Messenger v. Valley City Street And Interurban Railway Co.
| Decision Date | 19 November 1910 |
| Citation | 128 N.W. 1023,21 N.D. 82 |
| Court | North Dakota Supreme Court |
Appeal from District Court of Barnes county; Burke, J.
Action for damages. Judgment for plaintiff. Defendant appeals.
Affirmed.
Herman Winterer and D. S. Ritchie, for appellant.
To become a passenger, one must place himself, by contract express or implied, in carrier's conveyance, and be accepted as such. Bricker v. Philadelphia & R. R Co. 132 Pa. 1, 19 Am. St. Rep. 585, 18 A. 983; Chicago Union Traction Co. v. O'Brien, 219 Ill 303, 76 N.E. 341; Farley v. Cincinnati, H. & D. R Co. 47 C. C. A. 156, 108 F. 14; Illinois C. R. Co v. O'Keefe, 168 Ill. 115, 39 L.R.A. 148, 61 Am. St. Rep. 68, 48 N.E. 294; Foster v. Seattle Electric Co. 35 Wash. 177, 76 P. 995; Woolsey v. Chicago, B. & Q. R. Co. 39 Neb. 798, 25 L.R.A. 79, 58 N.W. 444; Hicks v. Union P. R. Co. 76 Neb. 496, 107 N.W. 798; Fremont, E. & M. Valley R. Co. v. Hagblad, 72 Neb. 773, 4 L.R.A.(N.S.) 254, 101 N.W. 1033, 106 N.W. 1041, 9 A. & E. Ann. Cas. 1096; Strong v. North Chicago Street R. Co. 116 Ill.App. 246; McFeat v. Philadelphia, W. & B. R. Co. 6 Penn. (Del.) 513, 69 A. 744; Hogner v. Boston Elev. R. Co. 198 Mass. 260, 15 L.R.A.(N.S.) 960, 84 N.E. 464.
Presence on platform, having paid no fare, and attempting to board a train do not make a passenger. June v. Boston & A. R. Co. 153 Mass. 79, 26 N.E. 238; Reiten v. Lake Street Elev. R. Co. 85 Ill.App. 657; Missouri, K. & T. R. Co. v. Williams, 91 Tex. 255, 40 S.W. 350, 42 S.W. 855; Merrill v. Eastern R. Co. 139 Mass. 238, 52 Am. Rep. 705, 1 N.E. 548; Bricker v. Philadelphia & R. R. Co. 132 Pa. 1, 19 Am. St. Rep. 585, 18 A. 983.
Knowing the use of the plank between platform and car, and stepping into the darkness, without ordinary precaution, plaintiff was guilty of contributory negligence. Hanrahan v. Manhattan R. Co. 53 Hun, 420, 6 N.Y.S. 395; Graham v. Pennsylvania R. Co. 139 Pa. 149, 12 L.R.A. 293, 21 A. 151; Becker v. Lincoln Real Estate & Bldg. Co. 174 Mo. 246, 73 S.W. 581; Bradley v. Grand Trunk R. Co. 107 Mich. 243, 65 N.W. 102; Gulf, C. & S. F. R. Co. v. Hodges, Tex. Civ. App. , 24 S.W. 563; Wallace v. Wilmington & N. R. Co. 8 Houst. (Del.) 529, 18 A. 818; Galena & C. Union R. Co. v. Fay, 16 Ill. 558, 63 Am. Dec. 323; Chicago, B. & Q. R. Co. v. Hazzard, 26 Ill. 386; Pennsylvania R. Co. v. Aspell, 23 Pa. 147, 62 Am. Dec. 323; South & North Ala. R. Co. v. Schaufler, 75 Ala. 136; Clark v. Metropolitan Street R. Co. 68 A.D. 49, 74 N.Y.S. 267; Missouri, K. & T. R. Co. v. Turley, 29 C. C. A. 196, 56 U. S. App. 1, 85 F. 369; Little v. Hackett, 116 U.S. 371, 29 L.Ed. 654, 6 S.Ct. 391; Johnston v. New Omaha Thomson-Houston Electric Light Co. 78 Neb. 27, 17 L.R.A.(N.S.) 435, 110 N.W. 711, 113 N.W. 526; Evansville Hoop & Stave Co. v. Bailey, 43 Ind.App. 153, 84 N.E. 549; Haase v. Morton, 138 Iowa 205, 115 N.W. 921, 16 A. & E. Ann. Cas. 350; Anderson v. Wilmington, 6 Penn. (Del.) 485, 70 A. 204; Miller v. Chicago, St. P. M. & O. R. Co. 135 Wis. 247, 17 L.R.A.(N.S.) 158, 128 Am. St. Rep. 1021, 115 N.W. 794.
Page & Englert, for respondent.
The fact that plaintiff had no ticket is immaterial. Albin v. Chicago, R. I. & P. R. Co. 103 Mo.App. 308, 77 S.W. 153; McCarty v. St. Louis & Suburban R. Co. 105 Mo.App. 596, 80 S.W. 7; Smith v. St. Paul City R. Co. 32 Minn. 1, 50 Am. Rep. 550, 18 N.W. 827; Ahern v. Minneapolis Street R. Co. 102 Minn. 435, 113 N.W. 1019; Grimes v. Pennsylvania Co. 36 F. 72; Baltimore & O. R. Co. v. State, 81 Md. 371, 32 A. 201; McFeat v. Philadelphia, W. & B. R. Co. 6 Penn. (Del.) 513, 69 A. 744; Webster v. Fitchburg R. Co. 161 Mass. 298, 24 L. R.A. 521, 37 N.E. 165; McDonough v. Metropolitan R. Co. 137 Mass. 210; North Chicago Street R. Co. v. Williams, 140 Ill. 275, 29 N.E. 672; Allender v. Chicago, R. I. & P. R. Co. 37 Iowa 264; Phillips v. Southern R. Co. 124 N.C. 123, 45 L.R.A. 163, 32 S.E. 388; Texas & P. R. Co. v. Jones, Tex. Civ. App. , 39 S.W. 124; Galveston, H. & S. A. R. Co. v. Fink, 44 Tex. Civ. App. 544, 99 S.W. 204; Gordon v. West End Street R. Co. 175 Mass. 181, 55 N.E. 990; Hall v. Terre Haute Electric Co. 38 Ind.App. 43, 76 N.E. 334.
