Loggins v. Southern Public Utilities Co., 181 N.C. 221 (1921)

April 20, 1921 · Supreme Court of North Carolina
181 N.C. 221


(Filed 20 April, 1921.)

1. Street Railways — Carriers of Passengers — Negligence—Status of Passenger.

Whether one who has just alighted from a street car as a passenger ceases to be one immediately upon alighting, so as to cause the company’s responsibility to cease, under the ordinary rule of its liability for the safety of its passengers, depends upon the apparent danger of the one so alighting under the conditions of danger and the surrounding circumstances which should have been observed'by the company’s employees in *222charge of the car, ancl the injury caused by their want of due care could reasonably have been prevented by them.

2. Same — Alighting from Car.

Upon the question of the liability of a street car company to one who had just alighted from its car as a passenger, and had been run over and killed at a regular stopping place in a dangerous portion of a city, arising from traffic conditions on the street, the test is not whether the passenger had actually left the car and reached the street without injury, but whether the place was safe for him to have alighted, under t¡he attending circumstances, there being a distinct difference between a safe landing and landing in safety, and the rule being that he retains his status as passenger until he has stepped from the car to a place of safety on the street or highway.

3. Same — Transfer Points.

Where the transportation of a passenger on a street car requires a transfer for him to reach his destination ordinarily, he is to be regarded as a passenger while making the change from the one car to the other as a part of the continuous trip, and to receive from the carrier’s employees the same degree of care required for the protection of its passengers from injury.

4. Same — Evidence—Infants—Nonsuit—Questions foi’ Jury — Trials.

In an action to recover damages of a street car company for alleged negligence causing the death of the plaintiff’s infant intestat.e, there was evidence tending to show that the intestate and his father, a carpenter, carrying his tools, became passengers on the defendant’s ear, requiring transfers to reach their destination, and forgetting their lunch basket, the intestate ran back, entered the car, got the lunch basket, the conductor opened the car door for him to alight, at a place of much traffic upon the street, and, just after alighting, an automobile struck and killed the intestate: Held, sufficient of defendant’s actionable negligence to take the case to the jury, and that the youth of the intestate, and the impulses or characteristics of boys of his age, in determining the relative rights and duties of the parties, will be also considered in passing upon defendant’s motion as of nonsuit.

5. Motions — Nonsuit—Evidence.

Upon a motion as of nonsuit upon the evidence, the court will not pass upon conflicting evidence, and the inquiry will be to its sufficiency to warrant a verdict for the plaintiff, taken in the light most favorable to him.

Walker and Allen, JJ., dissenting.

Appeal by plaintiff from Webb, J., at February Term, 1921, of Foesytti.

Civil action to recover damages for an alleged negligent injury and killing of plaintiff’s intestate, a boy between eight and nine years of age.

There was evidence for the plaintiff tending to show that on 10 July, 1919, L. A. Loggins, a carpenter, and his infant son took passage on a *223street car of the Southern Public Utilities Company, near 23d Street in the city of Winston-Salem, and paid their fares to East Winston, where plaintiff lived. In order to make this continuous trip over the defendant’s lines it was necessary to ride down Liberty Street in said city to a point near its intersection with Fourth Street, and there to transfer to another car bound for East Winston.

Before reaching this regular transfer point the conductor gave the plaintiff and his son transfer tickets which were to be used on the East Winston car as soon as it reached the junction. They left the initial car at the usual stopping place, which is in “the center of the business part of town, where passengers ordinarily transfer from one car to another, and there is a great deal of traffic and congestion about this corner.”

The father had his arms and pockets full of carpenter’s tools and was carrying some tools on his shoulder. Just as he reached the sidewalk, the boy being several feet from the curbing out in the street, he remarked: “Son, where is our basket?” The basket, containing their lunch, had been left on the car. Almost instantly the boy turned and ran back into the street car to get the basket. He entered at the front door, and the motorman closed the door behind him. After finding the basket, he came back to the front platform. The motorman then opened the door to let the boy out, and just as he stepped off the car to the street an automobile driven by Louisa Holland ran over him and killed him. The boy “turned as he stepped off in the street and his back was to the automobile. He turned and she hit him. People were getting off and on the street car at the back end at the time she passed. The automobile ran over him just as he got off the car and got one step.”

At the close of plaintiff’s evidence, defendant moved for judgment of nonsuit as to the Southern Public Utilities Company, which motion was allowed. Plaintiff appealed.

J. C. Wallace and Raymond G. Pcirlcer for 'plaintiff.

Manly, Tlenclren & Womble and Swinlc, Korner & Hutchins for defendant Southern Public Utilities Company.

