
    BOARDING A CAR IN MOTION.
    Circuit Court of Richland County.
    The Ohio Central Traction Co. v. H. Walter Mateer. 
    
    Decided, September 8, 1908.
    
      Negligence — In Attempting to Board a Car which was Still in Motion_ Judgment not Sustained by the Evidence,
    A judgment for damages in favor of an intending passenger, who was injured in an attempt to board a car, is not supported by the evidence, where it appears that the attempt to board the car was made and the injury occurred before the car had been brought to a standstill.
    
      Cummings, McBride & Wolfe, for plaintiff in error.
    
      Brucker & Cummins, contra.
    Taggart, J.; Donahue, J., and Craine, J., concur.
    
      
       Affirmed by the Supreme Court without report, Mateer v. Ohio Central Traction Co,, 81 Ohio State.
    
   The plaintiff filed his petition in the court of common pleas, alleging in substance that on the 13th day of October,-1903, the defendant operated and controlled an electric railroad, -running from the city of Bucyrus to the city of Mansfield; that along its way and a few miles from Mansfield, there was a platform used by the defendant for passengers desiring to get off and on the defendant’s cars; that on the 13th day of October, 1903, at about 7 a. m., the plaintiff went to this platform for the purpose of boarding one of defendant’s cars on its way to Mansfield ; that when the plaintiff saw the ear coming, he signaled the motorman to stop; that the motorman saw the plaintiff standing upon the.platform and slackened the speed of his car, and that when the rear end of the car reached the platform the brake was on. and the car moving slowly and apparently about to stop, and that the plaintiff, believing that the ear would stop, took hold of the handles on the rear- of the car and was about to step on, when the motorman so negligently and carelessly operated said car that it gave ft sudden jerk and started ahead rapidly, thereby throwing the plaintiff off of the platform and on to the ground, and injured him to his damage in the sum of $10,000.

To this petition an answer was filed, practically admitting all the averments in the petition, excepting that it denied any negligence or carelessness on the part of the defendant or the motorman operating the car, or that the ear was suddenly started forward or jerked, and denying that the plaintiff was injured to the extent claimed in the petition. The answer also alleges contributory negligence on the part of the plaintiff.

A reply was filed in which each and every allegation in the answer was denied. A verdict was returned in favor of the plaintiff. A motion for a new trial was overruled and judgment rendered on the verdict.

A petition in error was filed in this court, and on a former hearing the judgment of the court of common pleas was reversed, for the reason that the court of common pleas erred in overruling the defendant’s motion made at the close of plaintiff’s evidence to direct the jury to retuín a verdict for the defendant. Thereupon error was prosecuted to the Supreme Court, which reversed the circuit court and remanded the case, for the reason that this court erred in reversing the common pleas for refusing to direct a verdict, the holding of the Supreme Court being to the effect that where a motion is overruled- at the end of plaintiff’s evidence, and the defendant thereafter introduces evidence in the case, the court must look to all the evidence,in the case for the purpose of determining whether or not a ease had-been made, which would justify the court below in submitting it to the jury.

This case is now back to this court for the purpose of determining whether or not, taking all of the evidence, there was a. case made against the defendant. We have examined all of the evidence presented in the bill of exceptions, and find no testimony offered in defendant’s behalf which supported or tended to support the allegations of plaintiff’s petition.

On the question of liability, practically the only difference between the plaintiff and the defendant was as to whether or not the motorman was careless and negligent in jerking the car or starting it suddenly forward whilst the plaintiff was getting on.

.The. .testimony in behalf of the plaintiff was to the effect that the motorman was -trying to stop -the car and had not succeeded in doing so, and that the car was running very slowly and that just as he was about to step on the car and after he had taken hold of the handles of the car, the -car started suddenly forward with a jerk. The testimony of defendant’s witnesses is to the effect that the car was running at probably four or five miles an hour when the plaintiff attempted to get on it; that the rails Avere slippery and the motorman was doing all he could to stop the car.

If the contention of the defendant is correct, there certainly could be no liability, and if the' contention of the plaintiff is correct, then likewise there can be no recovery. It Avas the'duty of the defendant to stop its car to alloAv passengers to get on and off, and no passenger is required to get on or off a car AAdiilst it is in motion and if a passenger attempts to get off or on a car AAdiilst in motion, he does so at his peril.

If the plaintiff can recover, it must be by reason of the violation of. some duty owing by the defendant to the plaintiff. The motorman had a right to run that ear and jerk it as he pleased, so far as the plaintiff was concerned, so long as-the plaintiff Avas not a passenger' on that car. Of course if the motorman kneAV that the plaintiff was attempting to get on the car whilst in motion, or by the exercise of ordinary care could have known the same, or if it had been the custom of the plaintiff to board the car whilst in motion and the motorman knew that, then the defendant would owe the plaintiff a duty and would have to exercise such care in the operation of his car as not to injure the plaintiff.

We think that in this case where the plaintiff having undertaken to get on the car whilst in motion, and whilst the motorman was attempting to stop the ear, the plaintiff did so at his peril and can not recover from the company for any injury sustained to him.

We think that from the pleadings and evidence in this case the verdict is not sustained by any evidence and is contrary to law, and the judgment of the court of common pleas should be reversed and the petition of the plaintiff dismissed. The journal entry may be prepared in accordance with this holding and exceptions will be noted for the plaintiff.  