Selman v. City of Detroit

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Plaintiff brought suit against defendant to recover damages for an injury sustained while a passenger on one of defendant's street cars.

About 3:30 p. m., April 5, 1935, plaintiff boarded one of defendant's street cars at State and Griswold streets, in the city of Detroit, to go to her home on Hillger avenue, near Jefferson. The street car traversed a route southbound on Griswold street to Jefferson and then eastbound on Jefferson. Plaintiff seated herself on the bench running lengthwise on the righthand side of the car, in the non-fare-paid section. The car was so arranged that passengers boarded at the front entrance and could either sit in the forward portion and pay fare upon going out, or pass by the center of the car and pay fare and sit in the rear portion. When plaintiff boarded the car, two ladies were sitting on the same bench. One was seated immediately next to the conductor and the other at her right. Plaintiff took the third place from the conductor. She claims both the ladies on the seat had suitcases, the one nearer the conductor had a larger suitcase than the other. Both suitcases were under the women's legs. Plaintiff testified the end of the larger suitcase, nearer the front end of the car, stuck out into the aisle; that she first noticed the larger suitcase was out a little in the aisle as she was nearing home. Later, she testified she saw the suitcases when she first boarded the car; that the larger one was on a slant out in the aisle then; and she insisted this testimony was correct. Plaintiff estimated the distance she rode on the car was about five miles and this occupied from 20 to 30 minutes. According to plaintiff's claim, the suitcase of the lady immediately next to her had nothing to do with the accident. She said both these ladies were on the street car when it reached St. Jean avenue, about five miles from where she boarded it. After the car started from a stop at St. Clair avenue, plaintiff signaled for a stop at Lillibridge avenue. As the car approached Lillibridge avenue, plaintiff says she arose from her seat, faced the side of the car on which she had been seated, took a strap in each upstretched hand, and was moving slowly to her right, facing the two women with suitcases, on her way to the conductor's position to pay her fare and get out, when the street car jerked suddenly, pulled her hands loose from the straps and threw her toward the fare box; that in consequence she threw out her right foot, to brace herself, toward the back of the car; that it struck the larger suitcase, and she fell to the floor holding her right hand over her eyes to avoid hitting her head against the pipe railing around the conductor's seat. She claims the combination of the jerk of the street car and the striking of plaintiff's foot against the suitcase caused her to fall to the floor, with the resulting injuries. After her fall, plaintiff was assisted to her feet and took a standing position in front of the fare box. She tried to put her right foot down and found she could not stand upon it. She sat down, got her money out, hobbled across the aisle, paid her fare, and told the conductor she wanted to get off at St. Jean, as the car had passed Lillibridge. She testified she told the conductor she was injured and he asked her if she had fallen and she replied in the affirmative; the conductor said he did not see her fall, but he asked her if she had fallen over the suitcases. On direct examination, she said she replied "I must have." Later, she said she didn't use the word "must." She testified she then took the seat the lady with the larger suitcase had occupied next to the fare box as that lady had left the car with the suitcase soon after the accident. Plaintiff said she asked to be taken to her doctor, but was obliged to ride to the end of the line and back a mile or so to the car barns, as injured people, by the rules of the railway department, are to be taken home and not discharged or set down along the line. A police scout car was waiting at the car barns and plaintiff was taken to her home a short distance away.

Neither of the ladies claimed to have had the suitcases was in court. Plaintiff made a written statement after the accident. In it, she said nothing about the suitcases. She made no statement about the suitcases to her doctor in describing the accident on the same day. In answer to a hypothetical question by plaintiff's counsel, her physician testified her injury could have been sustained in the manner she described. Plaintiff then rested.

Defendant made a motion for directed verdict on the ground plaintiff failed to establish freedom from contributory negligence or to establish actionable negligence on the part of defendant and that if, for the purpose of argument, such negligence on the part of defendant had been established, it was not shown to have been the proximate cause of plaintiff's injury. The court reserved decision on the motion. Defendant introduced testimony in defense, putting the conductor on the stand who testified he saw no suitcases on the trip when plaintiff was injured; plaintiff, in her conversation with him, did not mention the suitcases; he noticed no jerks of the car while she was riding; some people were standing in the car on that trip. Two men were sworn who claimed to have been riding on the car at the time plaintiff claims to have been injured and heard a commotion on the car "at or about St. Jean avenue." They did not recall anything unusual in the operation of the car. They claimed to have been riding back of the motorman and noticed no jerks, nor was their balance disturbed though they were standing. One could not recall whether other people were standing in the aisle of the car, but the other testified some were.

