Piper v. Minneapolis Street Railway Co.

• Decision Date: 16 January 1893
• Citation: Piper v. Minneapolis Street Railway Co., 53 N.W. 1060, 52 Minn. 269 (Minn. 1893)
• Parties: Ellen D. Piper v. Minneapolis Street Railway Co
• Court: Minnesota Supreme Court

53 N.W. 1060

52 Minn. 269

Ellen D. Piper v. Minneapolis Street Railway Co

Supreme Court of Minnesota

January 16, 1893

December 15, 1892, Submitted on briefs

Appeal by defendant, the Minneapolis Street Railway Company, from an order of the District Court of Hennepin County, Canty, J made July 16, 1892, granting its motion for a new trial unless plaintiff, Ellen D. Piper, consent to reduce her verdict of $ 4,000 to $ 3,200, and refusing it if she did.

On September 9, 1891, plaintiff, Ellen D. Piper, attempted to alight from an electric street car at the crossing of Central Avenue and Fifth Street Southeast in Minneapolis. While she was doing so, the car was started without notice or warning and she was thrown down and injured so seriously that she was compelled to give up the business of keeping boarders in which she was engaged. She brought this action to recover damages. The issues were tried May 16, 1892. The defendant's eighth request to charge was as follows:

"If the jury believe from the evidence in this case that at the time the plaintiff attempted to step down and alight from the car, the same was already in motion, and that by reason of attempting to alight from such car while in motion she was thrown down and injured, then she cannot recover in this action, and your verdict must be for the defendant."

The judge refused to so charge the jury and defendant excepted. The judge charged the jury as follows;

"A common carrier of passengers is required to use the highest degree of care which human foresight can attain, and is liable for the slightest negligence resulting in injury to a passenger, if the passenger himself has used reasonable care. The passenger must use reasonable care; that is, the care that a person of ordinary prudence would use under the circumstances, the care that an ordinary man would use. But the carrier of passengers must use this high degree of care and is liable for the slightest negligence resulting in injury.

"There is a conflict in the evidence. Some of the witnesses testify that as the car started on, the plaintiff jumped off and staggered and took a few steps and fell. Now, even if she jumped off, if the company were negligent in starting the car, and a person of ordinary care might have done the same thing under the circumstances; if a person of ordinary prudence might have jumped off in the excitement of the moment, then it would not be contributory negligence for her to have done so, even though it might not have been the best thing to have done."

To each paragraph of this charge the defendant duly excepted. The plaintiff had a verdict for $ 4,000. The defendant moved the court to grant a new trial for errors of law occurring at the trial and excepted to by it, and on the ground that the damages given were excessive. The court ordered a new trial unless plaintiff should, within ten days, file her consent that the verdict be reduced to $ 3,200; and denying the motion if she did. She filed her consent. Defendant appeals from the order.

Order affirmed.

Koon Whelan & Bennett, for appellant.

There is no evidence showing, or tending to show, that plaintiff, when she left the car, was frightened, or under the influence of any real or supposed peril. She nowhere in her testimony states that she was in any way frightened. Therefore this part of the charge was unwarranted, and not based upon any evidence in the case, and was erroneous. The instructions of the court must be based upon the evidence in the case. Hewitt v. Begole, 22 Mich. 31; Ward v. Henry, 19 Wis. 76; Coal Run Coal Co. v. Jones, 127 Ill. 379; Swank v. Nichols, 24 Ind. 199; Atkins v. Nicholson, 31 Mo. 488; Bogle v. Kreitzer, 46 Pa. 465; Cushman v. Cogswell, 86 Ill. 62.

The instructions of the court should be confined to the issues made by the pleadings, as well as the evidence introduced in the case. Nollen v. Wisner, 11 Iowa 190; Hall v. Strode, 19 Neb. 658; Chicago & Alton R. Co. v. Mock, 72 Ill. 141; Columbus, C. & I. C. Ry. Co. v. Troesch, 68 Ill. 545; Toledo, St. L. & K. C. R. Co. v. Cline, 135 Ill. 41.

There is nothing in either the pleadings or the evidence indicating that the accident in question took place by reason of any fright occasioned by any real or apparent peril in which the plaintiff was placed at the time she was injured, hence this portion of the judge's charge was entirely erroneous and liable to mislead the jury. Ruff v. Jarrett, 94 Ill. 475; Toledo, W. & W. Ry. Co. v. Shuckman, 50 Ind. 42; Stratton v. Central City Horse Ry. Co., 95 Ill. 25; Wabash Ry. Co. v. Henks, 91 Ill. 406; Holloway v. Johnson, 129 Ill. 367.

The District Court erred in refusing to give the eighth instruction asked by defendant. If plaintiff remained upon the car until it was in motion and then attempted to alight, and while doing so was injured because the car was in motion, it is plain that the accident was caused by her own act, and not by any act of the defendant. Such action on her part was contributory negligence, which would prevent her recovery. Therefore this instruction should have been given to the jury.

