Smith v. St. Paul City Ry. Co.

• Court: Supreme Court of Minnesota (US)
• Citation: 32 Minn. 1
• Parties: HOWARD TAYLOR SMITH <I>vs.</I> ST. PAUL CITY RAILWAY COMPANY.
• Decision Date: 02 April 1884

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32 Minn. 1 HOWARD TAYLOR SMITH
vs.
ST. PAUL CITY RAILWAY COMPANY. Supreme Court of Minnesota. April 2, 1884.

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Appeal by defendant from an order of the district court for Ramsey county, refusing a new trial, after a trial before Wilkin, J., and a jury, and a verdict of $3,000 for plaintiff.

H. J. Horn, for appellant.

C. K. Davis, for respondent.

VANDERBURGH, J.

This action is brought to recover damages for personal injuries alleged to have been caused by a collision between two street cars of the defendant, on one of which plaintiff claims to have been a passenger. Defendant denies that he was a passenger, and insists that under the circumstances it is liable for the exercise of ordinary care only.

1. Upon this question plaintiff's evidence tends to show that he had reached the car, which had stopped for him at a crossing, and was endeavoring to enter it by a single low step, in the rear and centre of the car, between the rails; that while he was on the step and in the act of opening the door, which opened with difficulty, he heard the noise of another car approaching, which was unexpectedly brought into collision with the one he was entering, and he was thereby struck, knocked down, and severely hurt. The defendant's evidence also tends to show that the forward car had stopped and was waiting for plaintiff, and that he had passed to the rear thereof and stood between the rails, where he was seen by the driver of the rear car before the accident. The court charged the jury that "if the plaintiff was not actually on the platform, but had hailed the car, and the car had stopped for the purpose of enabling him to take passage, and he was in the act of carefully and prudently attempting to step upon the platform, he is to be regarded as a passenger." This instruction was correct as a legal proposition, and also clearly within the evidence, which, taken together, is amply sufficient to support the finding that the plaintiff had accepted the defendant's invitation to take passage,

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which had been signified by its stopping the car and waiting for him to enter it; that he was in the act of entering it, and had so far placed himself in the charge of the defendant as to be entitled to the protection of a passenger. The rule is not inflexible that to entitle a person to such protection he must be actually within the vehicle or upon some portion of it. Otherwise he might in good faith, and in the exercise of due care, place himself in a position of peril while in the act of taking passage, upon the consent and invitation of the carrier, and the latter be bound to the exercise of ordinary care only. Brien v. Bennett, 8 C. & P. 724; Allender v. Chicago, etc., R. Co., 37 Iowa, 264; Gordon v. Grand St. & N. R. Co., 40 Barb. 546; Com. v. Boston & M. R. Co., 129 Mass. 501; Thompson's Carriers, 42; Hutchinson's Carriers, § 556; Shearman & Redf. on Negligence, § 262.

2. The defendant was a carrier of passengers for hire, owning and controlling the tracks and cars operated thereon. It is therefore subject to the rules applicable to passenger carriers. Thompson's Carriers, 442; Barrett v. Third Ave. R. Co., 1 Sweeny, 568; 8 Abb. Pr. (N. S.) 205. As respects hazards and dangers incident to the business or employment, the law enjoins upon such carrier the highest degree of care consistent with its undertaking, and it is responsible for the slightest negligence. Wilson v. Northern Pacific R. Co., 26 Minn. 278; Warren v. Fitchburg R. Co., 8 Allen, 233; 43 Amer. Dec. 354, 356, notes and cases. This rule extends to the management of the cars and track, and to all the subsidiary arrangements necessary for the safety of passengers. Simmons v. New Bedford, etc., R. Co., 97 Mass. 361, 368; Meier v. Pennsylvania R. Co., 64 Pa. St. 225. It would, of course, also be applicable to the proper arrangements for running street cars upon the same track, in respect to risks and dangers of accidents from collision.

3. In support of the charge of negligence in the management of the rear car, (No. 26,) and the horses attached to it, plaintiff's evidence tended to prove that before he reached the forward car, (No. 8,) he saw car 26 approaching upon an up grade, about one-half block away, and moving at the usual rate of speed; that, while he was in the act of entering the car which stood waiting for him, hearing a noise on the track behind him, he looked around...