One is a passenger, when in the act of getting on the car stopping for him. Gaffney v. St. Paul City R. Co. 81 Minn. 459, 84 N.W. 304; Citizens' Street R. Co. v. Merl, 26 Ind.App. 284, 59 N.E. 491; Gordon v. West End Street R. Co. 175 Mass. 181, 55 N.E. 990; Butler v. Glens Falls, S. H. & Ft. E. Street R. Co. 121 N.Y. 112, 24 N.E. 187.
Carrier of passengers must keep the approaches to its cars properly lighted for the safety of its passengers. Grimes v. Pennsylvania Co. 36 F. 72; Hiatt v. Des Moines, N. & W. R. Co. 96 Iowa 169, 64 N.W. 766; Fordyce v. Merrill, 49 Ark. 277, 5 S.W. 329; Cross v. Lake Shore & M. S. R. Co. 69 Mich. 363, 13 Am. St. Rep. 399, 37 N.W. 361; 6 Cyc. Law & Proc. pp. 605-609; Chicago, R. I. & P. R. Co. v. Stepp, 22 L.R.A.(N.S.) 350, 90 C. C. A. 431, 164 F. 785.
Whether plaintiff was exercising care, or defendant was negligent, were matters for the jury. Pendroy v. Great Northern R. Co. 17 N.D. 433, 117 N.W. 531; Hall v. Northern P. R. Co. 16 N.D. 60, 111 N.W. 609, 14 A. & E. Ann. Cas. 960; Umsted v. Colgate Farmers' Elevator Co. 18 N.D. 309, 122 N.W. 390; Chicago & J. Electric R. Co. v. Wanic, 230 Ill. 530, 15 L.R.A.(N.S.) 1167, 82 N.E. 821; Butler v. Glens Falls, S. H. & Ft. E. Street R. Co. 121 N.Y. 112, 24 N.E. 187.
On the 3d day of December, 1906, the plaintiff was injured while attempting to board a street car belonging to the defendant company. The complaint alleges that the injury was caused by the failure of the defendant to cause the approach to said street car to be properly lighted, and its failure to have guards or rails placed at such approach. The defendant runs a street car line in Valley City, and runs its cars so as to make connections with all passenger trains of the "Soo" Railway Company at the depot of said railway company. At the depot or station the railway track is used by the street railway company. Except as to this distance at the station, the street railway company maintains its own tracks. The street railway company carries passengers to and from said depot, and the car remains at the depot until the arrival of the incoming passenger trains, and until the incoming passengers enter the street car. The approach from the depot platform to the car is made on a plank 4 feet long and about 2 feet wide, resting on the depot platform and the steps of the car, about 18 inches from the ground. The space between the depot platform and the car steps is about 30 inches.
At about 8:00 o'clock on the evening of said 3d day of December, plaintiff was a passenger from the South, on said railway, and left the train at Valley City, and immediately proceeded towards the street car. She had been a passenger on the street car at prior times, and knew where it stood. She had stepped on the plank with one foot, and was about to take another step thereon when she fell to the ground and was injured. Whether she slipped, or failed to step on the plank, does not clearly appear.
At this time other passengers were entering the car, and some were in the car waiting for it to start. It started in a few minutes thereafter. She was not directed to the car at that time by any one of the servants or employees of the street car company, and was actually escorted to the car by her son, who carried her baggage. No servants or employees of the company were at the car when she attempted to enter it. The lights had not been turned on in the car, but it was lighted to some extent by a lantern placed on the inside of the car.
She brought this action, and bases her right to recover upon the alleged negligence of the company in failing to provide lights at the place where the street car is entered, and for its failure to provide a proper railing or guard where the plank is placed. The defendant, in its answer, alleges that the relation of carrier and passenger did not exist between the plaintiff and the defendant at the time of the injury, and that if she was a passenger at that time her injury was caused through her own contributory negligence. The jury found a verdict in her favor for the sum of $ 200. The defendant has appealed from a judgment entered upon that verdict, and relies upon these two assignments for a reversal of the same.
The appellant's contention is that the relation of carrier and passenger is not created as a matter of law until the passenger enters some conveyance by virtue of a contract express or implied, and has been expressly or impliedly received as a passenger by the servants of the carrier. The plaintiff had not purchased a ticket for the trip, and there was no place at the station for the purchase of tickets, and the custom prevails to pay the fare to the conductor while on the car. There is no custom shown that the servants of the street railway company were to give any actual permission or consent before the passengers could rightfully enter the car. The doors of the car were not locked, and the car was lighted as before stated. From these facts it is to be determined whether the plaintiff was a passenger as a matter of law when the injury occurred.
It is beyond question that she stepped upon the plank intending to become a passenger, and that the car started on its trip in a very short time thereafter. When injured she was using one of the appliances provided by the company for entering the car. The contention that the plaintiff was not a passenger for the reason that she had not paid fare or bought a ticket when injured cannot be upheld. The car was at the station to receive passengers, and that fact may be deemed...
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