Wilson v. Berlin St. Ry

• Citation: 149 A. 602
• Parties: WILSON v. BERLIN ST. RY.
• Decision Date: 04 March 1930
• Court: New Hampshire Supreme Court

149 A. 602

WILSON

v. BERLIN ST. RY.

Supreme Court of New Hampshire. Coos.

March 4, 1930.

Transferred from Superior Court, Coos County; Oakes, Judge.

Case for personal injuries brought by Mary Wilson against the Berlin Street Railway. Defendant's motion for a nonsuit was granted subject to exception, and the cause was transferred to the Supreme Court.

Exception sustained.

Case to recover for personal injuries sustained by the plaintiff on February 26, 1928, while alighting from one of the defendant's street cars at the corner of Main and Mason streets in Berlin. At the close of the plaintiff's evidence, the defendant's motion for a nonsuit was granted subject to exception.

The plaintiff, accompanied by her husband, boarded the street car at Gorham. It was a closed car operated by one man, who acted both as motorman and conductor. The streets were icy on the day of the accident, and at the point where the plaintiff left the car there was a deep rut. She testified: "When I stepped onto the ground I fell. I stepped on a rut of ice, turned my ankle and fell. * * * I broke my ankle, and broke my leg in two places. * * * I looked when I fell to see what I stepped on, and it seemed to be quite a high place raised up on the ice." The plaintiff's husband, who followed her from the car, testified that "she stepped on some ruts of ice" which "were pretty close to the car tracks, and went right under the car steps," and that "they were anywhere from eight inches to nine; perhaps a foot deep." Other facts appear in the opinion.

Ovide J. Coulombe and Ira W. Thayer, both of Berlin, for plaintiff.

Jesse F. Libby and Harry G. Noyes, both of Gorham, for defendant.

MARBLE, J.

It is the general rule that a street railway must select a reasonably safe place for landing its passengers. Harrington v. Railway, 76 N. H. 575, 82 A. 720; Bass v. Railway, 70 N. H. 170, 46 A. 1056; Call v. Railway, 69 N. H. 562, 564, 45 A. 405. The defendant does not question this rule so far as it relates to interurban transit, but contends that it does not apply to railways traversing city streets over which they have no control.

It is further suggested that the place where the plaintiff alighted was as safe as the circumstanees would permit; that the ice and ruts extended the entire length of the street, and that the same danger would have existed at whatever point in the locality the motor-man had stopped the car.

Assuming all this to be true, it does not follow that reasonable men might not deem the defendant negligent. The ruts were of such a nature that they must have been formed long enough for the defendant, in the exercise of ordinary care, to have discovered them. The rule of Hickey v. Berlin, 78 N. H. 69, 71, 96 A. 295, is therefore inapplicable. See Young v. Railway, 78 N. H. 605, 100 A. 603. The relation of carrier and passenger did not terminate until the plaintiff was safely on the ground. 10 C. J. 625, and cases cited. And even if the defendant had no right to remove the ice from the street, due care might nevertheless...