Opinion
3 Div. 434.
January 22, 1920.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Rushton, Williams Crenshaw, of Montgomery, for appellant.
Plaintiff never became a passenger. 171 Ala. 300, 55 So. 111; 149 Ala. 487, 43 So. 98; 186 Mass. 353, 71 N.E. 780, 66 L.R.A. 980, 104 Am. St. Rep. 580, 1 Ann. Cas. 603; 198 Mass. 260, 84 N.E. 464, 15 L.R.A. (N.S.) 960. The street was not a passenger station. 78 Md. 409, 28 A. 397; 156 Mass. 320, 31 N.E. 391, 16 L.R.A. 490, 32 Am. St. Rep. 456. Having crossed the street car tracks and then turned back, the pedestrian was guilty of contributory negligence, and the motorman was not negligent. 159 Ala. 195, 48 So. 798, 133 Am. St. Rep. 32; 147 Ala. 700; 141 Ala. 195, 37 So. 452, 3 Ann. Cas. 333; 110 Ala. 161, 20 So. 317; 148 Ala. 69, 41 So. 616; 22 R.I. 579, 48 A. 1045; 80 App. Div. 37, 80 N.Y. Supp. 231.
Hill, Hill, Whiting Thomas, of Montgomery, for appellee.
The plaintiff was a passenger, and was entitled to protection as such. 136 Ala. 166, 33 So. 886; 133 Ala. 508, 32 So. 261; 194 Ala. 155, 69 So. 518. At least it was a jury question. The court erred in the charges given, and therefore properly set aside the verdict. 197 Ala. 97, 72 So. 343; 168 Ala. 285, 53 So. 279; 16 Ala. App. 565, 80 So. 139; 202 Ala. 422, 80 So. 806; 109 Ala. 299, 19 So. 516; 153 Ala. 193, 45 So. 198, 127 Am. St. Rep. 25; 146 Ala. 29, 41 So. 285; 172 Ala. 488, 55 So. 616, and authorities, supra.
Appellee sued appellant to recover damages for a personal injury suffered by appellee. There was a verdict for the appellant which appellee moved the court to set aside on the ground that the court had committed error in giving to the jury special instructions in writing requested by appellant. The trial court made an order setting aside the verdict, after which this appeal.
At and near the point where appellee was injured appellant maintained and operated three parallel tracks in the street. The distance between the center and north tracks was 5 feet, 3 or 4 inches, from rail to rail. The body of each car overhangs its track about 18 inches, so that the space between cars standing side by side on adjacent tracks is about 2 feet. Appellee waited on the north sidewalk for a car to West End which would pass to the west on the middle track. An Oak Park car passed west on the middle track and came to a stop at the usual place for letting off and taking on passengers. Then the West End car passed and came to a stop in the rear of the Oak Park car. About the same time a car moved west on the north track coming to a stop opposite the Oak Park car. Appellee, observing the car on the north track and crossing that track to the rear of the car, approached the rear of the West End car intending to get on from the right and rear as was customary and proper. As she was about to get on the car, the conductor "motioned to her that passengers were coming out and to stand aside, which she did." The car, approaching from the rear on the north track, struck appellee, causing considerable injuries. Appellee testified that she did not see the car which struck her. The cause was tried on the general issue and the plea of contributory negligence.
The court committed error in giving at appellant's request charges lettered A, B, C, D, and E. There was, of course, no duty on the part of appellant to provide any place, other than the surface of the street which presumptively was provided by the public authorities, for the taking on or discharge of passengers in that part of the street where appellee was injured; but it was the duty of appellant to operate each and every of its cars at that place with reference to the movement of each and every other car so that the safety of passengers or pedestrians on the street, especially those leaving or approaching its cars, might be conserved, and in this sense it was its duty to see to it that the place was safe. On the tendencies of the evidence stated above it was competent for the jury to infer that the place was unsafe by reason of a lack of proper precaution in the movement of appellant's cars. Appellant is held, of course, to a knowledge of the operation of its cars, one with reference to another, and the jury were authorized to infer a lack of due care from what happened — that the conductor of the West End car was, in the circumstances, negligent in directing appellee, in effect, to stand away from the step of his car, to which she had so nearly come, or that the motorman of the car on the north track was negligent in running his car so near to the car which had stopped to let off and take on passengers — either or both, for both co-operated to bring about the result. So, also, appellee was not bound to assume that appellant's conductor would direct her to do an act which in the circumstances was dangerous, and hence it was misleading for the court to instruct the jury that if appellee voluntarily stepped in front of a moving car without stopping, looking, or listening, she was guilty of contributory negligence. On the hearing of the motion to set aside the verdict the trial court recognized the errors into which it had fallen and properly corrected them by granting the motion and ordering a venire de novo.
Affirmed.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.