Summary
In Cleveland Ry. Co. v. Crooks, 125 Ohio St. 280, 181 N.E. 102, 103, the defendant was held liable for negligence in discharging a passenger at a place on the street about ten feet from the curb.
Summary of this case from Thompson v. AndermanOpinion
No. 23259
Decided April 27, 1932.
Negligence — Question for jury, and nonsuit error — Creating dangerous condition by stopping motorbus ten feet from curb — Passenger discharged between regular stops and injured by passing automobile.
Where it is pleaded and stated that a passenger on a motor bus, owned and being operated by a street railway company, was carried past her destination, informed the operator of the bus of such fact, who then stopped the bus ten feet from the curb for the purpose of discharging the passenger, and the passenger upon alighting at such point was struck and injured by a passing motor vehicle, a question for the jury is thereby presented as to whether or not the street railway company created a dangerous condition and by so doing was negligent, and a non-suit granted upon such statement constitutes error.
ERROR to the Court of Appeals of Cuyahoga county.
Defendant in error here, Mrs. Wayne Crooks, plaintiff below, on September 4, 1929, brought an action for damages for personal injury against the Cleveland Railway Company, plaintiff in error here, and one. William Sedgwick.
Plaintiff below alleged in her petition that on July 18, 1929, she was a passenger on an eastbound motor bus owned and operated by the Cleveland Railway Company; that the regular stop sign at East Fortieth street and Prospect avenue is approximately one hundred feet west of East Fortieth street; that she desired to alight from the bus at the regular stop; that the driver failed to stop the bus at the regular stop at a point next to the curb, but stopped at a point about ten feet from the curb and beyond the regular stop sign, and she, in alighting from the bus at that point, was injured by a motor vehicle which attempted to pass to the right of the bus. She further alleges that the Cleveland Railway Company was specifically negligent in the following respects: (1) In failing to stop at the regular motorbus stop and discharge plaintiff as a passenger; (2) in failing to keep a proper lookout for vehicular travel at Prospect avenue and East Fortieth street; (3) in opening the exit door without knowing whether approaching vehicles rendered the situation dangerous to passengers leaving the car at that time and place; (4) in failing to warn plaintiff of the danger incident to leaving the bus at such time and place.
She further alleges that the negligence of both defendants caused her to be injured and damaged.
Her counsel, in stating her case to the jury, enumerated the specific allegations of negligence set out in her petition and made the further statement: "Plaintiff signified her intention to alight from the motor bus at the regular stop at Prospect avenue near East Fortieth street, and that the defendant company, by its agents, stopped this motor bus in the middle or Prospect avenue at the intersection of East Fortieth street and beyond the regular stop sign and permitted this plaintiff to alight from said motor bus in the middle of the street."
Thereupon the Cleveland Railway Company moved for judgment by way of nonsuit on the pleadings and opening statement of counsel, for the reason that the opening statement of counsel shows that the relationship of passenger and carrier had terminated at the time the injury to plaintiff occurred.
The trial court granted the motion and rendered judgment for the Cleveland Railway Company. Plaintiff below excepted to this ruling of the court and carried her case to the Court of Appeals on error, which court reversed the trial court and remanded the case to the trial court for further proceedings. Error is prosecuted to this court to reverse the Court of Appeals and affirm the court of common pleas.
Messrs. Squire, Sanders Dempsey and. Mr. Donald M. Marshman, for plaintiff in error.
Mr. Herman E. Kohen and Mr. Leonard S. Danaceau, for defendant in error.
The Court of Appeals did not pass on the motion for judgment on the pleadings and the record does not disclose that it was requested so to do.
It held that the operative facts embraced in the opening statement of counsel for plaintiff below presented a prima facie case.
We think the Court of Appeals was right. The petition in the trial court certainly stated a cause of action, and the statement of counsel was as broad and comprehensive as the petition, if not more so.
We are in accord with the law that the relation of carrier and passenger ceases when the person of the passenger parts company with the carrier's vehicle, but the Court of Appeals very properly held that the railroad company owed this passenger an antecedent duty to do nothing that would tend to subject the passenger to anything more than the usual and ordinary perils of traffic; that if it created a condition that had such a tendency, a question of fact was made for the jury.
We have considered the law as announced in Mahoning Shenango Railway Light Co. v. Leedy, 104 Ohio St. 487, 136 N.E. 198; Reining, Admx., v. Northern Ohio Traction Light Co., 107 Ohio St. 528, 140 N.E. 84; and Cleveland Ry. Co. v. Sebesta, 121 Ohio St. 26, 166 N.E. 898, and we must agree with the Court of Appeals that there is a marked distinction between the operation of a street car, which runs on a fixed track and must stop on that track, and operation of a motor bus that has at least one-half the highway at its disposal.
The safe and sane point for the stoppage of a motorbus, whether the stop be regular or irregular, is at the curb, where there can be no danger to the passenger who is alighting from vehicular traffic.
There was a question in this case, sufficiently pleaded and stated, as to whether or not the street railway company by stopping its motorbus in the street, ten feet from the curb, did not create a dangerous condition constituting negligence, and it was a question of fact for the jury, and the Court of Appeals did not err in its ruling. The Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.