INJURY TO ONE ASSISTING PASSENGER. IN PLACING CHILD ON CAR..

Court of Appeals for Mahoning County.

#### Mahoning Valley Railway Company v. Minnie Gorz.

Decided, October 6, 1917.

*Negligence—Duty of Those Operating Street Cars—Toward Persons Entering Cars Without Intending to Become Passengers—Injury to One Assisting in Getting Child on Car—Charge of Court.*

1. In the absence of a rule of the company or a custom permitting persons to enter its car, when it stops to receive passengers, for the purpose of assisting passengers with children or baggage, a railway company, operating street cars by electricity over the streets of a city, is only required to exercise toward such persons ordinary care after it becomes aware of their presence within the car.

2. Such railway company is chargeable with notice of the presence of such persons within its car, not only when those in charge of the car have actual notice, but when in the exercise of ordinary care they should have notice of their presence.

3. Ordinary care charges such railway company with notice of whatever those in charge of the ear should know in the proper discharge of their duties in the operation of such car.

*Harrington, DeFord, Heins & Osborn,*for plaintiff.

*Anderson, Lamb & Tetlow,*contra.

Pollock, J.

This is an action in error and is brought to reverse a judgment obtained by Minnie Gorz against the Mahoning Valley Railway Company in the common pleas court of this county.

Minnie Gorz, the plaintiff below, was a resident of the city of Youngstown, and on the afternoon of October 17th, 1915, her daughter, Mrs. Pritchard, with her chald two years old, was visiting her.

About nine o’clock on that evening the daughter wishing to go home, Mrs. Gorz took the child in her arms and in company *402with Mlrs. Pritchard walked down Berlin street to Federal street, upon which street the Mahoning Valley Railway Company, the defendant below, maintained its tracks and operated passenger cars over said tracks by electricity. 'They signalled an appproaching car which, when it .reached the, intersection of Berlin and Federal streets, stopped and four passengers alighted therefrom. This was a regular and usual stop for the discharge and receiving of passengers.

After these passengers alighted Mrs.’ Gorz set the child on the rear platform of the car, and just as she set -the child-dttwnj and before she had-released her hold on it, the car start'ed;and continued until it'crossed Berlin street.' ' "

Mrs. Gorz claims that when the car started it was started with a jerk, and she was thrown down on the steps of the cár' with her feet hanging over the steps, and was dragged in that way across, the street to where the car stopped. She did not intend to become a passenger on- the ear; she only intended placing the child on the platform and then withdrawing from the car and allowing the child’s mother, who intended to become a passenger, to take charge of the child.

This was. a large ear—possibly used in interurban traffic— with a partition across it, the front end being used as a smoking compartment and the rear end of the car occupied by ladies' and other passengers. This ear had two steps leading down from the rear platform. - ■

The conductor testifes that he. was standing in the rear compartment, perhaps near the partition, looking through the windows watching the passengers leave the car,-and 'to-see if anyone wished- to. become a' passenger. He testifies .that..'he did not see Mrs. Gorz. .' . ■ .

The errors complained of are in the charge of the .court, and also that'the verdict is excessive.' The first error which’ we will

notice occurs in. the charge. - - ' ■ .....• . ' -

•The court said to the -jury that the'wurd “dragged” as used by one or more of the witnesses, and also in the- petition, would ordinarily mean that some ' portion . of her. body.’ was dragged along the pavement, but he instructed the' jury .that they were not required to apply so narrow a construction, be*403cause under this pleading and- under the, evidence, whether her feet touched the', pavement or not, if she was dragged .along against her will forcibly by tlie car—whether she was lying on the car or had grasped hold of it. after, it had started—it would be within the. meaning .of the..word “¡dragged.”. No doubt this ex-, pression of the court was occasioned by reason of some remarks of counsel" during'the'arguments :of the ease, and'the?.court couples what he says in'regard to the petition with'the language, used byiwitnesses... '. k

It is required'of the court to' explain the petition and construe the words or language used therein, but it should be left to the jury'to determine the meaning of words and language used by .the witnesses while testifying, and the court has'no right to direct the jury to give to words used by the witnesses any other than their ordinary meaning, unless the words used had .a.technical meaning not known or understood ordinarily, and were so used by the witnesses. But the error complained of does-not'affect the substantial rights of the' defendant below and fpr that reason was not prejudicial.

Again the court charged , the jury in regard to the damages which the plaintiff below might recover that:

'“If she is entitled to recover, she is entitled to recover that fair amount of damages that you say would be to her full, compensation fon .that-which you shall determine from the evidence you have before-you she has suffered in the sense,of damages tp her person, as a result of what you have theretofore found was a .negligent oipission of duty on the part, of defendant. ”

It is urged that -the court erred in using the expression ‘ ‘ full compensation. ’ ’ Mrs. G-orz was a married woman and there was testimony tending to show that she had received medical attention from two or three doctors; that she was unable to perform her household duties, such as washing, cooking, baking, etc., and the objection -to this charge was that the jury would understand from the language that she had a right to recover for these things.

