McBRIDE v. ATCHISON RY CO (1954)

From a judgment of nonsuit in an action to recover damages for personal injuries resulting from plaintiff's falling upon the steps of one of defendants' cars, plaintiff appeals.

Facts: On June 1, 1949, plaintiff was a passenger for hire in a pullman car on the Grand Canyon line of defendants. The train was bound from Los Angeles to points east. Plaintiff, who was using crutches, got on the train at Fullerton, California and rode to Needles. At Needles, as he was alighting from the train, his crutch came in contact with a wet cigar butt, causing his crutch to slip, throwing him to the ground as a result of which he suffered personal injuries. The porter was standing near the steps, but did not assist plaintiff in leaving the train.

This is the sole question presented for determination:

Did the foregoing facts constitute a prima facie case of negligence by the defendants?

No. (1) There is no merit in plaintiff's contention that defendants were negligent because the porter failed to assist plaintiff to descend from the train. The complaint in paragraph IV alleges that ‘* * * the defendants and each of them negligently, carelessly and recklessly operated, maintained and controlled the train and coach then and there under their control * * *’

There is nothing in the complaint which charged the porter with negligently failing to assist plaintiff. Plaintiff can recover only after proof of one or more of the acts or omission alleged in the complaint. (McKeon v. Lissner, 193 Cal. 297, 304[4], 223 P. 965.)

Therefore, since plaintiff did not charge (in his complaint) that the porter was negligent he may not claim the actions of the porter mentioned above as supporting his cause of action.

(2) There is a total absence of any evidence as to how the wet cigar came to be on the steps of the pullman car. There is no showing that defendants or any of their employees placed it upon the steps, nor is there any evidence to disclose how long it had been upon the step so as to constitute constructive notice to defendants of the dangerous condition of the step.

Although the statute imposes the highest degree of care of a passenger for hire it does not constitute the carrier an insurer, and wherever injury results from something over which the carrier has not exclusive control, the rule is ordinary care. (Robson v. Union Pac. R. Co., 70 Cal.App.2d 759, 761 [2], 161 P.2d 821; Heck v. Northern Pac. Ry. Co., 59 Mont. 106, 196 P. 521, 522. Cf. Terrell v. Key System, 69 Cal.App.2d 682, 686, 159 P.2d 704; Prunty v. Allred, 73 Cal.App.2d 67, 71, 165 P.2d 935.)

In order to recover against a carrier for injuries sustained due to the presence of debris or other foreign substance upon the steps of its car, it is essential to show knowledge either express or implied upon the part of the carrier of the existence of such condition. (Robson v. Union Pac. R. Co., supra; Gold v. Arizona Realty, etc., Co., 12 Cal.App.2d 676, 677, 55 P.2d 1254; Girvetz v. Boys' Market, Inc., 91 Cal.App.2d 827, 829, 206 P.2d 6; see also cases cited, 10 Am.Jur. (1937) Carriers, sec. 1394, p. 236; Louisville & N. R. Co. v. O'Brien, 163 Ky. 538, 174 S.W. 31, 34; Hotenbrink v. Boston Elevated Ry. Co., 211 Mass. 77, 97 N.E. 624, 39 L.R.A., N.S., 419.)

In view of the fact that plaintiff failed to show any act of negligence upon the part of either of the defendants the trial court properly granted the motion for a nonsuit.

Affirmed.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.