Virginia Railway & Power Co. v. Arnold , 121 Va. 204 ( 1917 )

Sims, J.,

after making the foregoing statement, delivered the opinion of the court.

There are only two questions raised by the assignment of error and presented to us for decision, namely: ■

1. Whether a meeting of the minds of defendant and plaintiff in fact upon a contract of carriage of the plaintiff as a passenger is essential to the recovery of the plaintiff?

2. Whether the plaintiff is entitled to recover any damages — although the defendant was negligent in not bringing its car to a stand-still — and although it was moving so slowly that the plaintiff was guilty of no negligence in attempting to board it, if the plaintiff in fact attempted to board the car while it was moving, his own act, in coming in contact with the moving car, being the proximate cause of his injury (as defendant contends) ?

As these questions involve well-settled propositions of law, «we do not feel that any extended discussion of the authorities is necessary.

We will consider such questions in their order as stated above.

1. With respect to the first question:

It is true, the relation of passenger and carrier is one of contract. It differs, however, from a contract in the ordinary relations of parties to each other, in that it is a contract which a common carrier is not at liberty to decline to make, where the would-be passenger has brought himself within the requirements entitling him to ask of it the service of carriage and he does in fact ask it. The law in such case imposes the duty upon the carrier to render the service, and, under proper circumstances, the law will imply the existence of a contract of carriage.

The conscious acceptance by the motorman or conductor of the car of the offer of a would-be passenger to become a passenger — i. e., the actual meeting of minds of plaintiff and defendant in fact upon a contract of carriage — it is well settled, is not essential to the relationship of carrier and' passenger. Conner v. Citizens’ Street Railway Co. (1885), 105 Ind. 62, 4 N. E. 441, 55 Am. Rep. 179; Marshall’s Adm’r v. Boston Elevated, Ry. Co. (1909), 203 Mass. 40; 88 N. E. 1094; Ormand v. St. Louis Transit Co., 102 Mo. App. 207, 76 S. W. 680; 2 Hutchison on Carriers (3rd ed.) 1906, sec. 997; Klinck v. Chicago City Railway Co., 262 Ill. 280, 104 N. E. 669, 52 L. R. A. (N. S.) 70, 73, Ann. Cas. 1915 B, 177; Nellis on Street Railways, sec. 301, p. 600.

The usual position taken by the authorities on the subject is that the act of a carrier in stopping a street car, or in bringing it almost to a stop at a place where it is accustomed to receive or discharge passengers, is. an implied invitation by the carrier to a would-be passenger to get aboard, regardless of the motive or mental attitude of the employee controlling the movemeht of the car, and an acceptance by a would-be passenger of this implied invitation, creates the relationship of carrier and passenger. The law under such circumstances implies the contract of carriage.

In the case of Klinck v. Chicago City Railway Co., supra, the court said:

“As Klinck was standing at a place where defendant was accustomed to receive and discharge passengers, for the purpose of boarding the car, and as the speed of the car was reduced as it approached him, apparently for the purpose of receiving and discharging passengers, the relation of passenger and carrier existed between him and plaintiff in error when he attempted to board the car and was injured. * * *

“The instruction, as offered, is clearly wrong. It would have required the plaintiff to prove that the employees in charge of the car knew that he intended to board the car. While it is necessary to prove either an express or implied contract of carriage, yet the act of the carrier in stopping a street car, or in bringing it almost to a stop at a place where it is accustomed to receive and discharge passengers, is an implied invitation to persons intending to take passage thereon at that place to board the car and the act of any such person in attempting to board the car is an acceptance of the implied invitation, and creates the relation of carrier and passenger. It was the duty of those in charge of the car to know whether or not the implied invitation was accepted, and the carrier cannot escape liability by showing that its employees in charge of the car did not know that the person who had accepted the implied invitation intended to board the car.”

It is true that in a case where the servant of the defendant in charge of the movement of the car does not in fact see the intending passenger, and is not in fact aware that he wishes to become a passenger, the situation must be such that in the exercise of ordinary care in the discharge of its duty as a common carrier the defendant through such employee ought to have seen him or have been aware that he wished to become a passenger, before the law will imply the contract of carriage. Such was the case at bar, however, as we must regard it under the rule governing us.