The court erred in stating the degree of care which the law requires of a common carrier of passengers. It entirely leaves out the necessary qualification, that such degree of care is the highest degree of care consistent with the practical operation of a street railway, or as it is sometimes stated, the highest degree of care consistent with the undertaking of the railway company. Pittsburg, C. & St. L. R. Co. v. Thompson, 56 Ill. 138; Conway v. Illinois Central Ry. Co., 50 Iowa 465; Grand Rapids & Ind. R. Co. v. Huntley, 38 Mich. 537; Dougherty v. Missouri R. Co., 97 Mo. 647; Michigan Central Ry. Co. v. Coleman, 28 Mich. 440; Gilson v. Jackson Co. Horse Ry. Co., 76 Mo. 288; Smith v. St. Paul City Ry. Co., 32 Minn. 1; Oviatt v. Dakota Central Ry. Co., 43 Minn. 300; Meier v. Pennsylvania R. Co., 64 Pa. 225; Louisville City Ry. v. Weams, 80 Ky. 420.

Henry Ebert and C. A. Ebert, for respondent.

Proof by plaintiff in an action for personal injuries received in alighting from a street car, that on the stopping of the car and while she was alighting, the driver suddenly started the car with a jerk, which cause her to fall, whereby she was injured, establishes a prima facie case of negligence in the management of the car, casting the burden of disproof on the defendant. Birmingham Union Ry. Co. v. Hale, 90 Ala. 8: Birmingham Union Ry. Co. v. Smith, 90 Ala. 60; Texas & P. Ry. Co. v. Miller, 79 Texas, 78; McDonald v. Long Island R. Co., 116 N.Y. 546; Franklin v. Southern Cal. M. R. Co., 85 Cal. 63; Jeffersonville Ry. Co. v. Hendricks, 26 Ind. 228; Jefferson Ry. Co. v. Parmele, 51 Ind. 42; Keller v. Sioux City & St. P. R. Co., 27 Minn. 178; Swigert v. Hannibal & St. J. R. Co., 75 Mo. 475; Ridenhour v. Kansas City C. Ry. Co., 102 Mo. 270; Poulin v. Broadway & Seventh Ave. R. Co., 61 N.Y. 621.

The question whether, by the starting up of the car, plaintiff was so suddenly put in peril as to leave no time for consideration of what might be the best way to escape, and the question whether, under the circumstances, and the natural excitement of the moment, it was natural for her to jump off, were properly submitted to the jury.

The judge properly refused to give defendant's eighth instruction. This instruction excludes from the consideration of the jury all the facts and circumstances of the case under which the plaintiff acted, except the single fact that she jumped, and if the jury should find that, then the court was asked to say, as a matter of law without regard to the other facts, that it was negligence so as to preclude her from recovering in this action. Schaeherl v. St. Paul City Ry. Co. 42 Minn. 42; Nelson v. Atlantic & P. Ry. Co., 68 Mo. 595; Pennsylvania R. Co. v. Lyons, 129 Pa. 113; Evansville & C. R. Co. v. Duncan, 28 Ind. 441; Philadelphia Ry. Co. v. Kilgore, 32 Pa. 292; Cumberland Val. R. Co. v. Maugans, 61 Md. 61; McMahon v. Northern Central Ry. Co., 39 Md. 439; Price v. St. Louis, K. C. & N. Ry. Co., 72 Mo. 414.

The charge given as to the degree of care required by a common carrier of passengers for hire and claimed by defendant to be a much higher degree than that required by law, and therefore erroneous, is the recognized and established law of this state. McLean v. Burbank, 11 Minn. 277, (Gil. 189;) Citizens' Street Ry. Co. v. Twiname, 111 Ind. 587; St. Louis, A. & T. Ry. Co. v. Finley, 79 Texas, 88; McElroy v. Nashua & L. R. Co., 4 Cush. 400; Fuller v. Naugatuck R. Co., 21 Conn. 557; Edwards v. Lord, 49 Me. 279; Hadley v. Cross, 34 Vt. 586; Topeka City Ry. Co. v. Higgs, 38 Kan. 375; Taylor v. Grand Trunk Ry. Co., 48 N.H. 314; New Jersey R. Co. v. Kennard, 21 Pa. 203; Maerick v. Eighth Ave. R. Co., 36 N.Y. 378; Stokes v. Saltonstall, 13 Pet. 181; Philadelphia & R. R. Co. v. Derby, 14 How. 468; Steamboat New World v. King, 16 How. 469.

OPINION

Dickinson, J.

The plaintiff, while a passenger on a street car of the defendant company, operated by electricity, was either thrown or fell to the ground while she was attempting to get off the car. For injuries caused thereby she prosecutes this action, alleging as...