Fuchs v. Dallas Ry. & Terminal Co.

I regret that I cannot agree with my brethren in the disposition of this case. Giving the pleadings the most liberal construction, as we are required to do as against a general demurrer, I think the demurrer was properly sustained. I do not think the pleadings allege any actionable negligence on the part of appellee, nor any proximate casual relation between the alleged acts of negligence on the part of appellee and the injury. Under the allegations in the petition, the two acts, to wit, the invitation or permission on the part of appellee's motorman for appellant to alight from the street car at the switch rather than remain on the car until it reached the street crossing, and the operation of the motorcycle, have no causal connection with each other. In order for appellee to be liable its act must have been at least a proximate cause of the injury. Franklin v. Houston Electric Co. (Tex.Civ.App.) 286 S.W. 578; Haney v. Texas Pacific Coal Co. (Tex.Civ.App.) 207 S.W. 381.

The rule, supported by the weight of authority, seems to be that a street car company is not liable for injuries inflicted by a motorcycle or other vehicle to a passenger who has alighted safely from the street car onto the pavement of the street, or who is injured by a moving motor vehicle while in the act of alighting from the street car. Jacobson v. Omaha Council Bluff St. Ry. Co., 109 Neb. 356, 191 N.W. 327, 31 A.L.R. 563; Lindgren v. Puget Sound International Ry. Power Co.,142 Wash. 546, 253 P. 791; St. John v. Connecticut Co., 103 Conn. 641,131 A. 396; Ruddy v. Ingebret, 164 Minn. 40, 204 N.W. 630, 44 A.L.R. 159; Oddy v. West End Street Ry. Co., 178 Mass. 341, 59 N.E. 1026, 86 Am. St. Rep. 482; Louisville R. Co. v. Saxton, 221 Ky. 427, 298 S.W. 1105; Hammett v. Birmingham Railway, Light Power Co., 202 Ala. 520,81 So. 22: Chesley v. Waterloo, C. F. N. R. Co., 188 Iowa 1004,176 N.W. 961, 12 A.L.R. 1366; Klingensmith v. West Penn Rys. Co.,279 Pa. 336, 123 A. 787; Reining v. Northern Ohio Traction Light Co., 107 Ohio St. 528, 140 N.E. 84; Jernigan v. Georgia Railway Power Co., 31 Ga. App. 273, 120 S.E. 439; Franklin v. Houston Electric Co. (Tex.Civ.App.) 286 S.W. 578. From the above authorities, I think the rule established is that, when the place at which a street car company permits a passenger to alight is a smooth surface, with no dangers surrounding the same occasioned by the condition of the earth, the street car company is not responsible for damages occasioned a passenger while alighting from the car by being struck by a passing motor vehicle.

Appellant in her petition alleged that there was a legal restraint of motor traffic passing a street car while stopped to permit passengers to alight. The only law relative to this matter that I have found is subdivision L of article 801, Penal Code of Texas, which provides specifically that it shall be unlawful for any person to pass a street car which is stopped for the purpose of receiving or discharging passengers, and this is the only provision of the law pleaded by appellants. Said statute does not attempt to fix the place where or under what conditions a street car may be stopped for permitting passengers to alight. Neither does it provide any way for the driver of a motor vehicle to ascertain for what purpose the same is stopped, but makes it a violation of law for any person driving a motor vehicle to pass a street car that has stopped for the purpose of letting a passenger alight. Many of the decisions above cited are where passengers were permitted to alight not at a regular or at the usual stopping place of a street car. Under all of the decisions, so far as I have found, a street car may stop at any place for the purpose of letting a passenger on or off, and it becomes the duty of a person driving a motor vehicle, before he passes a stopped street car, to ascertain whether it has stopped for the purpose of letting a passenger on or off of said car. Under the statute the same regulation was and is in existence in so far as the control of motor traffic is concerned when the street car stopped on the switch and permitted appellant to alight as would have been if it had stopped at Beaumont street and permitted her to alight.

I think the general rule, supported by an Overwhelming weight of authority, is that a street car company is not responsible for injuries caused by a passing motor vehicle received by a passenger when alighting from a Street car at an unusual stopping place or when alighting in the middle of a block or at a switch, since the street car company is not an insurer of the passenger's safety while getting on or off of the street car. Neither does it have any control or supervision over motor vehicles passing the street car, and the operators of a street car have a right to presume that those passing the street car will observe the state law relative thereto. As before stated, there is no contention that there was any relationship existing between the driver of the motorcycle which struck appellant, and appellee. They were two separate, disconnected agencies. There is no proximate relationship between the stopping of the street car and permitting appellant to alight, and her being struck by said motorcycle. Appellant in her pleadings does not claim that she could not see where she was alighting from the street car. Neither does she allege that she made any effort to protect herself or to ascertain whether a motor vehicle was coming. Neither does she claim that the motorman was in any way negligent in not having seen the motor vehicle or in not having warned her of the dangers incident to her getting off of the street car at the place she did alight. She alleged that she was a strong, healthy, robust young woman with all her faculties, about her.

I think the judgment of the trial court in sustaining a general demurrer was correct, and that the judgment should be affirmed.