Stacy, J.

Considering the evidence most strongly in favor of the plaintiff, which we are required to do on a motion to nonsuit, we think it sufficient .to carry the case to the jury.

The following may be stated as reasonable inferences from the testimony appearing in the record:

1. Plaintiff’s intestate, a boy under nine years of age, was a passenger on one of the street cars of the Southern Public Utilities Company.

*2242. In company with, his father, he left this car at the usual place,, for the purpose of transferring to another car which would carry them to East "Winston.

3. He had in his possession a ticket which entitled him to transfer from one car to another at this point.

4. After leaving the car, but before reaching the sidewalk, and while passengers were still getting on and off, he returned through the front entrance to get his lunch basket, which inadvertently had been left on the ear.

5. The defendant’s motorman was aware of the boy’s movements and opened the door for him to disembark the second time.

6. This happened near a corner in the center of the business part of town where there is a great deal of traffic and congestion.

7. Just as he stepped from the car to the street, and probably had taken one step, he was struck by an automobile and killed.

His Honor granted the defendant company’s motion for judgment as of nonsuit upon the theory that plaintiff’s intestate was not a passenger at the time of his injury, and that the defendant company owed him no affirmative duty or care.

By the clear weight of authority the relation of passenger and carrier ordinarily ends when the passenger safely steps from a street car to the street. He then becomes a pedestrian on the public highway, and the carrier is not responsible for his safe passage from the street to the sidewalk; for once safely landed in the street, his rights as a passenger cease. Wood v. Public-Service Corporation, 174 N. C., 697; Whilt v. Public-Service Corporation, 76 N. J. L., 729; Clark v. Traction Co., 138 N. C., 77; Palmer v. R. R., 131 N. C., 250; Smith v. City Ry. Co., 29 Or., 539; Creamer v. West End St. Ry., 156 Mass., 320; Keaton v. Traction Co., 191 Pa. St., 102; Street R. R. v. Body, 105 Tenn., 669; Oddy v. W. Street Ry. Co., 178 Mass., 341; Duchemin v. Boston, etc., Co., 104 Am. St. Rep., 580, and note.

However, the courts are not universally in accord on this subject. In Johnson v. Washington Water Power Co., 62 Wash., 619, it is stated: “A passenger on alighting from a street car is more or less subject tO' the conditions in which the carrier has placed him, and common prudence dictates that he should have a reasonable time to note the surroundings and prepare to protect himself from the ordinary dangers of the street.” And in Louisville Ry. Co. v. Kennedy, 162 Ky., 560, it is said: “When a street car stops to permit a passenger to alight he is still a passenger until he has had a reasonable opportunity to reach a. *225place of safety.” Again: “It is tbe duty of a street car company to select a reasonably safe place for landing passengers wherever it may stop a car for tbat purpose.” Macon Ry. Co. v. Vining, 120 Ga., 511; and to like effect: Birmingham Ry., Light and Power Co. v. O’Brien, 185 Ala., 617; Welsh v. Spokane, etc., R. R. Co. 91 Wash., 260; Montgomery Street Ry. Co. v. Mason, 133 Ala., 529, and Melton v. Birmingham Ry., L. and P. Co., 153 Ala., 95. See, also, 10 C. J., 627.

Ordinarily a person would not step from a car to tbe street in tbe presence of imminent danger, or unless it were safe to do so; and safely landed in the street does not mean simply reaching tbe street witb botb feet and no more. The test could not be as to whether tbe passenger bad actually left tbe car and reached tbe street without injury, but was it safe for him to do so under tbe attending circumstances ? Obviously, there is a difference between a safe landing and a landing in safety. Tbe one has reference to tbe act of tbe passenger in stepping from tbe car to tbe street, tbe other to tbe condition in which be finds himself immediately after accomplishing this act.

We think a fair statement of tbe rule would be to say tbat a passenger, on alighting from a street car at tbe end of bis journey, loses bis status as a passenger when be has stepped from tbe car to a place of safety on tbe street or on tbe highway. The question should not be made to depend entirely upon tbe number of steps which tbe passenger may take on leaving tbe car, but rather upon the circumstances and conditions under which be alights. He is entitled to be discharged in a proper manner and at a time and place reasonably safe for .that purpose.

It is also held that the relation of passenger and carrier continues while the passenger is transferring from one street car to another, he having been furnished a ticket enabling him to do so, when such transfer is part of a continuous trip, or, at least, that be is entitled to tbe same degree of care as a passenger to insure bis safety from injury by tbe operation of tbe same or other cars of the carrier, or from defects or negligence in tbe use of any of its appliances. Wilson v. Detroit United Ry., 167 Mich., 107; Citizens Street Ry. Co. v. Merl, 134 Ind., 609; Keator v. Traction Co., 191 Pa. St., 102; Baldwin v. R. R. Co., 68 Conn., 567; Walger v. Ry. Co., 71 N. J. L., 356.

