Loggins v. Southern Pub. Utilities Co, (No. 359.)

• Decision Date: 20 April 1921
• Docket Number: (No. 359.)
• Citation: 106 S.E. 822
• Court: North Carolina Supreme Court
• Parties: LOGGINS. v. SOUTHERN PUBLIC UTILITIES CO. et al.

106 S.E. 822

LOGGINS.

v.SOUTHERN PUBLIC UTILITIES CO. et al.

(No. 359.)

Supreme Court of North Carolina.

April 20, 1921.

Walker and Allen, JJ., dissenting.

Appeal from Superior Court, Forsyth County; Webb, Judge.

Action by L. A. Loggins, administrator, against the Southern Public Utilities Company and others. From judgment of nonsuit as to the named defendant, plaintiff appeals. Reversed.

Civil action to recover damages for an alleged negligent injury and killing of plaintiff's intestate, a boy between eight and nine years of age.

There was evidence for the plaintiff, tend ing to show that on July 10, 1919, L. A. Log-gins, a carpenter, and his infant son, took passage on a street car of the Southern Public Utilities Company, near Twenty-Third street in the city of Winston-Salem and paid their fares to East Winston where plaintiff lived. In order to make this continuous trip, over the defendant's lines, it was necessary to ride down Liberty street in said city, to a point near its intersection with Fourth street, and there to transfer to another car bound for East Winston.

Before reaching this regular transfer point, the conductor gave the plaintiff and his son transfer tickets which were to be used on the East Winston car as soon as it reached the junction. They left the initial car at the usual stopping place, which is in "the center of the business part of town, where passengers ordinarily transfer from one car to another, and there is a great deal of traffic and congestion about this corner."

The father had his arms and pockets full of carpenter's tools and was carrying some tools on his shoulder. Just as he reached the sidewalk, the boy being several feet from the curbing out in the street, he remarked: "Son, where is our basket?" The basket, containing their lunch, had been left on the car. Almost instantly, the boy turned and ran back into the street car to get the basket. He entered at the front door, and the motor-man closed the door behind him. After finding the basket, he came back to the front platform. The motorman then opened the door to let the boy out, and just as he stepped off the car to the street an automobile driven by Louisa Holland ran over him and killed him. The boy "turned as he stepped off in the street and his back was to the automobile. He turned and she hit him. People were getting off and on the street car at the back end at the time she passed. The automobile ran over him just as he got off the car and got one step."

At the close of plaintiff's evidence, defendant moved for judgment of nonsuit as to the Southern Public Utilities Company, which motion was allowed. Plaintiff appealed.

J. C. Wallace and Raymond G. Parker, both of Winston-Salem, for appellant.

Manly, Hendren & Womble and Swink, Korner & Hutchins, all of Winston-Salem, for appellee Southern Public Utilities Co.

STACY, J. [1, 2] Considering the evidence most strongly in favor of the plaintiff, which we are required to do on a motion to nonsuit, we think it sufficient to carry the case to the jury.

The following may be stated as reasonable inferences from the testimony appearing in the record:

(1) Plaintiff's intestate, a boy under nineyears of age, was a passenger on one of the street cars of the Southern Public Utilities Company.

(2) In company with his father, he left this car at the usual place, for the purpose of transferring to another car which would carry them to East Winston.

(3) He had in his possession a ticket which entitled him to transfer from one car to another at this point.

(4) After leaving the car, but before reaching the sidewalk, and while passengers were still getting on and off, he returned through the front entrance to get his lunch basket, which inadvertently had been left on the car.

(5) The defendant's motorman was aware of the boy's movements and opened the door for him to disembark the second time.

(6) This happened near a corner in the center of the business part of town, where there is a great deal of traffic and congestion.

(7) Just as he stepped from the car to the street, and probably had taken one step, he was struck by an automobile and killed.

His honor granted the defendant company's motion for judgment as of nonsuit upon the theory that plaintiff's intestate was not a passenger at the time of his injury and that the defendant company owed him no affirmative duty of care.

By the clear weight of authority, the relation of passenger and carrier ordinarily ends when the passenger safely steps from a street car to the street. He then becomes a pedestrian on the public highway, and the carrier is not responsible for his safe passage from the street to the sidewalk; for once safely landed in the street, his rights as a passenger cease. Wood v. Public Service Corporation, 174 N. C. 697, 94 S. E. 459, 1 A. L. R. 942; Whilt v. Public Service Corporation, 76 N. J. Law, 729, 72 Atl. 420, 74 Atl. 568; Clark v. Traction Co., 138 N. C. 77, 50 S. E. 518, 107 Am. St. Rep. 526; Palmer v. Electric Co, 131 N. C. 250, 42 S. E. 604; Smith v. City Ry. Co., 29 Or. 539, 46 Pac. 136, 46 Pac. 780; Creamer v. West End St. Ry., 156 Mass. 320, 31 N. E. 391, 16 L. R. A. 490, 32 Am. St Rep. 456; Keator v. Traction Co., 191 Pa. 102, 43 Atl. 86, 44 L. R. A. 546, 71 Am. St. Rep. 758; Street R. R. v. Boddy, 105 Tenn. 669, 58 S. W. 646; Oddy v. W. Street Ry. Co., 178 Mass. 341, 59 N. E. 1026, 86 Am. St. Rep. 482; Duchemin v. Boston, etc., Co., 186 Mass. 353, 71 N. E. 780, 66 L. R. A. 980, 104 Am. St. Bep. 580 and note, 1 Ann. Cas. 603.

However, the courts are not universally in accord on this subject. In Johnson v. Washington Water Power Co., 62 Wash. 619, 114 Pac. 453, it is stated:

"A passenger on alighting from a street car is more or less subject to the conditions in which the carrier has placed him, and common prudence dictates that he should have a reasonable time to note the surroundings and pre pare to protect himself from the ordinary dangers of the street."

And in Louisville Ry. Co. v. Kennedy, 162 Ky. 560, 172 S. W. 970, Ann. Cas. 1916E, 996, it is said:

"When a street car stops to permit a passenger to alight, he is still a passenger until he has had a reasonable opportunity to reach a place of safety."

Again:

"It is the duty of a street car company to select a reasonably safe place for landing passengers wherever it may stop a car for that purpose." Macon Railway Co. v. Vining, 120 Ga. 511, 48 S. E. 232; and to like effect Birmingham Railway Light & Power Co. v. O'Brien, 185 Ala. 617, 64 South. 343; Welsh v. Spokane, etc., R. R. Co., 91 Wash. 260, 157 Pac. 679, L. R. A. 1916F, 484: Montgomery Street Ry. Co. v. Mason, 133 Ala. 529, 32 South. 261; and Melton v. Birmingham Ry. L. & P. Co., 153 Ala. 95, 45 South. 151, 16 L. R. A. (N. S.) 467.

See, also, 10 C. X, 627.

Ordinarily, a person would not step from a car to the street in the presence of imminent danger, or unless it were safe to do so; and safely landed in the street does not mean simply reaching the street with both feet and no more. The test could not be as to whether the passenger had actually left the car and reached the street without injury, but was it safe for him to do so, under the attending circumstances? Obviously, there is a difference between a safe landing and a landing in safety. The one has reference to the act of the passenger in stepping from the car to the street, the other to the condition in which he finds himself immediately after accomplishing this act.

We think a fair statement of the rule would be to say that a passenger, on alighting from a street car at the end of his journey, loses his status as a passenger when he has stepped from the ear to a place of safety on the street, or on the highway. The question should not be made to depend entirely upon the number of steps which the passenger may take on leaving the car, but rather upon the circumstances and conditions...