Jacobson v. Omaha & Council Bluffs St. Ry. Co.
| Decision Date | 08 December 1922 |
| Docket Number | No. 22147.,22147. |
| Citation | 109 Neb. 356,191 N.W. 327 |
| Parties | JACOBSON ET AL. v. OMAHA & COUNCIL BLUFFS ST. RY. CO. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The rule requiring a street railway company to furnish the passenger a safe place to alight upon the street does not require it to protect all passengers at such place against independent agencies operating in the street.
A street railway company, carrying passengers on city streets, is not, as a general rule, bound to provide means for warning passengers, about to alight from its cars upon the street, of the danger from passing vehicles, that being an obvious danger, incidental to the street, and a condition over which the carrier has no control.
The rule is not held to be an inflexible one, not subject to exceptions in the case of children or in the case of persons not apparently possessed of normal faculties for protecting themselves, or where a person of normal faculties actually is known by the employee to be about to incur a danger in alighting of which the employee knows the passenger is unaware.
The company must give the passenger a reasonable opportunity to select his time to alight and to direct his own progress, having regard for his own protection and safety, and must not influence or compel him to alight so as to cause him to be placed in way of danger from passing vehicles.
A street car passenger who alights at his destination upon the street becomes a pedestrian upon the street, and the street railway company is not bound to guard or protect him in his progress on the street from the place where he alights.
But the rule is not so strict as to hold that a passenger, so alighting, ceases to be a passenger the instant that he alights upon the ground.
Appeal from District Court, Douglas County; Leslie, Judge.
Action by Mary Christine Jacobson, administrator de bonis non of the estate of Anna Pauline Jensen, deceased, substituted plaintiff, against the Omaha & Council Bluffs Street Railway Company. From a judgment for defendant, the named plaintiff appeals. Affirmed.
John O. Yeiser and E. A. Conaway, both of Omaha, for appellant.
John L. Webster, of Omaha, for appellee.
Heard before MORRISSEY, C. J., and LETTON, ALDRICH, DAY, and FLANSBURG, JJ., and REDICK, District Judge.
This was an action brought by plaintiff as administrator of the estate of Anna Pauline Jensen, deceased, to recover damages from the defendant Omaha & Council Bluffs Street Railway Company, on the charge that the defendant company had, through its negligence caused the death of plaintiff's intestate while, it is claimed, she sustained the relation to it of a passenger. The deceased sustained the injuries, of which she died, from a motorcycle, which passed the defendant's street car and struck her immediately after she had alighted in the street, at the termination of her journey. The defendant contends, first, that it was guilty of no negligence; and, second, that at the time the accident happened the relation of carrier and passenger had ceased to exist, and that the company owed the deceased no duty of protection from passing vehicles. The trial court directed a verdict in favor of the defendant, and from a judgment on that verdict the plaintiff appeals.
There is testimony in behalf of the plaintiff to show the following facts: Anna Pauline Jensen, a young woman, was a passenger on a street car operated by the defendant company. The car was proceeding south on Thirteenth street in the city of Omaha. A signal was given for the car to stop at a street intersection, a regular stopping place. Miss Jensen went forward to the front end of the car, stepped down into the front vestibule, and, as soon as the car stopped and the door opened, she stepped on down into the street. She was immediately followed by another passenger who stepped down close behind or beside her and was in the street at the time of the accident. As Miss Jensen descended from the car, she took one long step out onto the pavement, and was just in the act of swinging her other foot forward, to take another step, when she was struck by a motorcycle which was just then passing close to the car at a great speed. The motorman of the street car did not see the motorcycle until after the accident had happened. Though by looking in a small mirror, so arranged that he had a view of the outside of the car and of the rear entrance, it may have been that, had he looked for it, he could have seen the motorcycle as it approached. The conductor, however, stationed at the rear end of the car, had noticed the man on the motorcycle when he was some two blocks distant behind the car, and had remarked to the passengers near him that the man was approaching at a high speed. Different witnesses fixed the speed of the motorcyclist at from 40 to 60 miles an hour, and the motorcyclist himself testified that he passed the car at the rate of 42 miles an hour and probably not more than two feet distant from it. He was engaged at that time in the police service of the city of Omaha and was attempting to overtake a speeding automobile.