In Clark v. Traction Co., 138 N. C., 77, it is said: “A person in transferring from one street car to tbe other is still a passenger, tbe transfer being but a part of tbe trip, for the whole of which tbe company agrees to convey in safety.”

In Walger v. Jersey City Ry. Co., supra, the plaintiff was a passenger on one of the defendant company’s cars. He disembarked from this car for the purpose of transferring to another, a ticket enabling him to do so having been furnished him on the car upon which he first took *226passage. Tbe place at wbicb be alighted was the regular transfer point. After getting off the car, and as he was about to cross over to the other car, or while he was doing so, the car which he had left started to go around what is described in the case as “the loop,” and its rear end struck him, knocked him down and injured him. Plaintiff testified that the accident happened immediately after he got off the car and before he had taken a single step away from it. The Court held that he was still a passenger at the time he was struck, and entitled to be regarded as such.

In Baltimore and Ohio R. R. Co. v. State, use Houser, et al., 60 Md., 449, the deceased was a passenger “with a ticket that entitled him to be carried safely from Hagerstown to Frederick. By the regular route and mode of carriage, it was necessary for him to change cars at the "Weverton station and to cross over the intervening tracks of the defendant from one train to another. In making-this transit he continued to be a passenger of the defendant, and entitled to the protection that the highest degree of care on the part of the defendant could afford under the circumstances.”

It may be that this rule has been stated too broadly in some of the cases, but it would be well-nigh impossible to couch a satisfactory limitation in general terms, for as to whether a person, under a given state of facts, would be considered in law a passenger while transferring from one street car to another, although holding a transfer ticket, must be determined ultimately by the facts and circumstances attending the transfer in each j)articular case.

There is another line of cases in which a passenger does not lose his rights as such, under conditions somewhat different from those above stated.

In Tompkins v. Boston Elevated Ry. Co., 201 Mass., 114, it was held that a passenger who, on account of the crowded condition, was riding on the vestibule or platform of the car, did not cease to be a passenger by temporarily alighting for the purpose of permitting other passengers to get off the car more conveniently. The Court saying: “The necessity or courtesy which prompted his action did not terminate his status as a passenger.”

In Chicago and Eastern R. R. Co. v. Flexman, 103 Ill., 546, it was held that where a passenger on a railroad, on arriving at his destination, missed his watch and, with the consent of the conductor, remained on the train for the purpose of looking for it until he reached another station, the company occupied the same position towards the passenger as if he had paid his fare to such other station.

In Ormond v. Hayes, 60 Tex., 180, it was held that where a passenger, upon alighting from a train, went to the baggage car for the xiurpose *227of obtaining bis baggage, and there aided tbe servants of tbe carrier in removing tbe baggage from tbe car, tbe relation of passenger and carrier did not- cease by that act, be not bolding a check for bis baggage at tbe time.

In tbe case at bar, under all tbe facts and circumstances appearing on tbe record, we are of tbe opinion that plaintiff’s intestate, while alighting from tbe ear after getting bis lunch basket, was entitled to be regarded as a passenger on defendant’s car and still within tbe sphere of its protection as such. Palmer v. R. R., supra. We think be was within bis rights as a passenger in immediately returning for bis basket. This was done with tbe knowledge and consent, or at least acquiescence, of defendant’s motorman. He was permitted to take tbe basket into tbe car without objection; and, under tbe same conditions, be returned to get it. Had be not been a passenger bis basket would not have been on tbe ear at all; neither would be. What really transpired was only an incident occasioned by bis mode of traveling. It was not unusual or uncommon, and doubtless not altogether unexpected. Tbe agility with which be ran back into tbe car, after bis attention bad been called to tbe missing article, was characteristic of boyish impulses;-and bis youthfulness should be taken into consideration in determining tbe relative rights and duties of tbe parties.

Tbe defendant elicited on cross-examination some evidence not as favorable to tbe plaintiff as that stated above, but we are not permitted to pass upon conflicting testimony when considering a judgment of nonsuit. Our inquiry is directed to its sufficiency to warrant a verdict in favor of tbe plaintiff. Tbe jury alone may consider its credibility. Shell v. Roseman, 155 N. C., 90.

With tbe case going back for a new trial, we refrain from further comment or discussion, as tbe defendant’s evidence may show a different state of facts from what now appears.


Walker and AlleN, JJ., dissenting.