Marsh v. the Rhode Island Co.

This is an action of trespass on the case for negligence. The plaintiff's declaration originally in one count, alleged that the plaintiff was a passenger on one of defendant's cars; that said car came to a full stop at the corner of Dorrance and Weybosset streets; that while she was stepping from the body of the car to the footboard the car was suddenly and without warning started forward, whereby she was thrown to the ground and injured.

Subsequently two additional counts were filed as the second and third counts of the declaration. These additional counts were demurred to and the demurrer was sustained as to the second count and overruled as to the third count.

The third count alleged that the defendant's car was about to come to a stop near the corner of Dorrance and Weybosset streets, upon a signal given by the conductor; that the plaintiff was getting ready to alight from the car and that before she could alight therefrom the car was started ahead at great speed, without warning to her, and that she was thereby thrown to the ground and injured.

The jury returned a verdict for the defendant. A motion for a new trial by the plaintiff was denied and the case is now before this court upon the plaintiff's bill of exceptions.

The first exception I think is properly disposed of in the majority opinion of the court.

The second exception is to the exclusion of the third count from the consideration of the jury. I think that this exception should be overruled. There was no testimony whatever under this count which should have been submitted to the jury. The plaintiff's daughter, who accompanied her at the time of the accident, testified positively, and without any reservation whatsoever, that the car came to a full stop, and that while her mother was endeavoring to alight therefrom the car was suddenly started, throwing her to the ground. The testimony of the witnesses for the defendant was that while the car was slowly moving the plaintiff stepped therefrom to the ground and thus sustained her fall. No witness upon either side testified or gave any testimony from which it might be inferred that the speed of the car was changed while the plaintiff was attempting to alight therefrom as alleged in said third count. I cannot agree with the majority of the court in assuming that the plaintiff's daughter might have been mistaken as to the car coming to a full stop and that the jury under the testimony would be warranted in considering that the plaintiff was thrown from the car by a sudden acceleration of speed, there being no testimony whatever to support such an assumption.

The testimony as to the position in which the plaintiff lay upon the ground after she fell is undisputed. All of the witnesses agree that she lay with her head toward the front of the car. This seems to me to fully corroborate the testimony of the defendant's witnesses that she was thrown by stepping to the ground while the car was moving slowly and not through any sudden starting of such car or the sudden acceleration of its speed. If the car had been at a full stop, with the plaintiff proceeding to alight therefrom and upon the runningboard, and it had then suddenly started, the result would have been to pull the plaintiff's feet from under her in the direction in which the car was going and would have caused her to fall with her head toward the rear of the car. If the car had been moving at a slow speed and there had been a sudden acceleration of speed the result to the plaintiff, so far as her position upon the ground was concerned, would have been the same. If, however, the plaintiff stepped from the slowly moving car to the ground her feet, upon reaching the ground, would have been suddenly arrested causing her body to be projected in the direction in which the car was going, that is to say, she would be thrown upon the ground with her head toward the forward end of the car and that was the position of the plaintiff at the time of the accident. Her position upon the ground, therefore fully corroborates the testimony of the defendant's witnesses that she stepped to the ground from the moving car and would seem to be conclusive upon that point.

The third exception is to a portion of the charge to the jury, as follows: "If, on the other hand, the car hadn't come to a full stop, she being a woman some sixty-four years of age, . . . whatever chances a man is willing to take is one thing, but a lady, sixty-four years of age, encumbered by her skirts, who attempts to step off a car when it is in motion, is guilty of negligence, negligence which would prevent her from recovering, but that is outside the issue here, because the issue here is as to whether the car was at a full stop. . . . If the car had come to a full stop and she started to get off, the starting of that car while she was in the act of getting off would make the company liable; and if, on the other hand, she saw fit to step off while it was in motion she took her chance and would have to abide by the consequence."

