Clark v. Durham Traction Co.

• Decision Date: 11 April 1905
• Citation: Clark v. Durham Traction Co., 138 N.C. 77, 50 S.E. 518 (N.C. 1905)
• Parties: CLARK v. DURHAM TRACTION CO.
• Court: North Carolina Supreme Court

50 S.E. 518

138 N.C. 77

CLARK v. DURHAM TRACTION CO.

Supreme Court of North Carolina

April 11, 1905

Appeal from Superior Court, Durham County; Bryan, Judge.

Action by W. Y. Clark against Durham Traction Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

In an action for injuries to a passenger by the premature starting of a street car, an instruction authorizing a recovery of damages for actual nursing, medical expenses, and "loss of time, or loss from inability to perform ordinary labor or capacity to earn money," was proper.

This is a civil action tried before his honor Judge Bryan in the superior court of Durham county for the recovery of damages for injury by the negligence of the defendant. The court submitted the following issues: "(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Ans. Yes. (2) If so, did the plaintiff, by negligence on his part, contribute to said injury? Ans. No. (3) What damages, if any, is plaintiff entitled to recover? Ans. $500." From the judgment rendered, the defendant appealed.

Manning & Foushee, for appellant.

Winston & Bryant, for appellee.

BROWN J.

The first proposition which is presented by several of the exceptions of the defendant brings up the question as to whether or not the plaintiff was a passenger on the defendant's line at the time of the injury sustained by him. The court charged the jury, if they believed the evidence in the case to be true, to find that the plaintiff was a passenger. In this instruction we see no error. The only testimony upon this point is that of the plaintiff himself and the testimony of the defendant's witness Sorrell. We see nothing in the testimony of the latter tending to contradict the statement of the plaintiff as to his relation to the defendant company at the time of the injury. The plaintiff stated that he boarded the street car of the defendant in East Durham, paid his fare, received a transfer for the Main Street Line, and was brought to the Mangum street connection; got off at the crossing of Main and Mangum streets for the purpose of boarding the other car, and attempted to do so. The car stopped at the usual place for the transfer of passengers. Two men preceded him, and boarded the car successfully. Plaintiff followed immediately behind got hold of the rod on the west side of the vestibule at the end of the car with his right hand, and put his foot on the steps of the car. Before he got his weight entirely on the car, it started. At that time he had his right foot on the steps of the car and his right hand on the vestibule rod. No warning was given. The conductor was not present at that end of the car. Plaintiff says he saw the conductor sitting close to a young lady. No one helped him on the car. The car started suddenly, and jerked the plaintiff down on the pavement. These uncontradicted facts, we think, justify the court in charging the jury that, if they believed them to be true, plaintiff was a passenger on the defendant's line. It is the settled law in this state, so far as steam railroads are concerned, that when a person comes upon the premises of a railroad company at the station, and has a ticket, or with the purpose of purchasing one, he becomes thereby a passenger of the company. Tillett v Railroad, 115 N.C. 665, 20 S.E. 480; Seawell v Railroad, 132 N.C. 859, 44 S.E. 610. The authorities in other states, where electric lines are more extensively operated than in this, all go to show that the same principle is applied to the operation of surface railroads whether operated by steam or electricity. The plaintiff had purchased a ticket--that is to say, he had paid his fare, and had boarded defendant's line in East Durham--and while on the car had received a transfer from one portion of the line to another. He got off at the usual place where passengers alight for the purpose of boarding the other car. The Mangum street car, which the plaintiff desired to board, stopped for the purpose of taking on passengers. Plaintiff, with his transfer in his pocket, approached the car with two other passengers, and at the time of the injury had one foot upon the steps of the car and his right hand hold of the rod. These facts plainly make him a passenger. Mr. Joyce, in his work on Electric Law, § 528, says: "A passenger on a street railway is a person whom the company has undertaken to carry by virtue of a contract, express or implied. To create the relation of carrier and passenger it is not necessary for one to have entered the car, but the relation may exist before a person has actually boarded a car." It has been held in several cases where a person had obtained a transfer ticket from one car which entitled him to ride on another car of the defendant company, and he had approached the car, standing to receive passengers, when the car started, and he was thrown to the ground, that such person is a passenger. Washington & G. Ry. Co. v. Patterson, 9 App. D. C. 423; St. Ry. Co. v. Kaspers, 85 Ill.App. 316; Keator v. Traction Co., 191 Pa. 102, 43 A. 86, 44 L. R. A. 546, 71 Am. St. Rep. 758. The person, in transferring from one car to the other, is still a passenger; the transfer being but a part of the trip, for the whole of which the company agrees to convey in safety.

Was the defendant company guilty of negligence? His honor instructed the jury if they believed the evidence to answer that issue "Yes." In this instruction we are likewise unable to discover any error. The evidence in the case was practically undisputed, and we do not see how any reasonable mind can draw more than one inference from it. In addition to what we have already quoted from the plaintiff's testimony, he testified that when he put his right foot on the steps of the car, and before he got his weight on his foot, the car started. No warning was given. He was jerked on the pavement. His shoulder was hurt, his leg was twisted and knee hurt, and he was dragged 8 or 10 feet before he got loose. The car then ran 50 or 100 feet, and then came back. No one helped him on the car. The conductor was not on the platform. After he was hurt he took the car, and went on to his destination. After he reached home he went to bed, and stayed four or five weeks. He suffered great pain, and has used crutches ever since. Sent for the doctor. He further testified that before he was hurt his condition was as good as most men of his age. That he is 84 years old. That he did not use crutches before his...