Negligence. Street Railway. Carrier, Of passengers. Evidence, Of assent by silence.
In an action against a street railway corporation for personal injuries alleged to have been sustained while the plaintiff was boarding a car of the defendant as a passenger, if there is evidence tending to show that at a signal from the plaintiff the car had come to a stop at a usual stopping place, and that when the accident occurred the plaintiff was in the act of entering the car with one foot upon the step without any objection or warning from the conductor, who was standing in the doorway which the plaintiff was about to enter, a finding is warranted that the plaintiff was a passenger when he received his injuries.
In the use of the kind of street railway car which is called semi-convertible and in which the doors are opened and shut by a device operated by the motorman, it is not necessary that the door to admit passengers should be entirely open in order that an assent to the entrance of a passenger may be inferred from the silence of the conductor who is standing in the doorway. It is enough to warrant such an inference of assent if the door is open so far that the person proposing to enter as a passenger is justified in believing that the opening is intended to afford him an opportunity to enter and no objection to his doing so is made by the conductor.
In an action against a street railway corporation for personal injuries alleged to have been sustained while the plaintiff was in the act of entering a car of the defendant as a passenger, if it appears that the car was of the kind which is called semi-convertible and in which the doors are opened and shut by a device operated by the motorman, and the evidence tends to show that the door when nearly open came to a stop and then started to open farther, that the plaintiff, believing that the doorway was ready for him to enter, it being in the evening and very dark, in feeling for the handle of the door or the rail put his hand upon the door itself and that the door in opening the rest of the way cut off the end of his finger, and if it also appears that during this time the conductor was standing in the doorway and was silent and gave the plaintiff no warning, it cannot be ruled as matter of law that the plaintiff was not in the exercise of due care in placing his hand upon the door instead of upon the handle of the door or upon the rail next to it to assist him in entering.
It cannot be stated as a general proposition of law that a conductor of a street railway car is not bound to warn a person intending to enter the car not to place his hand on a door that is in the process of opening, because the circumstances may be such that the conductor has reason to apprehend that a person intending to enter the car may sustain an injury in entering it by placing his hand on the door which is in the process of opening, if he is not warned, and in that case it is the duty of the conductor to give such a warning.
In an action against a street railway corporation for personal injuries alleged to have been sustained while the plaintiff was in the act of entering a car of the defendant as a passenger, if it appears that the car was of the kind which is called semi-convertible and in which the doors are opened and shut by a device operated by the motorman, and the evidence tends to show that the door when nearly open came to a stop and then started to open farther and in opening the rest of the way cut off the end of the plaintiff's finger, there being other evidence tending to show that the plaintiff in placing his hand on the door was in the exercise of due care, a finding is warranted that the plaintiff's injury was due either to negligence on the part of the motorman who operated the lever which opened and shut the door or to some defect in the construction of the car.
MORTON, J.
This is an action of tort for personal injuries. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the presiding judge to give certain rulings that were requested and to that portion of the charge which left it to the jury to say whether the plaintiff could become a passenger before the door was entirely open. All of the rulings requested except rulings 2, 3 and 5 have been waived. Those are as follows:
"2. There is no legal duty on the part of a conductor to warn a person intending to take a car not to place his hand upon a door which is in the process of opening. 3. There is no evidence in this case that the car was of improper design or construction." "5. If the plaintiff in feeling for the handle of the door before the door was entirely open accidentally put his hand upon the door of the car, thereby catching his finger and causing it to be crushed, he would not be entitled to recover for there would be no evidence of negligence on the part of the defendant."
We think that the rulings thus requested were rightly refused, and we see no error in the rulings and instructions that were given. It was for the jury to say whether the plaintiff had become a passenger at the time when he was injured. There was evidence tending to show that the car had come to a stop at a usual stopping place, at his signal, and that when the accident occurred he was in the act of entering the car, with his foot upon the step, without any objection or warning from the conductor who was standing in the doorway. This evidence, if believed, warranted a finding that the plaintiff was a passenger when injured. Evidence introduced by the defendant would warrant the inference that the plaintiff attempted to board the car before it came to a full stop and before the conductor had a chance to warn him; but what the facts were in regard to the matter was plainly for the jury. The plaintiff could not become a passenger without the assent, expressed in some form, of the conductor. Such an assent might be understood from the absence of any objection. It was not necessary to constitute such an assent that the door should be entirely open. It was enough if it was opened so far that the plaintiff was justified in believing that it was intended to afford him an opportunity to enter and no objection was made to his doing so by the conductor.
It could not be ruled as matter of law that the plaintiff was not in the exercise of due care in placing his hand upon the door instead of upon the handle or the rail next to it, to assist him in entering, if he believed, as he testified that he did, that the door was open, and he received no warning to the contrary from the conductor. Neither could it be ruled as a general proposition of law that a conductor was not bound to warn a person intending to take a car not to place his hand upon a door that was in the process of opening. If the circumstances were such that a conductor would have reason to apprehend that a person intending to take a car might sustain injury in entering it by placing his hand upon a door that was in the process of opening, if not warned, then in the exercise of the high degree of care required of him it would be his duty to give such warning. The second request was therefore properly refused. The plaintiff's testimony tended to show that the door came to a stop when nearly open and then started again. This could have been found to be due either to negligence on the part of the motorman who operated the lever which opened and shut the door, or to some defect in the construction of the car. The third request could not therefore have been properly given. The fact that the plaintiff in feeling for the handle may have accidentally put his hand upon the door before it was entirely open would not prevent him from recovering if he was in the exercise of due care and the injury which he received was due to the negligent manner in which the door was operated or to a defect in the construction of the car. The judge therefore properly declined to give the fifth request.
Exceptions overruled.