I do not think that the plaintiff's exception to this portion of the charge should be sustained. I think that the court while, perhaps, somewhat unguarded in its statement of the law in the early part of said quotation, in its final statement of the law as applicable to the present case was correct. As the court said, if the car had come to a full stop and the plaintiff started to get off, the starting of the car while she was in the act of getting off would make the company liable; and if, on the other hand, she saw fit to step off while it was in motion she took her chance and would have to abide by the consequences. There were only two questions to be submitted to the jury under the plaintiff's declaration and upon the testimony as presented; (1) did the car come to a full stop and suddenly start while the plaintiff was getting off; (2) did the plaintiff step from the slowly moving car to the ground. There was no question of contributory negligence which should have been left to the jury. The jury could only properly find one of two things; (1) that the defendant was negligent in suddenly starting its car after it had been brought to a full stop, or (2) that the plaintiff was injured through her negligence in stepping from the moving car to the ground.

The majority opinion cites the case of Rathbone v. UnionR.R. Co., 13 R.I. 709, in support of its finding that the question of contributory negligence should have been left to the jury, but I do not think that the decision in that case applies to the case at bar. In the Rathbone case the court said, in stating the facts, — "The evidence for the plaintiff tended to show that the car had been stopped at the request of another passenger, and that while it was so stopped the plaintiff alighted, and while she was in the act of alighting the car was started, and she was thrown to the ground. The evidence for the defendant tended to show that the plaintiff alighted while the car was still in motion at a slow rate of speed, and that the accident was caused by the sudden acceleration of speed. It was proved without denial that the plaintiff gave no notice to the conductor or driver of the car that she desired to alight, and also that the starting of the car, or the acceleration of speed, whichever it was, took place in obedience to the signal of the conductor, given for that purpose, without knowledge on his part that the plaintiff desired to alight."

The defendant requested the court to charge the jury, as follows:

"1. That if the plaintiff, without notice to and without the knowledge of the driver or conductor, proceeded to get off the car, she cannot recover.

"2. That it was the duty of the plaintiff to have notified some one in charge of the car if she desired to get off, and that if she got off without such notice, or without the knowledge of those in charge of the car, she did so at her peril, and cannot recover.

"3. If the plaintiff attempted to get off the car without any notice to the conductor or driver, and was injured by the sudden starting of the car, such injury cannot be attributed to the negligence of the defendants, and the verdict should be for the defence.

"4. That if the plaintiff got off the car while in motion, it was negligence on her part, and she cannot recover, it being admitted that she was between fifty and sixty years of age, and that the time was between eleven and twelve o'clock at night."

In its opinion, the court said, — "In this case the car stopped, or was, apparently, about to stop for the convenience of a passenger, and in response to the signal of the conductor. We cannot say that under such circumstances it was the duty of the plaintiff, as a matter of laws to give notice that she also desired to alight. The stopping or slowing of the car in response to the signal, we think, might fairly be taken as notice by all the passengers, that all who desired to alight might take advantage of the opportunity;" and further, in reference to the 4th request, said, — "If the presiding justice had granted the fourth request he would have instructed the jury, in substance, that if they found the plaintiff alighted while the car was moving at a rate of speed however small, although they found that the accident resulted in no wise from the motion then subsisting, but solely from the improper increase of the rate of that motion, nevertheless they must find for the defendant."

This seems to be a very different case from the one at bar. In the Rathbone case the plaintiff was not thrown by stepping from the car to the ground, but by the act of the defendant in suddenly increasing the speed while she was still upon the car. The proximate cause of her fall was the sudden change of speed following the invitation to alight which had been extended to her by the signal of the conductor to stop the car.

The Rathbone case neither holds that a person who deliberately steps from a moving car to the ground and is thereby thrown down is not guilty of contributory negligence which would bar recovery nor that when the stepping from a moving car to the ground is the proximate cause of the accident the question of the plaintiff's contributory negligence should be left to the jury.

I think that, under the circumstances of the case at bar, the plaintiff in stepping from the moving car to the ground assumed the risk of injury, and if in so doing she received the injuries complained of she was guilty of contributory negligence as a matter of law. In finding a verdict for the defendant, the jury must have been satisfied that the defendant was not negligent and I think such verdict should not be disturbed, and that the fourth exception should also be overruled.

BAKER, J., concurs in the opinion of VINCENT, J.