Opinion
No. 23451
Decided June 15, 1932.
Negligence — Street railway not required to warn alighting passenger of approaching automobile — One-half street barricaded, and traffic traveling on open side — Relation of carrier and passenger ceases after passenger safely alights.
1. A street railway company owes no duty to a passenger to warn him, upon leaving the street car at a regular stop, of the approach of an automobile; and its failure to do so does not constitute negligence. ( Reining, Admx., v. The Northern Ohio Traction Light Co., 107 Ohio St. 528, approved and followed.)
2. The fact that the east one-half of the street in question was barricaded and both north and southbound traffic was traveling over the west side of the street upon which the passenger alighted, does not change this rule, in the absence of a showing that the street railway company created or contributed toward the creation of the barricade and that such barricade constituted a dangerous condition.
3. When a passenger has alighted from a street car in safety, the relation of carrier and passenger ceases eo instanti.
ERROR to the Court of Appeals of Cuyahoga county.
The parties in this case are reversed. The defendant in error, John Karbole, was plaintiff in the trial court, and the plaintiff in error was defendant.
Karbole brought suit against the street railway company, alleging in substance that on July 3, 1929, he was a passenger on one of the cars of the street railway company. At about seven o'clock a.m. of said date he alighted from a south-bound East Fifty-fifth street car, at a regular stop, and was struck by an automobile being operated by William Smith on East Fifty-fifth street in a northerly direction. The east side of East Fifty-fifth street was barricaded, so that traffic for both north and south-bound vehicles was being conducted over the west side of East Fifty-fifth street. The space between the rail of the south-bound track and the westerly curb was 20.75 feet. (This is agreed to.)
The allegations of negligence against the street railway company are as follows:
First. The Cleveland Railway Company was careless and negligent in permitting plaintiff to leave the street car and to alight therefrom into the path of the automobile driven by the defendant, William Smith, when the Cleveland Railway Company, by its servants and agents, saw, and by the exercise of ordinary care could and should have seen, the automobile of William Smith passing in front of said street car to the westerly side of East Fifty-fifth street, proceeding in a northerly direction.
Second. The Cleveland Railway Company was careless and negligent in failing to warn or apprise plaintiff of the presence and close proximity of the automobile being then and there driven by the defendant, William Smith.
These allegations of negligence were denied by the street railway company.
Trial was had, and at the close of plaintiff's testimony the street railway company moved for a directed verdict in its favor, upon the ground that the plaintiff had failed to prove that the company was guilty of negligence. This motion was overruled, the testimony in the case was taken, and the motion was renewed at the end of all the testimony, and overruled.
Plaintiff in error claims that, under all the testimony in the case, it did not owe to Karbole any duty at the time he was injured. All the testimony in the case, even the testimony of Karbole himself, tends to show that he had alighted from the street car in safety, and was struck by the automobile of Smith, which came from the east side of the street, around the front of the street car, and was proceeding north.
Error is prosecuted here to reverse the judgment of the Court of Appeals of Cuyahoga county, and that of the court of common pleas.
Messrs. Squire, Sanders Dempsey and Mr. R.C. Green, for plaintiff in error.
Messrs. Rocker Schwartz, for defendant in error.
The case of Reining, Admx., v. Northern Ohio Traction Light Co., 107 Ohio St. 528, 140 N.E. 84, disposes of this case. The specific allegations of negligence set out in plaintiff's petition against the street railway company do not constitute a cause of action against the company. It has been specifically held that when a passenger has alighted in safety from a street car, the relation of carrier and passenger ceases eo instanti.
There is no testimony in this case tending to show that the street railway company had anything whatever to do with barricading the east side of Fifty-fifth street; nor did it in any wise contribute to such barricade. It produced no condition of danger.
The trial court should have granted the motion of the street railway company to direct a verdict, and in failing to do so erred; and the Court of Appeals, by affirming the judgment of the court of common pleas, likewise committed error.
This court, coming now to render the judgment that should have been rendered in the trial court, reverses the Court of Appeals and the court of common pleas, and judgment is rendered in favor of plaintiff in error, the Cleveland Railway Company, with costs.
Judgments reversed and judgment for plaintiff in error.
MARSHALL, C.J., JONES, MATTHIAS, DAY and KINKADE, JJ., concur.