Rogers v. City of Detroit

• Decision Date: 05 June 1939
• Docket Number: No. 54.,54.
• Citation: 286 N.W. 167,289 Mich. 86
• Parties: ROGERS v. CITY OF DETROIT, DEPARTMENT OF STREET RAILWAYS (two cases).
• Court: Michigan Supreme Court

289 Mich. 86

286 N.W. 167

ROGERS

v.CITY OF DETROIT, DEPARTMENT OF STREET RAILWAYS (two cases).

No. 54.

Supreme Court of Michigan.

June 5, 1939.

Action by Margaret Rogers against the City of Detroit, Department of Street Railways, for damages from injury, consolidated with an action by Silas Rogers against the same defendant for loss of services and expenses. Judgments for plaintiffs and defendant appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Joseph A. Moynihan, judge.

Argued before the Entire Bench.

Leo A. Sullivan, of Detroit, for appellant.

H. R. Martin, of Detroit, for appellees.

BUSHNELL, Justice.

The action of Margaret Rogers, for damages suffered by reason of an injury sustained while alighting from a street car, was consolidated with the action of her husband, Silas Rogers, for his loss of her services and expenses incurred. On September 30, 1936, about 11:30 a. m., Mrs. Rogers was a passenger on one of defendant's southbound Trumbull Avenue street cars. When this car reached Michigan Avenue it came to a stop and the exit doors were opened by the conductor, Mrs. Rogers, who intended to transfer to a westbound Michigan Avenue car, claims that, just as she was about to step out of the door, the car jerked and she was thrown through the door to the pavement, and severely injured. Verdicts were rendered by the jury in the sum of $3,750 for Mrs. Rogers and $1,250 for her husband. From these judgments defendant appeals. Three questions are proposed by appellant:

1. Was there any evidence of defendant's negligence?

2. Was it prejudicial error to permit the jury to view motion pictures of the rapid pulsation of plaintiff's throat?

3. Was it error to admit testimony as to plaintiff's exclamations of pain?

There is a conflict in the testimony regarding the jerking of the car. The exit doors were controlled by the conductor, who stated that the street car would not start while they were open; that Mrs. Rogers was the last passenger to leave the car at this stop; that before she fell she was ‘standing in the center of the doors on the platform of the car and that she seemed to take a tumble from the floor level over the steps to the pavement;’ that, from the time the car came to a stop until she fell, ‘the street car did not start at any time.’ The motorman explained the mechanism of this Peter Witt type of car, which he said cannot be started while the side doors are open; that when the conductor opens the side doors he cuts off the power from the controller and the car then cannot move unless an emergency switch at the front end of the car is thrown backward. With the switch in this position, the car can be moved while the doors are open. A woman passenger on the car said it gave a violent jerk while Mrs. Rogers was standing near the opened exit doors ready to alight. This conflict in the testimony raised a question of fact for the jury.

Appellant argues that proof of a jerk is not necessarily proof of negligence and cites a number of cases, in none of which jerking occurred while the passenger was alighting. The distinction between the rule in such cases and those involving sudden increases and decreases in speed is discussed in Selman v. City of Detroit, 283 Mich. 413, 278 N.W. 112.

A sudden jerk of a street car, while passengers are alighting, may be negligence. 10 American Jur. 253; 13 C.J.S., Carriers, § 733, p. 1384; 56 A.L.R. 1008. Authorities supporting this rule are Bartle v. Houghton County St. Ry. Co., 132 Mich. 290, 93 N.W. 620;Burke v. Bay City Traction & Elec. Co., 147 Mich. 172, 110 N.W. 524;Cummings v. Detroit United Ry. Co., 163 Mich. 304, 128 N.W. 206;Krouse v. Detroit United Ry., 170 Mich. 438, 136 N.W. 434;Tuttle v. Detroit, Etc., Ry. Co., 193 Mich. 390, 159 N.W. 498.

The reason for the rule is well stated in Laub v. Philadelphia R. T. Co., 97 Pa. Super. 323, where the court said: ‘But there is a difference, well recognized in the cases, between the case in which the passenger is fully and fairly upon the car, which he has just boarded, and the case in which a car has stopped to discharge passengers and they are in the act of leaving it. Our common experience teaches us that in the former case the passenger must anticipate that the car may start before he is seated, and that the movement may be abrupt. In the latter case the passenger has the right to assume that it will remain stationary until those who are being discharged have an opportunity to alight, and its sudden movement is unexpected.’

The second question has to do with the admission of moving pictures that...