Woods v. North Carolina Public Service Co.

• Decision Date: 05 December 1917
• Docket Number: 392.
• Citation: Woods v. North Carolina Public Service Co., 94 S. E. 459 (N.C. 1917)
• Parties: 174 N.C. 697, 1 A.L.R. 942 v. NORTH CAROLINA PUBLIC SERVICE CO. WOODS
• Court: North Carolina Supreme Court

94 S.E. 459

174 N.C. 697, 1 A.L.R. 942

WOODS v. NORTH CAROLINA PUBLIC SERVICE CO.

No. 392.

Supreme Court of North Carolina

December 5, 1917

Appeal from Superior Court, Guilford County; Long, Judge.

Action by Anna E. Woods against the North Carolina Public Service Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover damages for personal injury caused, as the plaintiff alleges, by the negligence of the defendant street railway company. On the 5th of July, 1916, the plaintiff became a passenger on one of the defendant's street cars for the purpose of going to her home west of the city of Greensboro, and when the car reached a point nearly opposite Field's store, about one-half mile west of the corporate limits of Greensboro, it stopped at a regular stopping place and at the destination of the plaintiff for the purpose of allowing passengers to alight. The plaintiff while in the act of alighting from the car, or immediately after she had reached the ground, was stricken by an automobile running at from 25 to 30 miles an hour, and was seriously injured. The automobile was running in an opposite direction from the car. The evidence of the defendant tended to show that the plaintiff was injured 10 or 12 feet from the street car while she was attempting to pass to the sidewalk. There was also evidence on the part of the plaintiff that if she had been permitted to get out on the other side of the street car she could have stepped from the car in safety to a cinder path. At the conclusion of the evidence there was a motion for a judgment of nonsuit, which was denied, and the defendant excepted. There was a verdict and judgment for the plaintiff, and the defendant appealed.

Walker and Brown, JJ., dissenting.

In action by plaintiff for injuries from being struck by passing automobile while she was alighting from defendant's street car, question of contributory negligence held for jury.

Jerome Scales & Jerome, of Greensboro, for appellant.

G. S Bradshaw and John A. Barringer, both of Greensboro, for appellee.

ALLEN J.

The only question presented by the appeal from the refusal to nonsuit the plaintiff is whether there is any evidence fit to be submitted to the jury of negligence on the part of the defendant, and in the consideration of this question we must accept the evidence of the plaintiff, and construe it in the light most favorable to her. We are not permitted to base our judgment on the evidence of the defendant, nor can we draw the inference, favorable to the defendant--that the automobile was running on the extreme right side of the road, and turned suddenly and struck the plaintiff--as no witness testified that the automobile changed its course, and one witness Boyles testified, "The automobile was coming along by the side of the car." We cannot act upon the statement in the defendant's brief that the evidence shows that the automobile turned suddenly and struck the plaintiff, in the absence of evidence of the fact, and it can only be inferred upon the presumption that the driver of the automobile was obeying the law by being on the right-hand side of the road, when all the evidence shows she was violating the law by exceeding the speed limit.

The evidence is irreconcilable; the plaintiff testifying that "as soon as I struck the ground the automobile got me," "I had just cleared the car when it got me," "I just barely cleared the car to get down to the street," "I hadn't made any steps," and "I just stepped off the car and hadn't taken a single step," and the witnesses for the defendant that she was 10, 12, or 15 feet from the car when she was stricken. Giving, therefore, to the evidence a construction favorable to the plaintiff and accepting it as true, as it is our duty to do, it shows that the defendant permitted the plaintiff, a passenger, to alight on a roadway, along which one or two automobiles were passing each minute, immediately in front of an automobile moving rapidly, without warning, and when the conductor of the defendant, who knew of the dangers of the road, did not look to see if any danger was approaching. Is this evidence of negligence?

