Opinion
NO. 23107
Decided March 30, 1932.
Negligence — Directed verdict error — Evidence to be interpreted most favorably to plaintiff — Intending passenger struck by street car and injured by passing automobile — Questions for jury — Whether motorman negligent in starting car without according protection — Whether motorman negligent in not seeing passenger or hearing signal.
ERROR to the Court of Appeals of Cuyahoga county.
This is a proceeding in error, seeking to reverse a judgment of the Court of Appeals of Cuyahoga county. The original action, in the court of common pleas of that county, was one for damages for personal injury.
The accident out of which the lawsuit arose occurred on March 22, 1929, shortly after nine o'clock in the morning, on Broadway avenue, in the vicinity of Blanche avenue, in the city of Cleveland, Ohio. Broadway avenue runs in a general easterly and westerly direction, and Blanche avenue runs in a general northerly and southerly direction, ending at Broadway avenue, but not crossing it. There are double street car tracks for the east-bound and west-bound Union avenue street cars on Broadway avenue, located near the center of the street, with a vehicular roadway for eastbound vehicles south of the south rail of the eastbound street car tracks, and a vehicular roadway for west-bound vehicles located north of the north rail of the west-bound street car tracks, the center of Broadway avenue being between the two sets of street car tracks. Over the center of this intersection there is an electric traffic signal light which by its flashes and changes from red to green colors directs the movement of traffic east and west on Broadway avenue, and the traffic entering Broadway avenue from Blanche avenue. There is also a car stop sign for east-bound Union avenue street cars, located on the southerly side of Broadway avenue about six or eight feet west of the west line of Blanche avenue.
Shortly before the accident occurred, an east-bound Union avenue street car and several automobiles were going in an easterly direction on Broadway avenue, and as they approached and neared the vicinity of the place where Blanche avenue runs into Broadway avenue, the traffic light at this intersection flashed "red" on Broadway avenue against the east and west traffic, so the east-bound street car and automobiles came to a stop waiting for the red light to change to a green or "go" color again. The east-bound Union avenue street car, about which complaint is made in this law-suit, came to a stop just west of the westerly line of this intersection.
The place where the street car stopped was a regular stopping place where passengers might enter and leave the street car. While the traffic light at this intersection was showing red for east and west Broadway avenue traffic, but green for north and south or Blanche avenue traffic, the plaintiff, Mary Krofta, carrying several bundles and parcels, a shopping bag and her pocketbook, came out of the Fifty-eighth Street Market House, which is located on the north side of Broadway avenue, to the northwest corner of this intersection, and started across Broadway avenue to its southerly side with the traffic light showing in her favor. She was crossing on the westerly crosswalk across Broadway avenue at this intersection, intending to cross to the south side of the street, and as she was passing in front of the street car, the doors of which for entering and leaving the car were closed, she turned to the right, or westerly, and standing near the front door she rapped on the glass pane of such door twice, and was about to rap the third time. On the front of the street car was a sign which said, "Enter at Front." An east-bound Essex automobile, driven by the witness Watjen, was also stopped, headed in the same direction as the street car. The front of this automobile was opposite the front door of the street car and a few feet to the right thereof. Mary Krofta was standing near the street car, between it and the automobile, which was slightly back of her.
The evidence fails to disclose any signal or notice given her that the street car would start, nor was there any notice given her that the front door of the street car would not be opened and that she would not be received as a passenger. She claims that without any such notice the street car was started and struck her on the left side, causing her to lose her balance and fall to the pavement. The Essex automobile started about the same time the street car began to move, and Mrs. Krofta, falling to the pavement, was rolled by the automobile, causing her the personal injuries which she claims to have sustained, and compensation for which she now seeks to recover from the street car company.
Mrs. Krofta was never on the street car at any time, nor did she have either foot upon the step of the street car, nor were there any other persons waiting to get on the street car at the time and place in question.
At the close of plaintiff's testimony, a motion was made for a directed verdict in favor of the street car company, which motion the court of common pleas sustained. Plaintiff below, Mary Krofta, prosecuted error to the Court of Appeals, in which court the judgment of the common pleas court was reversed and the cause remanded for further proceedings according to law. The street car company now prosecutes error to this court to reverse such judgment.
Messrs. Squire, Sanders Dempsey and Mr. Donald M. Marshman, for plaintiff in error.
Messrs. Anderson Lamb and Mr. Homer H. Marshman, for defendant in error.
Did the trial court err in directing a verdict against Mary Krofta at the conclusion of her evidence?
At that stage of the case she was entitled to have the evidence given the most favorable interpretation to her contention, and if the proof and inferences were such that fair-minded men could at least reasonably arrive at different conclusions therefrom, as to claimed dereliction of duty by the motorman, proximately causing her injury, the facts in issue were triable by jury.
Ought the motorman, before starting the street car, in the proper discharge of his duties, have seen Mrs. Krofta as she was standing with her arms full of bundles at a proper place for passengers to enter the car, which by its sign was to be entered at the front door, the car being so equipped that a view was obtainable by the motorman at the side as well as in front, and did he accord her the protection due an intended passenger at such place and under such circumstances?
Ought the motorman, in the exercise of due care, have heard Mrs. Krofta as she rapped on the front door of the car, where, by the sign on the car, she was directed to enter, if she wished to become a passenger, the motorman having control of the doors and it being a fair presumption that he was in his proper place to perform his duty toward intended passengers?
The record showed at least some evidence from which, given its most favorable interpretation to Mrs. Krofta, a reasonable inference might be drawn supporting her contention that the motorman could have seen or heard her in her attempts to attract his attention in order that she might enter the car, she being at a proper place for passengers to board the car, and that the motorman was therefore derelict in his duty toward her as an intended passenger. Whether he was thus derelict in his duty became, therefore, a proper question for the jury to determine.
The record discloses that Mrs. Krofta testified:
"Q. And the car was standing still, was it? A. Yes.
"Q. Was that a regular stopping place? A. Yes, it was a regular stopping place, there was a sign there.
"Q. As you walked up to the door of the car you may tell the jury what you did? A. I clapped on the motorman — I clapped on the door — with my left hand.
"Q. You clapped on the door — what do you mean by that — knocked on it? A. Yes, sure.
"Q. What happened? A. He didn't open, I knocked again but he didn't open again, so I wanted to knock again and he started the car and as I was knocking at his car he had the doors closed * * *."
Mrs. Krofta was corroborated by the witnesses Stephen Nostick and Herman W. Watjen, Jr., the driver of the Essex automobile, as to her attempts to become a passenger. Watjen also testified: "There was a slight projection there at the edge of the door where she was standing, and that is what did it," the witness having reference to the portion of the street car which struck Mrs. Krofta and caused her to fall to the street, rolling under the automobile of this witness.
Measured by the standard heretofore indicated, the Court of Appeals found that the record did contain proof sufficient to justify its submission to the jury, and that therefore the trial court erred in sustaining the motion for a directed verdict. It thereupon reversed such judgment and remanded the cause for further proceeding. In so doing, the Court of Appeals did not err and its judgment is therefore affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, DAY, ALLEN, KINKADE, and STEPHENSON, JJ., concur.