Little Rock Traction & Electric Co. v. Kimbro , 75 Ark. 211 ( 1905 )

Battle, J.

Kimbro brought this action against the Little Rock Traction & Electric Company to recover damages for a personal injury alleged to have been caused by the negligence of the defendant. The defendant is a corporation, organized under the laws of this State, and is engaged in the operation of a street railway in the city of Little Rock; On the 21st day of November, 1898, plaintiff was 9 passenger on one of its cars, and in attempting to alight on Markham Street, about half way between Center and Spring, fell and was severely injured. This was not a regular stopping place for the cars. One witness testified that when plaintiff attempted to alight, the car had stopped; another that it had about stopped; another that it was moving very slowly. One witness testified that it was moving about six miles an hour, and that plaintiff’s action indicated that he was about to alight, and in a manner which would result in breaking his neck. He' (plaintiff) testified that, as he was in the act of alighting, the car was suddenly moved forward, throwing him down, and greatly and seriously injuring him.

The court, over the objections of the defendant, gave the following, among other, instructions to the jury:

“4. If the jury find in this case that the plaintiff by his negligence contributed materially to cause the injury, so that, but for his own concurring fault, the injury would not have happened to him, but further find from the evidence that the conductor on said car knew of plaintiff’s negligent conduct, and by the exercise of proper care could have avoided the consequences of such negligence, and failed to do so, and that said conductor’s failure was the immediate cause of the injury complained of, then defendant cannot rely on such contributory negligence as a defense in this action.”

“11. If the jury believe that plaintiff’s’injury was caused by his imprudently attempting to alight from a moving car, or from his effort to alight in an unskillful or unsafe manner, the jury will find for the defendant, unless the jury further find from a fair preponderance of the evidence that the conductor knew of plaintiff’s negligence in so attempting to alight in time to have prevented the injury, and could by the use of ordinary care have prevented the injury, and failed to do so.”

The plaintiff recovered a judgment for $2,100, and the defendant appealed.

Carriers of passengers by street railways are required to exercise “a very high degree of care and skill to secure the safety of passengers and to prevent accidents and injuries.” Mr. Booth, after stating in his treatise. on “Street Railway Law” how this care and skill are defined by the courts of various States, says: “If, notwithstanding the difference in the terms employed, we are to assume that the courts have intended to hold the defendant companies to the same degree of care, diligence and prudence, the general rule may be stated as follows: A common carrier of passengers by street car is required to exercise the highest degree of skill and care which may reasonably be expected of intelligent and prudent persons employed in that business, in view of the instrumentalities employed, and the dangers naturally to be apprehended.” Section 328.

“When the cars of street railway companies 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. Stopping a reasonable time is not sufficient, but it is the duty of the conductor or those in charge to see and know that no passenger is in the act of alighting or in a dangerous position before putting the car in motion again.” Leavenworth Electric Railroad Co. v. Cusick, 60 Kan. 590; 24 Am. & Eng. R. Cases, 922, and cases cited; Nellis on Street Railroad Accident Law, pp. 96, 109; Booth on Law of Street Railways, § 352.

Hutchinson on Carriers, says: Railway carriers of passengers “must be extremely careful not to mislead their passengers into the belief that the halting of a train at a station is meant as an invitation to them to alight when it is not so intended; and that if the conduct of the servants engaged in its management is such as may reasonably produce that impression, and the passenger so understands it, and in the attempt to leave the coach at a place where no facilities are provided for his doing so. and whilst in the exercise of due diligence in doing so, he is injured, the company will be liable.” Hutchinson on Carriers (2d Ed.), § 615. This rule is equally applicable to street railway companies; the reason for its application in both cases being the same. Appellee insists that he was induced by the conductor of appellant to alight when he did. If so, this rule is applicable to his case.

But the carriers of passengers by street railways are not insurers of the safety of their passengers, and are not bound absolutely to carry them safely or without injury; nor to provide such measures to protect them against accidents and injuries caused by their own acts or omissions, which the exercise of reasonable foresight would not anticipate. Hansen v. North Jersey Street Ry. Co., 64 N. J. L. 686, 696; Craighead v. Brooklyn City Railroad Co., 123 N. Y. 391; Flint v. Norwich & New York Transportation Co., 34 Conn. 554; Baldwin v. Fair Haven & Westville Railroad Co., 68 Conn. 567, 572; Nellis, Street Railroad Accident Law, p. 50.

The case of Craighead v. Brooklyn City Railroad Co., supra, was an action to recover damages for injuries received by plaintiff while a passenger on one of defendant’s horse cars. It appeared that plaintiff, while passing along the step on the side of the car, which was an open one, was struck by one of defendant’s closed cars coming from an opposite direction. The smallest space between defendant’s tracks at or near the place of the accident was such that the space between the outside step of an open car and the body of a closed one was seventeen inches, at least. Mr. Justice Peckham, in delivering the opinion • of the court, said: “Upon these facts, we cannot see how the defendant can be convicted of negligence, because it did not have more space between its tracks. For twenty years such space had been sufficient, although precisely the same opportunities for accidents had arisen many times daily during that period, and yet not one had occurred. Clearly, the accident was not one to be apprehended, and a failure on the part of the defendant to take such measures as would make its happening under any circumstances a physical impossibility cannot be said to be an omission of duty. The accident was not to be apprehended, because thousands of passengers on the steps of an open car had uniformly, and for twenty years, passed in safety the car going in an opposite direction. * * * There was no negligence on the part of the conductor in failing to prevent the plaintiff from going on the steps or in failing to warn him of any possible danger which might arise therefrom.”

Opinion delivered May 27, 1905. A. W. Files and Atkinson & Patterson, for appellee, on motion for rehearing.

The gist of the action is negligence of the conductor in starting the car while the plaintiff was in the act of alighting, in N. C. 597; 91 Ala. 421. The contributory negligence of plaintiff is no defense where the direct cause of the injury was the omission of the defendant, after becoming aware of the injured party’s negligence, to use a proper degree of care to avoid the consequences thereof. 36 Ark. 377.

The negligent conduct referred to in instruction numbered 4 is not defined. Referring to the evidence, we find that it was the attempt of the appellee to alight while the car was in motion. It is so expressed in instruction numbered 11. Whether the conductor should have attempted to prevent him from alighting, or to stop the car, depended upon circumstances. He should have done so if by the exercise of reasonable foresight he might have anticipated that he would have been injured by alighting when the car was in motion; otherwise not. There would have been no necessity for protection if it had been apparent that he needed none. These instructions' exclude this matter from the consideration of the jury, and in that respect are fatally defective.

Reversed and remanded for new trial.

Hill, C. J., did not participate.