The negligence of the driver of the automobile is established by the evidence, but this does not relieve the defendant from liability, if it was also negligent, as there may be two proximate causes of an injury, and where this condition exists, and the party injured is not negligent, those responsible for the causes must answer in damages, each being liable for the whole damage, instead of permitting the negligence of one to exonerate the other. It is in the application of this principle it is held, except where the doctrine of comparative negligence prevails, that the plaintiff cannot recover if his own contributory negligence concurs with the negligence of the defendant in causing the injury, because as his negligence is one of the proximate causes, he as well as the defendant is liable for the whole damage, and as there is no contribution among tort-feasors, he cannot recover anything from the defendant. "There may be more than one proximate cause of an injury, and it is well established that when a claimant is himself free from blame, and a defendant sued is responsible for one such cause of injury to plaintiff, the action will be sustained, though there may be other proximate causes concurring and contributing to the injury. In 21 Am. & Eng. Enc. (2d Ed.) 495, it is said: 'To show that other causes concurred in producing or contributing to the result complained of is no defense to an action of negligence. There is indeed no rule better settled in this present connection than that the defendant's negligence, in order to render him liable, need not be the sole cause of plaintiff's injuries.' Again, on page 496, it is said: 'When two efficient proximate causes contribute to an injury, if defendant's negligent act brought about one of such causes, he is liable.' " Harton v. Telephone Co., 141 N.C. 461, 54 S.E. 299, approved in Harvell v. Lumber Co., 154 N.C. 262, 70 S.E. 389, where it was pointed out that the difference of opinion in the Harton Case was only as to the application of the principle to the facts in that record.

We must then inquire as to the negligence of the defendant, and here the decision depends on whether the defendant owed a duty to the plaintiff, who was a passenger on its car, and who was injured while alighting or immediately thereafter, according to her evidence, and whether it failed in the performance of this duty. There is a conflict of authority as to the obligation of the street railway after a passenger has left the car, the courts of Alabama and Kentucky holding that it must provide a reasonably safe place and way (Montgomery v. Street Railway, 133 Ala. 529, 32 So. 261; Louisville R. Co. v. Mitchell, 138 Ky. 190, 127 S.W. 770), and others that, as the company has no stations and no control over the streets, its obligation should be coextensive with its control, and that the relation of carrier and passenger ceases when the passenger has safely alighted (Clark's Accident Law, 13; Creamer v. Railroad, 156 Mass. 321, 31 N.E. 391, 16 L. R. A. 490, 32 Am. St. Rep. 456; Street Railroad v. Boddy, 105 Tenn. 669, 58 S.W. 646; Schley v. Railroad, 227 Pa. 494, 76 A. 207, 136 Am. St. Rep. 906, 19 Ann. Cas. 1020, and note; Stewart v. Railroad, 88 Neb. 209, 129 N.W. 440, Ann. Cas. 1912B, 863, and note).

The weight of authority seems to be with the latter view, and also that in any event the railway must exercise the highest degree of care, and must afford the passenger an opportunity to alight in safety. The court says in Anderson v. Street Railroad Co., 12 Ind.App. 197, 38 N.E. 1109.

"There is a marked difference between the duties the law imposes upon those who operate street railways and those who operate ordinary steam railways. The latter usually run upon scheduled time and have fixed places for receiving and discharging passengers. There is a higher degree of care imposed upon street railways than upon ordinary steam railways. When their cars stop for passengers to alight it is the duty of their servants to stop long enough for the passengers to alight, and to see that the car does not start again while any one is attempting to alight or exposed to danger."

In Smith v. St. Paul City Railway Co., 32 Minn. 3, 18 N.W. 828, 50 Am. Rep. 550:

"The defendant was a carrier of passengers for hire, owning and controlling the tracks and cars operated thereon. It is therefore subject to the rule applicable to passenger carriers. * * * 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. * * * This rule extends to the management of the cars and track, and to all the subsidiary arrangements necessary for the safety of passengers."

In Richmond City Railway Co. v. Scott, 86 Va. 907, 11 S.E. 405:

" 'Passenger carriers bind themselves,' says a learned author, to carry safely those whom they take into their coaches, as far as human care and foresight will go--that is, to the utmost care and diligence of very cautious persons. * * * And in N. & W. R. R. Co. v. Prinnell, 84 Va. this court said: 'The implied contract to carry safely includes the duty of giving the passengers reasonable opportunity to alight in safety from the train, and a violation of this part of the company's duty is culpable negligence, for which an action will lie.' In Wharton on Negligence, § 649, it is laid down that: 'When a danger approaches it is the duty of the officers of the road to notify passengers, so that they can take steps to avoid it; and failure to

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