Gulfport & Mississippi Coast Traction Co. v. Raymond

• Decision Date: 19 May 1930
• Docket Number: 28678
• Citation: 128 So. 327,157 Miss. 439
• Parties: GULFPORT & MISSISSIPPI COAST TRACTION CO. v. RAYMOND
• Court: Mississippi Supreme Court

128 So. 327

157 Miss. 439

GULFPORT & MISSISSIPPI COAST TRACTION CO. v. RAYMOND

No. 28678

Supreme Court of Mississippi, Division B

May 19, 1930

(Division B.)

1 CARRIERS.

Street car moterman was chargeable with knowledge of additional danger of discharging and taking on passengers, elsewhere than at street corners.

2 CARRIERS.

Street railroad had duty, not only to transport passenger safely to destination, but also to furnish her safe place to alight from car.

3 CARIEES.

Street railroad stopping car at unusual place had duty of warning alighting passenger of danger from passing vehicles.

4. APPEAL AND ERROR.

In determining propriety of directed verdict, evidence must be viewed in light most favorable to opposite party.

5 CARRIERS.

Negligence of street railroad in carrying passenger beyond destination and permitting her to alight at place more dangerous than usual place of discharging passengers held for jury.

6. TRIAL.

Refusal of instruction, exact principle of which was embodied in another given instruction, was not error.

7. CARRIERS.

Refusal of charge that passenger on street car ceases to be such when car stops and passenger steps in safety from car on street held not error.

8. DAMAGES Instruction on measure of damages recoverable for injury to street car passenger struck by automobile after alighting from car held not erroneous.

The principal criticism of the instruction relating to damages recoverable was that under the undisputed facts plaintiff was only entitled to nominal damages. However, if defendant was guilty of negligence proximately contributing to injury, plaintiff was entitled to full compensatory damages.

9. CARRIERS. Instruction authorizing recovery against street railroad for injuries to passenger struck by automobile after alighting heid not erroneous.

The instruction authorized a recovery in case of finding that defendant acting through motorman saw an automobile approaching, and knew or ought to have known that automobile was likely to strike passenger, and thereupon negligently permitted her to alight from street car at place of accident.

10. CARRIERS.

Instruction authorizing recovery against street railroad for injuries to passenger after alighting, in case of negligence in stopping car at place not reasonably safe, held not erroneous.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Harrison county, HON. W. A. WHITE, Judge.

Action by Elaidia Raymond against the Gulfport & Mississippi Coast Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Ford, White, Graham & Gautier, of Gulfport, and Baskin, Wilbourn & Miller, of Meridian, for appellant.

One who has alighted from the street car and is in safety upon the highway, is no longer a passenger and is thenceforth a traveller on the highway, and is subject to all the duties and obligations imposed upon such travellers, and the railway company is not responsible to him as a carrier for his safe passage from the street car to the sidewalk.

4 R. C. L., sec. 498, p. 1049; 25 R. C. L. 1220, sec. 89; 4 L.R.A. (N.S.) 729; 1912B Ann. Cas. 863.

Even if, however, the appellant were liable for nominal damages for not permitting appellee to alight at the regular stopping place, the appellant is not liable for the injuries inflicted upon her by the passing automobile for the reason that such injuries were not the proximate result of the negligence, if any, of appellant.

Natchez, etc., v. Lambert, 99 Miss. 310, 54 So. 836; 37 L.R.A. (N.S.) 264 and note; Dantzler v. Hurley, 81 So. 163; Hammett v. Birmingham Ry., Light & Power Co., 81 So. 22.

A street railway company which permits a passenger to alight from a car at a place not ordinarily used for discharging passengers, and where many automobiles are accustomed to pass, is not bound to warn him of the danger from passing cars, nor to protect him from such danger after he has left the car.

