Sweet v. Louisville Railway Co.

Opinion of tiie coitp.t by JUDGE O’REAR

Reversing.'

Appellant was a passenger on appellee’s street railway on the evening of July 4, 1899. It was dark when the car reached its destination. The cars were stopped at or ueai the usual street crossing. In attempting to alight, appellant. fell, severely injuring her ankle. She complains of appellee, charging it with negligence in stopping the car at a point wiiere the steps she wais to use in alighting w’ere just over a hole or unusual depression in the street, and in not warning her of the danger before she stepjied from the car. The evidence disclosed that the street in question was a macadam road. It had become so worn at this particular point that a depression wais formed of two or three feet in length, and six inches deep. It was at the edge of the appellee’s1 track, and so near it that one stepping from the car wmuld be apt to step into it. It was easily to be seen in the light. At the close of the evidence for appellant a peremptory instruction to find for the defendant was given. For appellee it is argued that the street at the point in question wras under the exclusive control of the city, which alone had either the duty or the right to make repairs, and that appellee merely undertook to safely carry appellant to *18 any desired point on its line, and to allow her to leave the car at any customary stopping- place, such as at street crossings. It is stated, and it seems to be true, that a different duty attaches to street railway and to .steam railway operators in respect to furnishing- safe - places for discharging their passengers. The latter must furnish such, while the former is under no such obligation, but discharges its passengers at convenient points along the streets it traverses-Booth, St. Ry. Law, sec. 32(5. If the street at the place of discharging- the passenger presents a dangerous condition to one alighting there, and such danger is obvious to the passenger, the carrier is not liable to him for injuries received from such defects. But where the danger is known, or is such as must have been known, to the carrier, and is unknown to the passenger, as where, because of the darkness, he can not see it, the carrier is bound to warn the passenger of the danger, or to assist him 'in safely alighting, or stop the car at a point beyond or short of the dangerous point. Its failure to take one of these precautions renders it liable to the passenger sustaining injury because of such neglect. Railway Co. v. Scott, 86 Va., 902 , 11 S. E., 404 ; Stewart v. Railway Co. (Minn.), 80 N. W., 854 ; Sowash v. Traction Co., 188 Pa., 618 , 41 Atl., 743 . While the street railway company is not bound to furnish safe places for depositing its passengers, it is bound to either select them or to warn the passenger of the conditions. Whether the hole in this instance was the cause of appellant’s injury, or was such a defective place for discharging passengers as to render it obviously unsafe, are questions of fact that should have been submitted to the jury.

The judgment is reversed, with directions to award appellant a new trial under proceedings not inconsistent herewith.

Whole court sitting.