Ferrell v. Washington Water Power Co.

• Decision Date: 08 January 1914
• Docket Number: 11899.
• Citation: 145 P. 442,83 Wash. 319
• Parties: FERRELL et ux. v. WASHINGTON WATER POWER CO.
• Court: Washington Supreme Court

145 P. 442

83 Wash. 319

FERRELL et ux. v. WASHINGTON WATER POWER CO.

No. 11899.

Supreme Court of Washington

January 8, 1914

Department 1. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by E. O. Ferrell and his wife against the Washington Water Power Company. From a judgment of nonsuit plaintiffs appeal. Reversed and remanded for new trial.

W. H Plummer and Jos. J. Lavin, both of Spokane, for appellants.

Post Avery & Higgins, of Spokane, for respondent.

CHADWICK J.

Plaintiff Anna Ferrel was a passenger on a Riverside avenue street car operated by the defendant company in the city of Spokane. She intended to alight at Stevens street, which is one block east of Howard street. When the car, which was a pay-as-you-enter car having gates at the rear, arrived at Howard street plaintiff started to alight. She was told that she had not arrived at her destination, which was one block to the east. She stood in the aisle, holding a perpendicular handlebar inside of the door leading into the vestibule of the car. The vestibule was a few inches lower than the floor of the car. As the car approached its stopping place on the off side of Stevens street, the conductor opened the gates while the car was still moving. Appellant says that, thinking the car had stopped, she stepped down into the vestibule, when within a moment of time the car gave a sudden jerk or lurch forward and she was thrown out of the car and onto the pavement, sustaining the injuries of which she complains. A further statement of the facts is unnecessary to a discussion of the legal principles involved. Plaintiff appeals from a judgment of nonsuit.

The determinative question is, What was the proximate cause of the injury? It is insisted that there is no showing of negligence in that the opening of a gate upon a street car is not an invitation to a passenger to alight, and, further that a showing that the car gave a sudden jerk or lurch is not enough to satisfy the law, which demands that there be a showing of negligent operation upon the part of the motorman, or that the track or equipment was defective. An answer to the question, What was the proximate cause of the injury? will be decisive of the case. Respondent relies upon the following cases: Crowley v. Boston Elevated Ry. Co., 204 Mass. 241, 90 N.E. 532; Hannon v. Boston Elevated Ry. Co., 182 Mass. 425, 65 N.E. 809; Gagnon v. Boston Elevated Ry. Co., 205 Mass. 483, 91 N.E. 875; Bullock v. Butler Exchange Co., 22 R.I. 105, 46 A. 273; Cashman v. N. Y., N.H. & H. Ry. Co., 201 Mass. 355, 87 N.E. 570; Wile v. Northern Pacific Ry. Co., 72 Wash. 82, 129 P. 889; McGann v. Boston Elevated Ry. Co., 199 Mass. 446, 85 N.E. 570, 18 L. R. A. (N. S.) 506, 127 Am. St. Rep. 509; Allen v. Northern Pacific Ry. Co., 35 Wash. 221, 77 P. 204, 66 L. R. A. 804; and Work v. Boston Elevated Ry. Co., 207 Mass. 447, 93 N.E. 693. In many of these cases it is held, under the facts occurring in the particular case, that the opening of the door or gate of a car or elevator is not an invitation to the passenger to alight from or enter the vehicle. The cases relied on were reviewed and were the subject of consultation in the case of Atwood v. Washington Water Power Co., 79 Wash. 427, 140 P. 343. We were there of opinion that a hard and fast rule that the opening of a door or gate on a moving vehicle is not an invitation to a passenger, could not be laid down. Whether it was such invitation was a mixed question of law and fact to be resolved in the light of all the attending facts and circumstances. It is...