In Wood v. North Carolina Pub. Serv. Corp., 1 A.L.R. 942, 944, 174 N.C. 697, 94 S.E. 459, it was held by a divided court that defendant street railway company was negligent in permitting "plaintiff, a passenger, to alight on a roadway, along which one or two automobiles were passing each minute, immediately in front of an automobile moving rapidly, without warning, and when the conductor of the defendant, who knew of the dangers of the road, did not look to see if any danger was approaching."Summary of this case from Lacks v. Wells
(Filed 5 December, 1917.)
1. Evidence — Nonsuit — Trials — Motion.
Upon a motion to nonsuit, the evidence is considered in the light most favorable to the plaintiff, and an inference in defendant's favor may not be drawn from his own evidence.
2. Negligence — Separate Parties — Concurrent Cause — Entire Damage — Actions.
Where the negligence of two parties proximately and concurrently cause a personal injury to a third person, free from blame, he may maintain an action against either of the others for the entire damage.
3. Street Railways — Alighting Passengers — Negligence — Evidence — Contributory Negligence — Trials — Questions for Jury.
A street car company owes the duty to its passengers to use a high degree of care to see that they safely alight from its cars when they stop at the regular stopping points; and where there is evidence tending to show that automobiles usually passed the place where plaintiff was injured at the rate of one or two a minute, and by the exercise of care, a street car conductor could have seen the approach, at high speed of one of them, and failed to warn a passenger of her danger, for which she had looked and failed to see, and that she was struck and sustained the injury complained of while she was alighting or immediately thereafter, it is sufficient upon the issue of defendant's actionable negligence, and the plaintiff will not be held, as a matter of law, to be barred of her right to recover upon the issue of contributory negligence.
APPEAL by defendant from Long, J., at the May Term, 1917, of GUILFORD. (698)
G.S. Bradshaw and John A. Barringer for plaintiff.
Jerome, Scales Jerome for defendant.
CLARK, C. J., concurring; WALKER, J., dissenting; BROWN, J., concurring in the dissenting opinion of WALKER, J.
This is an action to recover damages for personal injury caused, as the plaintiff alleges, by the negligence of the defendant street railway company.
On 5 July, 1916, the plaintiff became a passenger on one of the defendant's street cars for the purpose of going to her home west of the city of Greensboro, and when the car reached a point nearly opposite Fields' Store, about one-half mile west of the corporate limits of Greensboro, it stopped at a regular stopping place and at the destination of the plaintiff for the purpose of allowing passengers to alight.
The plaintiff while in the act of alighting from the car, or immediately after she had reached the ground, was stricken by an automobile running at from 25 to 30 miles an hour, and was seriously injured. The automobile was running in an opposite direction from the car. The evidence of the defendant tended to show that the plaintiff was injured 10 or 12 feet from the street car while she was attempting to pass to the sidewalk. There was also evidence on the part of the plaintiff that if she had been permitted to get out on the other side of the street car she could have stepped from the car in safety to a cinder path.
At the conclusion of the evidence there was a motion for a judgment of nonsuit, which was denied, and the defendant excepted.
There was a verdict and judgment for the plaintiff, and the defendant appealed.
The only question presented by the appeal from the refusal to nonsuit the plaintiff is whether there is any evidence fit to be submitted to the jury of negligence on the part of the defendant; and in the consideration of this question we must accept the evidence of the plaintiff and construe it in the light most favorable to her. We are not permitted to base our judgment on the evidence of the defendant, nor can we draw the inference, favorable to the defendant, that the automobile was running on the extreme right side of the road and turned suddenly and struck the plaintiff, as no witness testified that the automobile changed its course, and one (699) witness (Boyles) testified "The automobile was coming along by the side of the car." We cannot act upon the statement in the defendant's brief that the evidence shows that the automobile turned suddenly and struck the plaintiff, in the absence of evidence of the fact, and it can only be inferred upon the presumption that the driver of the automobile was obeying the law by being on the right-hand side of the road, when all the evidence shows she was violating the law by exceeding the speed limit.
The evidence is irreconcilable, the plaintiff testifying that "as soon as I struck the ground the automobile got me"; "I had just cleared the car when it got me"; "I just barely cleared the car to get down to the street"; "I hadn't made any steps"; "I just stepped off the car and hadn't taken a single step"; and the witnesses for the defendant that she was 10, 12, or 15 feet from the car when she was stricken.
Giving, therefore, to the evidence a construction favorable to the plaintiff, and accepting it as true, as it is our duty to do, it shows that the defendant permitted the plaintiff, a passenger, to alight on a roadway, along which one or two automobiles were passing each minute, immediately in front of an automobile moving rapidly, without warning, and when the conductor of the defendant, who knew of the dangers of the road, did not look to see if any danger was approaching.
Is this evidence of negligence? The negligence of the driver of the automobile is established by the evidence, but this does not relieve the defendant from liability, if it was also negligent, as there may be two proximate causes of an injury; and where this condition exists, and the party injured is not negligent, those responsible for the causes must answer in damages, each being liable for the whole damage, instead of permitting the negligence of one to exonerate the other.