This objection would be well taken if there was no limitation or explanation in the charge of this language, but the court *404following this language limits the recovery to her pain and suffering and the disability inflicted upon her in the sense of affecting her ability to be up and about and to care for herself. The court by this part of the charge limits full compensation to her personal rights and the jury could not misunderstand the charge.

It is further urged that the court erred in the charge in regard to the care the *railway company*owned to Mrs. Gorz. After saying to the jury that this lady was not a passenger, but that the railway company owed a duty towards people who came for the purpose of assisting their friends, who had children or baggage, in getting on the car, and that that duty was not the high degree of care owed to passengers hut ordinary care, the court used the following language:

‘ ‘ In other words, while they did not know that she was there, yet the law assumes that'knowing that she had a legal right to be there the same as their passengers had to he there, although in fact they did not know it, they were bound to exercise every such reasonable precaution for her protection in the situation such as an ordinarily prudent person or corporation ordinarily would, considering "all of the situation and surroundings.”

Mrs. Gorz had a right to go out on the street with her daughter and child', who were intending to become passengers on this ear. The street ear company, and others using the street, must exercise ordinary care not to injure her. But, if she had remained on the street her injuries would not have occurred. It was only when she entered or placed her body within the car of the railway company that she received her injury. She did not enter this car to become a passenger, but to place therein this child who would become a passenger by reason of its mother being a passenger.

The testimony does not disclose that there was any rule of the company or any custom permitting persons to enter the car, when stopped to receive passengers, for the purpose of assisting passengers who might have either children or baggage, or that it was necessary for Mrs. Gorz to assist her daughter to enter the car by placing this child upon the platform. What *405she did was only for her own or Mrs. Pritchard's convenience.

When Mrs. Gorz entered this ear as she did, and under these circumstances, the railway company was not required to exercise towards her the degree of care required of it towards its passengers, but it owed her the duty of ordinary care after it was aware of her presence within the car. 3 Thompson on Negligence, Section 2658; 2 Hutchinson on Carriers, Section 997.

The real question in this case to be determined is the obligation resting upon the railway company to ascertain and know when a person not intending to become a passenger is within their car. ‘There is no testimony that the conductor or ■anyone in the railway company’s employ knew of Mrs. Gorz’s • presence within the ear, or that she was in such a position that the starting of the car would injure her.

It was the conductor’s duty to stop the car a sufficient length of time to discharge and receive passengers; but in the absence of a practice acquiesced in by the railway company permitting persons who did not intend to become passengers to enter the ear in order to give assistance to others who did, the railway company' did not owe the duty of detaining its car to allow such persons to withdraw therefrom, unless it knew of their presence therein. Neither was it required to know that all persons, other than passengers, had left the car before starting it. The obligation of the raiway company to others than passengers who might be within the car is not an absolute duty but a relative duty, and arises when those in charge of the car know of the presence of such person, or in the exercise of ordinary care should know of their presence. *St. Louis & San Francisco R. W. Co.*v. *Lee,*46 L. R. A. (N.S.), 357; *Hill, Admr.,*v. *L. & N. R. R. Co.,*124 Ga., 243; 3 L. R A. (N.S.), 432; *Morrow*v. *Atlantic, etc., R. W. Co.,*44 S. E., 12; *Berry*v. *L. & N. R. R. Co.,*60 S. W., 699.

The conductor or those in charge of an electric street car are not required, when the car stops to discharge and receive, passengers, to ascertain before starting if persons not intending to become passengers have entered the ear, or have placed them*406selves on the steps of the car in such a position that they may be injured by the starting of the ear, but they are chargeable with what they know and with whatever they should see and know in the proper discharge of their duties in operating the car. *R. W. Co.*v. *Kessler,*66 O. S., 326.

The court in its charge in the case at bar said that:

“While they did not know that she was there, yet the law assumes that knowing that she had a legal right to be there the same as their passengers had to be there, although in fact they did not know it”—

they were bound to exercise ordinary care.

By this charge the court said to the jury that Mrs. Gorz had a legal right to enter this car, to set the child on the platform, and that the railway company was bound in law to know that she was there although they in fact did not know it. 'This would require an electric street ear company to know that everyone who did not intend to become a passenger had withdrawn from their car before they could safely start it, and is placing a greater burden upon the company with regard to third parsons than is required with regard to their passengers.

If the conductor knew, or in the exercise of ordinary care should have known, that Mrs. Gorz was , within the car placing the child on the platform, he would be required to exercise ordinary care towards her, and in the exercise at that degree of care he should have delayed starting the ear until she could withdraw therefrom.

We think that the giving of this instruction was error which requires a reversal of the case. We find no other errors in the record.

Exceptions noted.

Metcalfe, J.,- and Fakr, J., concur.