Gotsch v. Market Street Railway

TYLER, P. J.

Action for damages for personal injuries. The injury suffered is alleged to have been sustained by plaintiff as a result of the premature starting of one of defendant’s cars while she was alighting therefrom. The case was tried by a jury, which rendered its verdict in plaintiff’s favor and against appellant in the sum of two thousand dollars. There was a conflict in the evidence as to the manner in which the accident occurred. Plaintiff’s theory as alleged in her complaint was that on October 14, 1922, she was riding as a passenger upon one of defendant’s cars in an easterly direction on Market Street; that at First Street the car stopped for the purpose of allowing plaintiff to alight therefrom; that while she was in the act of so doing, the car was suddenly started, throwing her violently to the ground and inflicting upon her the injuries of which she complains. Defendant’s version of the accident presented a totally different situation. It claimed that the accident was caused by plaintiff’s negligence in permitting a part of her wearing apparel to come in contact

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with the fender of the car after she had ceased to be a passenger and as she was in the act of passing to the rear of the car. It is not contended that the evidence is insufficient as a matter of law to sustain the verdict, but it is claimed that the evidence as to how the accident happened preponderates in favor of defendant’s theory, for which reason the judgment should be reversed for the errors complained of.

The principal point relied upon for a reversal relates to certain instructions given by the trial court with reference to the degree of care that defendant was bound to exercise toward the plaintiff. At .the request of plaintiff and in support of her theory of the case, the court instructed the jury on this

quantum

of care as follows: “You are instructed that it is the duty of defendant as a common carrier of passengers to exercise the utmost degree of care in the transportation of passengers, and a failure to exercise such care, in law, constitutes negligence on the part of said defendant.

A common carrier of passengers is bound to exercise the utmost care and diligence of very cautious persons as far as human care and foresight can go, and is responsible for injuries occasioned by the slightest neglect against which human care and foresight might have guarded.