Plaintiff contends that the street railway company was negligent in having failed to discover and to warn Miss Jensen of the approaching vehicle. The defendant, on the other hand, contends that it was not the duty of the street railway company to watch for such vehicles; that those were obvious dangers, at all times more or less present upon the street, and dangers which the passenger must, himself, take notice of. The defendant further urges that at the first moment Miss Jensen stood upon the pavement, after descending from the car, she ceased to be a passenger, and that from that instant, whatever may have happened to her, the company can be held to no responsibility, growing out of any duty it owed her as a carrier.
A long list of cases is cited by the defendant to show that a person alighting from a street car ceases to be a passenger after he alights and moves away from the place of his landing. Chesley v. Waterloo, C. F. & N. R. Co., 188 Iowa, 1004, 176 N. W. 961, 12 A. L. R. 1366;Hammett v. Birmingham R., L. & P. Co., 202 Ala. 520, 81 South. 22;Morris v. Omaha & C. B. Street R. Co., 193 Iowa, 616, 187 N. W. 510;Creamer v. West End Street Ry. Co., 156 Mass. 320, 31 N. E. 391, 16 L. R. A. 490, 32 Am. St. Rep. 456;Powers v. Connecticut Co., 82 Conn. 665, 74 Atl. 931, 26 L. R. A. (N. S.) 405;Conroy v. Boston Elevated R. Co., 188 Mass. 411, 74 N. E. 672;Haskins v. St. Louis & S. R. Co., 193 Ill. App. 437; Street R. R. v. Boddy, 105 Tenn. 666, 58 S. W. 646;Smith v. City Ry. Co., 29 Or. 539, 46 Pac. 136, 780.
[6] Though in some of those cases it is stated as a rule that a person ceases to be a passenger the moment he alights upon the street, yet in no case cited was the person injured at that moment nor immediately afterward, at the place where he had alighted. In each of the cases he had taken his way from that spot and was injured upon the street after he had left the car and when, without question, he had become a pedestrian, entirely beyond the control of the carrier. In those cases, therefore, it did not become necessary to determine the exact instant when a person alighting from a street car would cease to be a passenger. Whether or not a person in the act of alighting, or who had alighted and had been injured immediately and before he had had an opportunity to move away from the spot, was not in question nor passed upon.
In some of those cases (Chesley v. Waterloo, C. F. & N. R. Co.; Hammett v. Birmingham R., L. & P. Co.; Creamer v. West End Street Ry. Co.; Street R. Co. v. Boddy, and Smith v. City R. Co.) it is stated generally that a street railway company is not obliged to warn passengers, about to alight from the car, as to the danger they may encounter from passing vehicles. Obviously, however, in these particular decisions the danger from passing vehicles, against which it is said the company is not required to warn its passengers, was a danger which the passenger was to encounter after he had descended from the car and moved away, and at a time when the relation of carrier and passenger would unquestionably have been terminated. These decisions do hold that the company need not warn its passengers as to those dangers which the passenger may encounter after the relation of carrier and passenger has terminated, yet they do not directly pass upon the question of whether or not the company must keep a lookout and warn passengers of the danger from vehicles that he may encounter while in the act of alighting, or at the very spot where he shall alight upon the street, and before the relation of carrier and passenger had ceased. During that period, when a passenger is alighting from the car and until after he has ceased to be a passenger, the company owes him certain duties and obligations, to the end that it may furnish him a safe delivery at his destination. Whether or not, in the performance of those duties, it must warn and guard him against the danger from passing vehicles is the precise question here to be determined, and which is not, as we view it, entirely solved by any of the decisions above mentioned, though some of the general statements made would seem broad enough to cover it. In the case of Hammett v. Birmingham R., L. & P. Co., supra, as an instance, the court announced as a general rule that--
“It is the duty of a street railroad carrier to provide a reasonably safe place for the landing of its passengers,” and “the rule as to providing safe place for alighting has no reference to independent agencies operating in the street such as a motorcycle.”
We are unable to agree with the contention that the company owed Miss Jensen no duty for the reason that, at the time of the accident, she was no longer a passenger. We do not believe the rule is quite so strict as to hold that a person who has taken passage on a street car ceases to be a passenger at the moment,...
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