It is in the application of this principle it is held, except where the doctrine of comparative negligence prevails, that the plaintiff cannot recover if his own contributory negligence concurs with the negligence of the defendant in causing the injury, because as his negligence is one of the proximate causes, he as well as the defendant is liable for the whole damage, and as there is no contribution among tort feasors he cannot recover anything from the defendant.
"There may be more than one proximate cause of an injury, and it is well established that when a claimant is himself free from blame, and a defendant sued is responsible for one such cause of injury to plaintiff, the action will be sustained though there may be other proximate causes concurring and contributing to the injury. In 21 Am. Eng. Enc. (2 Ed.) 495, it is said: `To show that other causes concurred in producing or contributing to the result complained of is no defense to an action of negligence. There is indeed no rule better settled in this present connection than that the defendant's negligence, in order to render him liable, need (700) not be the sole cause of plaintiff's injuries.' Again, on page 496, it is said: `When two efficient proximate causes contribute to an injury, if defendant's negligent act brought about one of such causes, he is liable.'" Harton v. Tel. Co., 141 N.C. 461, approved in Harvell v. Lumber Co., 154 N.C. 262, where it was pointed out that the difference of opinion in the Harton case was only as to the application of the principle to the facts in that record.
We must then inquire as to the negligence of the defendant, and here the decision depends on whether the defendant owed a duty to the plaintiff, who was a passenger on its car, and who was injured while alighting, or immediately thereafter, according to her evidence, and whether it failed in the performance of this duty.
There is a conflict of authority as to the obligation of the street railway after a passenger has left the car, the Courts of Alabama and Kentucky holding that it must provide a reasonably safe place and way (Montgomery v. Street Ry., 133 Ala. 529; R. R. v. Mitchell, 138 Ky. 190), and others that, as the company has no stations and no control over the streets, its obligation should be coextensive with its control, and that the relation of carrier and passenger ceases when the passenger has safely alighted. Clark's Accident Law 13; Creamer v. R. R., 156 Mass. 321; Street R. R. v. Body, 105 Tenn. 669; Schley v. R. R., 19 Anno. Cases 1020 and note; Stuart v. R. R., Anno. Cases, 1912 B 863, and note.
The weight of authority seems to be with the latter view, and also that in any event the railway must exercise the highest degree of care, and must afford the passenger an opportunity to alight in safety.
The Court says in Anderson v. Street R. R. Co., 12 Ind. 197: "There is a marked difference between the duties the law imposes upon those who operate street railways and those who operate ordinary steam railways. The latter usually run upon scheduled time and have fixed places for receiving and discharging passengers. There is a higher degree of care imposed upon street railways than upon ordinary steam railways. When their cars stop for passengers to alight it is the duty of their servants to stop long enough for the passengers to alight, and to see that the car does not start again while any one is attempting to alight or exposed to danger."
In Smith v. R. R., 32 Minn. 3, "The defendant was a carrier of passengers for hire, owning and controlling the tracks and cars operated thereon. It is therefore subject to the rule applicable to passenger carriers. . . . As respects hazards and dangers incident to the business or employment, the law enjoins upon such carrier the highest degree of care consistent with its undertaking, and it (701) is responsible for the slightest negligence. . . . This rule extends to the management of the cars and track and to all the subsidiary arrangements necessary for the safety of passengers."
In R. R. v. Scott, 86 Va. 907, "Passenger carriers bind themselves, says a learned author, to carry safely those whom they take into their coaches, as far as human care and foresight will go — that is, to the utmost care and diligence of very cautious persons. . . . And in R. R. v. Prindle, 82 Va. 122, this Court said, `The implied contract to carry safely includes the duty of giving the passengers reasonable opportunity to alight in safety from the train, and a violation of this part of the company's duty is culpable negligence, for which an action will lie.' In Wharton on Negligence, sec. 649, it is laid down that `When a danger approaches, it is the duty of the officers of the road to notify passengers, so that they can take steps to avoid it; and failure to give such notice is negligence. So, also, if there is a dangerous place at the landing, it is the duty of the conductor to warn those about stepping out,' and `he must give notice to all if any danger in alighting is probable.'"
In Cartwright v. R. R., 42 Mich. 606, Cooley, C. J., says: "If a car in which there were passengers was not standing where it would be safe for them to alight without assistance, it was the duty of the company to provide assistance, or give warning, or move the car to a more suitable place. . . . These authorities show the extent to which the liability of carriers of passengers goes in cases like the present, and by this liability street or horse railways, as well as other classes of carriers, are bound."
In Street R. R. v. Twiname, 111 Ind. 591: "A railway company is a common carrier of passengers as well as freight. A street railway company is also a common carrier of passengers, with duties and responsibilities entirely analogous to, and substantially the same as, those of a railway company in the carriage of passengers. Both are railway companies within the usual meaning of that term, and the same general rules and degree of care in the transportation of passengers must be observed by each. . . . Carriers of passengers are required to exercise the utmost care and foresight in the performance of their duty as such carriers. . . . This is the equivalent of requiring that the highest degree of care and skill shall be used in the transportation of passengers as the rule is stated by many of the decided cases."
