(109 Neb. 356, 191 N. W. 327.) R. Co. 201 Mass. 114, 20 L.R.A. (N.S.) 1063, 131 Am. St. Rep. 392, 87 N. E. 488; Toledo Consol. Street R. Co. v. Fuller, 9 Ohio C. D. 123; Rosenberg v. Third Ave. R. Co. 47 App. Div. 323, 61 N. Y. Supp. 1052; Rose v. Boston & N. Street R. Co. 194 Mass. 415, 80 N. E. 580; Miller v. Brooklyn Heights R. Co. 124 App. Div. 537, 108 N. Y. Supp. 960; Grayson v. St. Louis Transit Co. 100 Mo. App. 60, 71 S. W. 730. Mr. John Lee Webster, for appellee: When the car was stopped at a regalar stopping place at the instance of Miss Jensen at the end of her journey, to permit her to alight, and when she stepped from the car into the street, the relation of passenger and carrier terminated, and the company was not required to see that she had safe passage to, or should not be injured by passing vehicles when traveling from the street car to, the sidewalk. Powers v. Connecticut Co. 82 Conn. 665, 26 L.R.A. (N.S.) 405, 74 Atl. 931; Creamer v. West End Street R. Co. 156 Mass. 320, 16 L.R.A. 490, 32 Am. St. Rep. 456, 31 N. E. 391; Indianapolis Street R. Co. v. Tenner, 32 Ind. App. 311, 67 N. E. 1044; Welsh v. Spokane & I. E. R. Co. 91 Wash. 260, L.R.A.1916F, 484, 157 Pac. 679; Gargan v. West End Street R. Co. 176 Mass. 106, 49 L.R.A. 421, 79 Am. St. Rep. 298, 57 N. E. 217; Conroy v. Boston Elev. R. Co. 188 Mass. 411, 74 N. E. 672; Chesley v. Waterloo, C. F. & N. R. Co. 188 Iowa, 1004, 12 A.L.R. 1366, 176 N. W. 961; Farrington v. Boston Elev. R. Co. 202 Mass. 315, 88 N. E. 578; Keator v. Scranton Traction Co. 191 Pa. 102, 44 L.R.A. 546, 71 Am. St. Rep. 758, 43 Atl. 86, 44 W. N. C. 128, 6 Am. Neg. Rep. 187; Haskins v. St. Louis & S. R. Co. 193 Ill. App. 437; Chattanooga Electric R. Co. v. Boddy, 105 Tenn. 666, 51 L.R.A. 885, 58 S. W. 646, 8 Am. Neg. Rep. 555; Hammett v. Birmingham R. Light & P. Co. 202 Ala. 520, 81 So. 22; Smith v. City & Suburban R. Co. 29 Or. 539, 46 Pac. 136, 780; Gannaway v. Puget Sound Traction, Light & P. Co. 77 Wash. 655, 138 Pac. 267; Oddy v. West End Street R. Co. 178 Mass. 341, 86 Am. St. Rep. 481, 59 N. E. 1026; Loggins v. Southern Pub. Utilities Co. 181 N. C. 221, 106 S. E. 822; Wood v. North Carolina Pub. Serv. Corp. 174 N. C. 697, 1 A.L.R. 942, 94 S. E. 459. The fact that Miss Jensen, after she had alighted from the street car, was struck by a motorcycle ridden at a reckless rate of speed, over which con the defendant company had no trol, does not present a case of actionable negligence against the defendant company. Chesley v. Waterloo, C. F. & N. R. Co. 188 Iowa, 1004, 12 A.L.R. 1366, 176 N. W. 961; Oddy v. West End Street R. Co. 178 Mass. 341, 86 Am. St. Rep. 481, 59 N. E. 1026; Farrington v. Boston Elev. R. Co. 202 Mass. 315, 88 N. E. 578; Hammett v. Birmingham R. Light & P. Co. 202 Ala. 520, 81 So. 22; Chattanooga Electric R. Co. v. Boddy, 105 Tenn. 666, 51 L.R.A. 885, 58 S. W. 646, 8 Am. Neg. Rep. 555; Keator v. Scranton Traction Co. 191 Pa. 102, 44 L.R.A. 546, 71 Am. St. Rep. 758, 43 Atl. 86, 44 W. N. C. 128, 6 Am. Neg. Rep. 187; Duchemin v. Boston Elev. R. Co. 186 Mass. 353, 66 L.R.A. 980, 104 Am. St. Rep. 580, 71 N. E. 780, 1 Ann. Cas. 603, 17 Am. Neg. Rep. 61. Flansburg, J., delivered the opinion of the court: This was an action brought by plaintiff as administrator of the estate of Anna Pauline Jensen, deceased, to recover damages from the defendant, Omaha & Council Bluffs Street Railway Company, on the charge that the defendant company had, through its negligence, caused the death of plaintiff's intestate while, it is claimed, she sustained the relation to