Chesley, Admr., etc., v. Waterloo, Cedar Falls & Northern R. R. Co., 12 A. L. L. 1366; Jacobson, Admx., etc., v. Omaha & Council Bluff Street Ry. Co., 31 A.L.R. 563; 4 R. C. L. 1047; 1 R. C. L. Supp. 1262; 4 R. C. L. Supp. 304; Ruddy v. Ingebret, 44 A.L.R. 159.

F. W. Elmer, Jr., of Biloxi, and Mize, Mize & Thompson, of Gulfport, for appellee.

A street car company, which owes a very high degree of care to its passengers, is guilty of the grossest negligence in permitting one of its passengers, who is seventy years of age, to get off in the middle of a block with an automobile one hundred and fifty feet away, approaching on the narrow street, after the street car had carried her beyond her stop.

Georgia R. & P. Company v. Ryan, 100 S.E. 713; Fitzgerald v. Des Moines City Railway Company, 207 N.W. 602; Wood v. North Carolina Public Service Corporation, 1 A.L.R. 942; Loggins v. Southern Utilities Co., 106 S.E. 822; Hammett v. Birmingham Railway Company, 81 So. 22; Jacobson v. Omaha Railway Company, 31 A.L.R. 563; Mahoning Light Company v. Leedy, 136 N.E. 198.

OPINION

Anderson, J.

Appellee brought this action against appellant in the circuit court of Harrison county to recover damages for an injury received by her while a passenger on one of appellant's street cars, which injury appellee alleged was caused by the negligence of appellant's motorman in operating the street car. There was a trial, resulting in a verdict and judgment in favor of appellee in the sum of one thousand five hundred dollars, from which judgment appellant prosecutes this appeal.

The errors assigned and argued are based on instructions refused appellant, and instructions granted appellee.

The following is deemed a sufficient statement of the case to develop the questions to be decided: East Howard avenue, in the city of Biloxi, runs east and west, and Holly street runs north and south. Appellee's home was near the northwest corner of the intersection of those streets. Appellee was injured about five-thirty in the afternoon. She was traveling east on Howard avenue on one of appellant's street cars, going to her home. Automobile traffic on East Howard avenue is always heavy. The Street car on which appellee was traveling was what is known as a one-man car; the motorman acts as both conductor and motorman. There were other passengers on the car besides appellee. Appellee and the motorman knew each other. As the car approached Holly street, appellee rang the bell in ample time to give the motorman notice that she desired to get off at her home near the northwest corner of the intersection of East Howard avenue and Holly street.

Appellee testified that the car stopped at its usual stopping place for passengers alighting near the northwest corner of the intersection of those streets; that as soon as the car stopped she arose from her seat, and proceeded to the front for the purpose of alighting; that another passenger preceded her, and while this passenger was alighting, appellee was standing with her hand on the door, ready to get off, when the car started again; that she thereupon told the motorman she wanted to get off at Holly street; that the car had proceeded east about sixty to sixty-five feet when the motorman asked her if she desired to get off at that point, to which she answered that she did. The car was thereupon stopped, she alighted from the north side, and immediately thereafter she was struck down by an automobile, driven by a Mr. Rand, going west. Appellee testified that she did not see the automobile until it struck her. She was rendered unconscious by the blow, and her testimony showed that her injuries were serious.

The motorman testified, his evidence being corroborated to some extent by the testimony of others, that the street car stopped near the northwest corner of the intersection of East Howard avenue and Holly street, where appellee desired to disembark; that one passenger got off at that point, and he (the motorman) looked back to see if there were any other passengers to leave the car, and seeing none, proceeded east something like sixty to sixty-five feet, when he discovered that appellee was at the front of the car, desiring to disembark; that the witness asked appellee if she was willing to get off at that place, to which she replied that she was thereupon he stopped the car, and appellee went down the steps on the north side, into the street; that as she was alighting, the witness saw an automobile approaching the car from the east, going west; that at the time appellee stepped into the street the automobile was about one hundred fifty feet away; that the witness told appellee to look out--there was an automobile coming. The automobile was passing the street car, as required by the traffic law, on the north side of East...