Jacobson v. Omaha & Council Bluffs Street Railway Company

• Decision Date: 08 December 1922
• Docket Number: 22147
• Citation: 191 N.W. 327,109 Neb. 356
• Parties: PETER JACOBSON, ADMINISTRATOR, APPELLANT, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE
• Court: Nebraska Supreme Court

191 N.W. 327

109 Neb. 356

PETER JACOBSON, ADMINISTRATOR, APPELLANT, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLEE

No. 22147

Supreme Court of Nebraska

December 8, 1922

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.

AFFIRMED.

John O Yeiser and E. A. Conaway, for appellant.

John L Webster, contra.

Heard before MORRISSEY, C. J., LETTON, ALDRICH, DAY and FLANSBURG, JJ., REDICK, District Judge.

OPINION

FLANSBURG, J.

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 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, 12 A. L. R. 1366, 176 N.W. 961; Hammett v. Birmingham R., L. & P. Co., 202 Ala. 520, 81 So. 22; Morris v. Omaha & C. B. Street R. Co., 193 Iowa 616, 187 N.W. 510; Creamer v. West End Street R. Co., 156 Mass. 320, 31 N.E. 391; Powers v. Connecticut Co., 82 Conn. 665, 74 A. 931; 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. Co. v. Boddy, 105 Tenn. 666; Smith v. City R. Co., 29 Ore. 539, 46 P. 136.

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, had ceased to be a passenger 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 R. 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 has 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 the 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 a 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, upon reaching his destination, that his feet touch the pavement in the act of alighting. It is a conceded rule that the company must exercise care in selecting the place for the passenger to alight, since that is a part of the obligation of transportation which the street railway company has assumed. If there are defects or obstructions in the street, it must avoid them, if it reasonably can, and select landing places where the condition of the street is free from those dangers. If there are dangers in the condition of the street at the place of alighting, known to the company and not known to the passenger, it is its duty to warn the passenger as against those dangers. Where a passenger has alighted upon the street, the company still owes him protection at that place, as against the act of its employees or the movement of its car. Johnson v. Washington Water Power Co., 62 Wash. 619, 114 P. 453; Virginia Trust Co. v. Raymond, 120 Va. 674, 91 S.E. 613; Houston v. Lynchburg Traction & Light Co., 119 Va. 136, 89 S.E. 114. If such a person is, in any sense, a passenger at the place where he alights upon the street; if the company at that time owes him any obligation of protection, either as against its own negligence or otherwise, by reason of his relation to it, then, of course, he is a passenger in all respects. So long as the relation continues, the company owes him every obligation that springs from that relation.

The plaintiff relies upon the case of Wood v. North Carolina Public-Service Corp., 174 N.C. 697, 1 A. L. R. 942, 94 S.E. 459. In that case it was held that a passenger, who was struck by a passing vehicle immediately after he had alighted upon the street, did,...