In R. R. v. Higgs, 38 Kan. 383: "All possible skill and care implies that every reasonable precaution in the management and operation of street cars be used to prevent injuries to passengers; it means good tracks, safe cars, experienced drivers, careful management, and judicious operation in every respect. All possible foresight means more than this; it means anticipation, if not knowledge, that the operation of street cars will result in (702) danger to passengers, and that there must be some action with reference to the future, a provident care to guard against such occurrences, a wise forethought and prudent provision that will avert the threatened evil if human thought or action can do so."
In R. R. v. Tobriner, 147 U.S. 571, after speaking of the duty of a street railway to deliver its passengers in safety, "It was not a duty to a person solely because he was in danger of being hurt, but a duty owed to a person whom the defendant had undertaken to deliver, and who was entitled to be delivered safely by being allowed to alight without danger."
And the author, in 4 R. C. L., "The general rule just considered that in the case of a carrier having exclusive control or occupation of its tracks and stations, one traveling may still retain the status of a passenger after alighting from the carrier's vehicle, is from the nature of things not applicable to carriers not so situated, as for instance, in the case of persons traveling on street railway cars. While a person attempting to alight from a street car remains a passenger until he has accomplished the act of alighting in safety, and the carrier owes to the passenger alighting that very high degree of care and attention which the law puts upon it generally to the end of promoting the safety of its passengers, and will be liable for negligent injury to the passenger while so alighting, it is the generally accepted view that one who has alighted from a street car and is in safety upon the highway is no longer a passenger."
If, therefore, the defendant owed to the plaintiff a high degree of care, and if it was its duty to protect her from and warn her of danger and to see that she alighted in safety, has there been a breach of that duty?
The question presented to us by the motion for judgment of nonsuit is within even narrower limits, as the law commits to the jury the duty of saying how the fact is, and leaves to this Court no power or jurisdiction except to decide whether there is any evidence of a breach of duty fit to be considered by the jury, and enjoins upon us that we give to the evidence the construction most favorable to the plaintiff, and that she is entitled to the benefit of every reasonable inference arising upon the evidence.
The evidence is conflicting, and that of the plaintiff, standing alone, would raise serious doubts in our minds if we were sitting as jurors as to her right to recover, but we cannot give her the benefit of the legal principles we have declared, which apply as of right to all litigants, and say there is no evidence that the defendant failed to protect and warn her, and to give her the opportunity to alight from its car in safety.
One witness testified that 60, and another 120, automobiles (703) passed the place of injury in an hour, and all the evidence shows that the plaintiff alighted on a much traveled roadway.
The plaintiff testified she was struck by the automobile as soon as her feet were on the ground. Her language is, "As soon as I struck the ground the automobile got me"; "I just had cleared the car when it got me"; "I just barely cleared the car to get down to the street."
A witness for the defendant, who was a passenger, testified: "The first I saw of the automobile was when the car stopped. I was looking out the window. It had not quite got to the street car." The conductor in charge of the car was on the platform with the plaintiff, according to her evidence, and he testified, "I did not look specially to see whether an automobile was coming when Mrs. Wood got off the car."
Is it not a reasonable inference from this evidence that the plaintiff was permitted to alight on a roadway along which automobiles were passing at the rate of one or two a minute, immediately in front of a rapidly moving automobile, and that if the conductor had looked, and had taken the slightest precaution, he could have seen the approaching automobile and the danger to the plaintiff, and could have averted the injury?
The plaintiff must have been in the act of getting off the car, if her evidence is true, at the time the passenger saw the automobile not quite to the street car, and if the conductor had looked would he not have seen the same thing, and that the automobile was not on the side of the roadway away from the car, but was rushing down on the plaintiff, and can it be said, if these facts are true, that the defendant afforded the plaintiff the opportunity to alight in safety? If so, there was evidence of a breach of duty on the part of the defendant which was the cause of the plaintiff's injury, and the case was properly submitted to the jury.
There is evidence of contributory negligence upon the part of the plaintiff, and we must assume that this was submitted as the charge is not sent up as a part of the record. It cannot be declared as matter of law that she was guilty of such negligence that her right of action would be barred, because she testified that she was paying attention when she got off, and that immediately before attempting to alight she looked for an automobile and did not see one.
If the inquiry is made as to why the conductor should be held to the duty of seeing the automobile when the plaintiff testifies that she looked and did not see one, the answer is that the automobile was running about 800 yards a minute, and that she might well have looked and not see it as she was preparing to alight, and the conductor could have seen it while she was alighting, as enough time must have elapsed for the automobile to have run two or three hundred yards from the time she prepared to get off the car until she actually reached the ground.
There is other evidence in the record which we have not referred to because we have not thought it necessary that the (704) motorman in front of the car could have seen the approaching automobile one-half mile distance.
We have carefully considered the record and are of opinion that the judgment must be affirmed.