Zurcher v. Portland Ry. L. &. P. Co.

Mr. Justice Burnett

delivered the opinion of the court.

Mrs. Zurcher and her 18 year old daughter testify, in substance, that the plaintiff stepped upon the car and took hold of the handhold, but before she could safely enter the car it was started with a sudden jerk, whereby she was thrown to the pavement, in which position the delivery wagon spoken of ran over her. One of defendant’s conductors on another car and three'disinterested bystanders testified that, while the car in question was in motion, the plaintiff approached it at about its middle, and before she reached it she turned around, when the wagon knocked her down; that the car did not touch her; and that she fell away from it. The conductor and motorman in charge of the car both testified that they did not see her at all and knew nothing of the accident until they were told of it. An inspection of the complaint in this connection shows that it might all have happened just as the defendant’s witnesses describe it, and still the narrative of that pleading be true. Indeed, she avers she was in the act of boar ding, the' car, but that might properly include her movement from her former situation on the sidewalk towards the car track in attempting to cross the street. She did not allege that she stepped upon or even touched the car, or that it struck her so as to cause the fall. She says she lost her balance, but how the car caused that result is not explained in the complaint.

Among other assignments, the defendant complains that the court committed error in refusing to give the following instruction requested by the defendant:

“Before a person can recover in a case of this kind it is necessary to show that not only did she intend to board the car, but had given some notice to the persons in charge of the car so that the persons in charge of said car knew, or in the exercise of reasonable care should have known, that the person was intending to board said car, and if the persons in charge of said car did not know that the person intended to board the same, and there was nothing reasonable to lead them to believe that the said party was intending to get upon said car, then I must instruct you that the defendant would not be liable.”

This action is based upon the theory elaborated in the complaint that the defendant offered to transport the plaintiff as a passenger, and that the latter had accepted the offer in such a way as to constitute a contract of carrier and passenger between herself and the defendant. Such’ a contract, although generally proven by the acts of the parties and attendant circumstances, rather than by any express stipulation, must, like other agreements, result from a meeting of the minds of the parties. Considered as an offer and acceptance, it has often been held that stopping a car at the usual place for receiving passengers is an offer of the carrier to accept passengers, and many cases teach us that even slacking the speed of the car at such a place is likewise such an offer. On the other hand, it is equally well settled that, after the car has stopped, a subsequent starting of the same is a withdrawal of such an offer, so that a futile attempt to board the car will not create the contract of passenger and carrier.

The charge of the court reported in the record elabor- ■ ates to a degree upon the duty of the defendant as a contracting party, but is silent as to the corresponding duty of the other contracting party, the plaintiff. In good reason, a person proposing to become a passenger on a street car moving along a busy street should perform some act or bring something to the notice of those in charge of the car to distinguish the intending passenger from others of the throng on the street. The gravamen of the charge here is a negligent breach of a contract of passenger and carrier. Under the issues formed, it became necessary to prove that contract by showing not only the offer of the defendant, but also the acceptance of the plaintiff. The design of the requested instruction was to bring to the notice of the jury the latter element of the contract in question and to remind them that unless the agreement alleged was proven there could be no recovery for its breach. In the case of Schepers v. Union Depot Railway Co., 126 Mo. 665 (29 S. W. 712), it is said:

“It must be conceded that there is difficulty in many cases in determining when the relationship of carrier and passenger begins and what acts of the parties are sufficient to create it. The difficulty is greater in case the carrier operates a street railway having no regular stations or station agents authorized to make contracts. In respect to such carriers passage must be taken hastily on the street at points prescribed by the rules of the carrier or by the police regulations of the municipality, yet one test applies alike to all, and that is the relation can only be created by a contract between the parties expressly or implied. There must always be an offer and request to be carried on one side and an acceptance on the other.”

Shearman & Redfield, Neg. (4 ed.), Section 448; Patt. Ry. Acc. Law, Sections 210, 214; 2 Am. & Eng. Enc. Law (2 ed.), 742. Duchemin v. Boston El. Ry. Co., 186 Mass. 353 (71 N. E. 780: 66 L. R. A. 980: 104 Am. St. Rep. 580: 1 Ann. Gas. 603), is very similar to the case at bar. The case stated for the plaintiff there was that, as the car approached him, he went toward it for the purpose of entering it, having given the motorman in control notice of his intention so to become a passenger, and as he was about to get on the car the trolley pole fell, striking a sign upon the car, and the pole and sign then both struck him. The case turned upon whether or not there was a contract of passenger and carrier and the degree of care attendant upon such a relation. The court discusses the matter exhaustively and concludes as follows: ' ■

“So long as he remained a mere traveler on the highway, although upon it for the sole purpose of taking the car, the defendant did not owe him any other duty than that which it owed to any other person on the highway. Whether one just has dismounted from a street car or just is about to board it, he does not have the rights of a passenger.”

A valuable note on this subject is appended to the report of the case in 104 Am. St. Rep.

Without alleging it, the plaintiff, as we have seen, testified that she stepped upon the car while it was stationary, which, upon all the authorities, would con-, stifute an acceptance of the defendant’s offer to take her as a passenger. On the other hand, the testimony for the defendant tends to show that the plaintiff did nothing to distinguish her from any other traveler along the street; the deduction being that there was no showing that she gave the defendant any notice of her acceptance of its offer so as to form the contract, the breach of which is laid as the ground of damages. The defendant was entitled to have its theory of the case presented by the instruction mentioned, and the court erred in refusing the request of the defendant in that behalf.

It seems that the trial was concluded near the hour of adjournment for the day. The parties agreed that the jury might return a sealed verdict. The court instructed them that three-fourths of the jury might return a verdict under the provisions of the present Article VII of the State constitution, in which case at least nine of them should sign the verdict; but that if their decision was unanimous it would be sufficient if the foreman alone signed it. See Laws 1911, p. 7. The judge also told them that, in the event of reaching a decision, they could either leave the verdict in the custody of the foreman or of the bailiff in charge of the jury, to be returned into court at the beginning of the next session. On the following day, although the jurors were in attendance upon the court, they did not assemble to render the verdict; but it was handed to the court by the bailiff, and, in the presence of the counsel for both parties, was read and ordered filed. It was signed by the foreman alone, but two jurors of the panel made affidavits in purport that in fact the verdict was the decision of only nine of the jurors from which the affiants dissented, and that the decision was a quotient verdict, reached by a division by nine of the sum of all the estimates of the nine jurors participating in the verdict. This procedure was challenged only by a subsequent motion for a new trial, but, as it is not necessary to a decision of the case, we dismiss that feature with the observation that it is safer to proceed in the manner laid down by the statute in the reception and publication of a verdict; that the affidavits of the jurors impeaching the verdict would have more force if made before the publication of the verdict; and, lastly, that it is not safe for parties to take the chance of a verdict and afterwards make complaint.

Other errors are assigned by the defendant, but we deem it unnecessary to consider them.

The judgment is reversed, and the case remanded foi further proceedings. Reversed : Rehearing Denied.