of which have been set out, or to both, it is, of course, impossible to determine. Counsel for defendant made such objections to the argument referred to that the court gave it attention and stated a view of the law opposed to the one presented by counsel. But neither at that point, nor in the charge, was the jury told to consider only the law stated by the court. Counsel did not submit to the ruling of the court. On the contrary. And what was said might well have been treated by the jury as indicating that counsel’s views were as likely to be right as those expressed by the court. The argument was calculated, and apparently intended, to do harm to the defendant and to induce the jury to determine the issue without regard to the limitations imposed [92] by the court in the charge. If it had not been made, we should have hesitated, and probably refused, to set aside the verdict. Under the circumstances, we are impressed that it is our duty to reverse the judgment and order a new trial. It is so ordered. Steere, “Moore, Blair, and Stone, JJ., concurred with Ostrander, O. J. McAlvat and Brooke, JJ., concurred in the result. Bird, J., did not sit.