The note of Judge Freeman, 104 Am. St. Rep. 586, cited by counsel for defendant is not in conflict but in accord with this position.

The question under consideration was not involved in the case of Reynolds v. Richmond, etc., Ry. Co., 92 Va. 400, 23 S. E. 700, cited and relied on by counsel for defendant. In that case the intending passenger was not at the usual place for taking or discharging, passengers and hence had not brought himself within the requirements entitling him to ask of the carrier the service of carriage.

The remaining authorities cited by counsel for defendant on this point are distinguishable from the instant case. For the most part they are cases where the situation was such that the employees in charge of the movement of the defendant’s car in the exercise of ordinary care were not to be expected to become aware of the situation of the plaintiff, such as that the latter was not at the usual stopping place for passengers to board or alight from defendant’s cars, or other situations in which no duty arose upon the part of the carrier to use care to become aware of the position of the plaintiff. It is not believed therefore that a detailed discussion of such authorities would serve any useful purpose.

2. With respect to the second question.

Since the decision of the case of City of Newport News, &c. v. McCormick, 106 Va. 517, .56 S. E. 281, by this court, it has been the settled rule in this State that it is not negligence per se to alight from a slowly moving street car. The same legal rule applies to the boarding of a slowly moving street car. In both cases the act of a person injured by the attempt to alight from or board a moving car would be the immediate cause of the injury. But the general doctrine of the law of negligence is that where a cause “which results in injury to a person is set in motion by another, that other will be liable to the person injured although the intervening act or omission of such person was the immediate cause of his receiving the injury, provided the circumstances surrounding him are such that his act or omission ought not to be imputed to him as a fault” (1 Thompson on Neg., sec. 64), — i. e., where the latter act or omission occurs in the exercise of ordinary care by the person injured. That is to say, the general doctrine of the law of negligence is, that the act or omission of the person injured, if it occurs in the exercise of ordinary care on the part of the latter, cannot be regarded as the proximate cause of the injury. Certainly this doctrine is applicable to the conduct of passengers boarding or alighting from slowly moving street railway cars under the rule in this State above mentioned. Under it, where the car being in motion is due to the negligence of another and contact with it causes the injury, the question of fact is, whether the act of the person injured, in attempting to board a slowly moving car, was one of ordinary care. If so, such, act cannot be considered as the proximate cause of the injury.

Counsel for defendant contend that although it were granted that the defendant was negligent in not stopping its car, and although the plaintiff was not negligent per se, or at all, — but was in the exercise of ordinary care when he attempted to board the slowly moving car, yet, if injured in so doing, such act was the proximate cause» of the plaintiff's injury and hence he cannot recover. As we have seen above, such position confuses immediate cause with proximate cause. Therefore, it cannot be sustained upon principle. Nor can it be sustained upon authority, where the rule is in force which is in force in Virginia applicable to moving street car cases. Such a position could not be tenable without overturning the settled rule on the subject in this State.

Counsel for defendants cite, rely upon and quote from a paragraph in the majority opinion of this court delivered by its able and learned president, Judge Keith, in the case of C. & O. Ry. Co. V. Paris, 111 Va. 41, at pp. 49 and 50, 68 S. E. 398, 28 L. R. A. (N. S.) 773, to sustain the position in question. It is quite true that if what is there said were carried to its logical conclusion and were applicable to the instant case, it would sustain the position of counsel and necessitate our overruling the case of Newport News, &c., Co. v. McCormick, supra. But aside from the question as to whether it was necessary for the decision of that case (a consideration of which it is unnessary for us to here enter upon) what was there said was in reference to the facts of that case; and, in view of our opinion of the soundness of the principle on which the rule established in Newport News, &c., Co. v. McCormick, supra, is based, it is sufficient for us to say that we cannot apply to the instant case the said citation relied on by counsel for defendant.

For the foregoing reasons we find no error in the judgment complained of and it will be affirmed.

Affirmed.