Plaintiff then took the stand and testified she had never seen the two men who testified they were standing on the front platform and that neither was on the street car talking to the motorman at the time she was hurt. Plaintiff then rested.

Defendant renewed its motion previously made. The court, reserving its decision on that motion under the Empson act (3 Comp. Laws 1929, § 14531 et seq.), submitted the case to the jury which deliberated for two days, then disagreed and was discharged. Thereupon, defendant moved the court to enter a judgment of no cause of action, as provided in 3 Comp. Laws 1929, § 14535. This motion was argued and granted, the trial court determining, in accordance with 3 Comp. Laws 1929, § 14535, the motion for a directed verdict should have been granted at the close of plaintiff's case. Judgment for defendant was entered.

Plaintiff appeals, claiming there was testimony tending to show defendant's negligence, that such negligence was the proximate cause of her injury; the court passed upon plaintiff's credibility as a witness, and that the credibility of plaintiff as a witness was a jury question, relying uponTuttle v. Railway Co., 193 Mich. 390.

There are cases relating to the operation of steam railroads which indicate that a negligent and sudden jerk of the train when the passenger is in the act of alighting may be ground for recovery. Wood v. Railway Co., 49 Mich. 370 (4 Am. Neg. Cas. 35); Smalley v. Railway Co., 131. Mich. 560. This court has held that sudden increases and decreases in the speed of street cars, whether a passenger is seated or standing, are subject to a different rule. Schultz v. Railways Co., 158 Mich. 665 (27 L.R.A. [N. S.] 503); Ottinger v. Railway, 166 Mich. 106 (34 L.R.A. [N. S.] 225, Ann. Cas. 1912D, 578, 3 N.C.C.A. 323);Bogart v. City of Detroit, 252 Mich. 534. Sudden jerks and jolts in the movement of railroad trains or street cars are generally accepted as among the usual incidents of travel which every passenger by experience has learned to expect to some extent. 10 Am. Jur. p. 213, § 1343. Sudden jerks or jolts in stopping to let off and take on passengers, and in starting, are among the usual incidents of travel on street cars which every passenger must expect, and the mere fact that a passenger is injured thereby will not of itself make out a case of negligence which will render the carrier liable. 4 R. C. L. p. 1210 et seq., § 634. Though the carrier may be held liable if the jerk or jolt is unnecessarily sudden or violent. 4 R. C. L. p. 1210 et seq., § 634. And unusually sharp jerks or violent jolting, due to the negligent operation of the car or the negligent failure to maintain the track properly, has been viewed as imposing liability on the carrier for resulting injuries to the passenger. 10 Am. Jur. p. 214, § 1343; 10 C. J. pp. 973, 974; 2 Moore on Carriers (2d Ed.), p. 1222; 1 Nellis on Street Railways (2d Ed.), p. 593. The rule is, that a street railway cannot be held liable for resulting injuries to passengers due to sudden jerks in starting, stopping or operating such conveyances if they are maintained in a serviceable condition and operated in the customary manner.

Plaintiff does not claim she is entitled to recover solely by reason of the jerking of the car, but relies upon that fact in connection with other circumstances. The other circumstance upon which plaintiff relies is the fact a suitcase was in the aisle of the street car. There is no testimony which would take this case out of the rule established by the authorities above so far as the sudden jerking of defendant's car is concerned. Plaintiff contends she suffered no injury whatever from the fall occasioned by the jerk alone; that her injuries were caused by the twist of her right ankle striking the end of the suitcase just before her foot reached the floor to sustain the whole weight of her body as thrown by the jerk, her foot reaching the floor before the ankle could be straightened as the foot slid down the end of the suitcase to the floor. The thing that did the damage was a twist on the ankle like the twisting snap of a corn shucker or the torque of the drive shaft of a motor.

Plaintiff cites cases where there were suitcases and other impedimenta in aisles of carriers by steam railroad. These cases fall mainly into two classes, — those where the articles in the aisles were part of the equipment of the car itself, and those where they were not equipment but where the aisles were improperly lighted.

It is not negligence as a matter of law for the conductor of a street car of ordinary type with a seat running lengthwise of the car on each side to suffer the bag or satchel of a passenger to remain on the floor of the car in the aisle where it is not so placed as to obstruct free passage out of or into the car, for in such case the street car company is not bound to exercise toward a passenger the utmost diligence in providing against those injuries that can be averted by human foresight. Pitcher v. Railway Co., 196 Mass. 69 (81 N.E. 876, 13 L.R.A. [N. S.] 481, 124 Am. St. Rep. 513, 12 Ann. Cas. 886).

