
    Cincinnati Street Ry. Co. v. Mueller.
    (Decided September 16, 1935.)
    
      Messrs. BeCamp, Sutphin & Brumleve, for plaintiff in error.
    
      
      Messrs. Hall, Gastellini, Frey é Jackson, for defend- • ant in error.
   Ross, P. J.

This is a proceeding in error from the Court of Common Pleas of Hamilton county, wherein judgment was rendered for the plaintiff, Marie Mueller, consistent with the general verdict of a jury. The parties will be referred to as they were designated in the trial court.

The plaintiff, a passenger upon one of the street cars of the defendant Cincinnati Street Railway Company, claimed in the petition that she was injured when permitted to alight at a place between regular car stops, at which time she fell into a ditch along the right of way. She alleges in her petition that the defendant carelessly and negligently ran the car beyond the regular car stop, although she signaled the employees of the defendant to permit her to leave the car at such stop. She says that by reason of weeds and grasses, permitted by defendant to grow along the right of way, it was impossible for plaintiff to see the deep depression into which she fell,'and that the defendant was negligent in bringing the car to a stop at such a place and in failing to warn the plaintiff of the danger in alighting at this place.

The answer was a general denial, coupled with a claim that the injuries, if any, of plaintiff, were caused by her sole negligence.

At the outset of the trial the defendant admitted ownership, control, and maintenance of the right of way where the injuries were received by plaintiff.

It appears from the evidence that at about 7:00 p. m., on April 18, 1932, the plaintiff, who was 79 years old, was a passenger upon one of the street cars of the defendant proceeding westwardly from Cincinnati to Delhi; that it was her intention to leave the street car at Stop No. 9, in Delhi; that the car came to a stop at Stop No. 9, a regular place for passengers to leave the car, which stop was provided with, a level platform; that the plaintiff was slow in gathering her packages and the other passengers left the car before she was able to leave her seat; that the car started and had proceeded a car length or two, when, in response to her request, the motorman, the sole employee in charge of the car, again stopped the car; that the motorman asked the plaintiff if she wished to get off “here” and she nodded her head, and that the motorman then helped her to alight. The plaintiff denies that any conversation took place between her and the motorman, and she states that he remained seated even after she had fallen in the ditch. It appears further that she stepped from the car step, took a step or two, and fell into a depression, the center of which was some three or four feet from the nearest car rail. The depression or ditch at its deepest place was some 18 inches deep and was filled with green weeds, whose tops reached the level of the ties upon which the car rails rested. The plaintiff was severely injured.

It is claimed by the defendant that its employees were not negligent in any way.

If, under the facts stated, the defendant through its employees failed to exercise the highest degree of care which a prudent person would exercise under similar circumstances, then the jury was justified in its conclusion adverse to the defendant.

The carrier owes a duty not only to exercise the highest degree of care for the safety of its passengers while on the vehicle, but also the highest degree of care in providing a safe place for such passengers to alight from the vehicle. In the case of Mahoning & Shenango Ry. & Light Co. v. Leedy, 104 Ohio St., 487, 136 N. E., 198, the court in its opinion, states at page 493:

“ It is the duty of the carrier not only to carry the passenger safely, but to allow her to alight from the ear in safety, and where the carrier has itself created a dangerous situation the obligation devolves upon it before discharging a passenger into such situation to either remove the additional danger or warn the passenger of its existence.”

See, also, Poehl v. Cincinnati Traction Co., 20 Ohio App., 148, at 152, 151 N. E., 806; Cleveland Ry. Co. v. Ranft, Admr., 12 Ohio App., 397; Cleveland Ry. Co. v. Arrison, 26 Ohio App., 359, 159 N. E., 580; and 38 Ohio Jurisprudence, 162.

Obviously the place at which the car was stopped was not a safe place for the plaintiff to alight; certainly not for one of her sex and age. The employee had three courses open to him.' He could have caused the car to return to Stop No. 9, which had just been passed, and which was only a few feet away; he could have proceeded on to the next stop; or, he could do as he did, permit the passenger to alight between regularly prepared stops. It was a question for the jury to say whether the employee used the highest degree of care in permitting the plaintiff to alight at a place which was unsafe. The fact that the employees of the defendant must have been aware of this condition is plainly evident. Its cars passed this point at all seasons of the year. The weeds in the ditch were green, and had grown some 18 inches in height. It was not necessary that the particular employee involved in this case must have had knowledge of the condition, if the company had such knowledge through any employee whose duties were connected with the right of way, its maintenance and condition.

What has been said answers the complaint of the defendant that the court refused to give certain special charges in which the element of care, heretofore noted, was entirely omitted.

In conclusion, it may be added that it is clear that passengers of different sexes, ages,'health, and physical ability will naturally require the exercise of appropriate care upon the part of the employees of the carriers, and what would be a proper exercise of the appropriate degree of care in one case may be gross negligence in another. The adjustment of the rule of negligence to the circumstances involved in each case must be for the jury under proper instructions from the court.

The carrier not only owes a duty to provide safe places for passengers to alight at permanent stops, but at such unusual places as it may permit passengers to alight. When the carrier in the exercise of its discretion voluntarily permits the passengers to alight, it automatically brings itself within the rule.

We cannot find just cause to interfere with the verdict of the jury under the facts, and, therefore, in view of the law applicable, the judgment is affirmed.

Judgment affirmed.

Matthews and Hamilton, JJ., concur.  