Where a passenger is injured by stumbling over a basket or valise which another person has placed in the aisle of the vehicle, the carrier will not be liable for the injury unless it omitted to exercise reasonable care in keeping the aisle clear. 2 Hutchinson on Carriers (3d Ed.), p. 1033; 1 Nellis on Street Railways (2d Ed.), p. 628; 2 Moore on Carriers (2d Ed.), p. 1200.

A street railway company is not an insurer of the safety of those it undertakes to transport. It fulfills the requirement of due care when it exercises that skill, diligence and foresight for the safety of its passengers consistent with the practical conduct of its business. 10 Am. Jur. p. 170, § 1247. The liability of a carrier for an injury to a passenger caused by obstruction of a car aisle or platform by property of another passenger arises only in case the carrier has been negligent in permitting the obstruction. Ordinarily, the carrier is liable only where one of its employees in charge of the car knows of the obstruction in time to have it removed before it can cause injury; or where the obstruction exists for such a length of time that an employee, in the proper discharge of his duties, should know of its presence. 10 Am. Jur. p. 197, § 1307; Beiser v. Railway Co., 152 Ky. 522 (153 S.W. 742, 43 L.R.A. [N. S.] 1050); Burns v. Railroad Co., 233 Pa. 304 (82 A. 246, Ann. Cas. 1913B, 811); Kantner v. Railway Co.,236 Pa. 283 (84 A. 774); Garner v. Railway Co., 211 Ill. App.? 201; Phinney v. Railway Co., 285 Mass. 207 (189 N.E. 52). In the last case, it is said:

"The carrying of hand bags by passengers in street cars and their deposit occasionally on the floor of the car are ordinary incidents of travel."

In Costello v. Railway Co., 205 Iowa, 1077 (217 N.W. 434), plaintiff, a passenger on defendant's train, as she approached her station, got up and went down the aisle to leave the car. She saw some luggage which stuck out into the aisle about 14 inches. Other passengers went around it. Plaintiff saw it just before she hit it. She testified, "I went to step out of the way, and just then the train gave a little jerk, and I lost my balance and hit it." It was held the trial court should have directed a verdict for defendant.

The mere fact baggage is in the aisle and a passenger stumbles over it does not raise a presumption of negligence on the part of the railroad company. Dusenbury v. Railroad Co.,95 Misc. 241 (158 N.Y. Supp. 681).

In Van Winkle v. Railroad Co., 46 Hun (53 N.Y. Sup. Ct.), 564, plaintiff sought to step over a basket and umbrella in the aisle and caught her foot, stumbled and was injured. The court said:

"The plaintiff, with full knowledge of the obstruction in her pathway, undertook to pass, unassisted, between the two men, over the basket and umbrella, and by that act plainly assumed all the dangers and risks of such a passage, and the disastrous results of such a hazardous undertaking cannot be charged against the defendant."

The law requires normal persons, possessed of their faculties, to exercise them for their own protection.Evans v. Orttenburger, 242 Mich. 57. The burden was upon plaintiff to show she was free from contributory negligence and acted with due care.

In denying a right to recover in Carpenter v. Herpolsheimer'sCo., 278 Mich. 697, it was said:

"The difficulty with plaintiff's case is that there was no evidence that the box which she claims was in the aisle and tripped her was a purse box; nor, if it was, that it had been piled negligently under the table; nor how it got into the aisle; nor that defendant had knowledge of its being there; nor that it was in the aisle long enough so defendant should have known of it."

On a motion for a directed verdict, testimony and legitimate inferences to be drawn from established facts most favorable to the party against whom the verdict is sought to be directed must be accepted. 1 Searl's Michigan Pleading Practice, § 279.

Plaintiff first claimed she did not see the suitcase which she tripped over until nearing home and thereby established that the suitcase was not in the aisle a sufficient length of time to charge defendant with notice. Carpenter v.Herpolsheimer's Co., supra. She later claimed she saw the suitcases when she entered the car and the larger one stuck out in the aisle and was not moved throughout the trip; that she informed the conductor after the accident she had fallen and was hurt; that it sort of came to him the suitcases were there and he asked if she fell over them, and she replied that she had. There was no testimony tending to show the conductor knew of the presence of the suitcases in the aisle before plaintiff fell. If plaintiff saw the suitcases when she entered the car, one of them sticking out in the aisle, she barred herself from a right to recover upon the ground of contributory negligence.Costello v. Railway Co., supra. We think the trial court arrived at a correct conclusion.

Judgment affirmed, with costs.

WIEST, C.J., and BUTZEL, BUSHNELL, SHARPE, CHANDLER, NORTH, and McALLISTER, JJ., concurred.