it of a passenger. The deceased sustained the injuries, of which she died, from a motorcycle which passed the defendant's street car and struck her immediately after she had alighted in the street, at the termination of her journey. The defendant contends, first, that it was guilty of no negligence; and second, that at the time the accident happened the relation of carrier and passenger had ceased to exist, and that the company owed the deceased no duty of protection from passing vehicles. The trial court directed a verdict in favor of the defendant, and from a judgment on that verdict the plaintiff appeals. There is testimony in behalf of the plaintiff to show the following. facts: Anna Pauline Jensen, a young woman, was a passenger on a street car operated by the defendant company. The car was proceeding south on Thirteenth street in the city of Omaha. A signal was given for the car to stop at a street intersection, a regular stopping place. Miss Jensen went forward to the front end of the car, stepped down into the front vestibule, and, as soon as the car stopped and the door opened, she stepped on down into the street. She was immediately followed by another passenger who stepped down close behind or beside her and was in the street at the time of the accident. As Miss Jensen descended from the car, she took one long step out onto the pavement, and was just in the act of swinging her other foot forward, to take another step, when she was struck by a motorcycle which was just then passing close to the car at a great speed. The motorman of the street car did not see the motorcycle until after the accident had happened. Though by looking in a small mirror, so arranged that he had a view of the outside of the car and of the rear entrance, it may have been that, had he looked for it, he could have seen the motorcycle as it approached. The conductor, however, stationed at the rear end of the car, had noticed the man on the motorcycle when he was some two blocks distant behind the car, and had remarked to the passengers near him that the man was approaching at a high speed. Different witnesses fixed the speed of the motorcyclist at from 40 to 60 miles an hour, and the motorcyclist himself testified that he passed the car at the rate of 42 miles an hour and probably not more than 2 feet distant from it. He was engaged at that time in the police service of the city of Omaha, and was attempting to overtake a speeding automobile. Plaintiff contends that the street railway company was negligent in having failed to discover and to warn Miss Jensen of the approaching vehicle. The defendant, on the other hand, contends that it was not the duty of the street railway company to watch for such vehicles; that those were obvious dangers, at all times more or less present upon the street, and dangers which the passenger must himself take notice of. The defendant further urges that at the first moment Miss Jensen stood upon the pavement, after descending from the car, she ceased to be a passenger, and that from that instant, whatever may have happened to her, the company can be held to no responsibility growing out of any duty it owed her as a carrier. A long list of cases is cited by the defendant to show that a person alighting from a street car ceases to be a passenger after he alights and moves away from the place of his landing. Chesley v. Waterloo, C. F. & N. R. Co. 188 Iowa, 1004, 12 A.L.R. 1366, 176 N. W. 961; Hammett v. Birmingham R. Light & P. Co. 202 Ala. 520, 81 So. 22; Morris v. Omaha & C. B. Street R. Co. 193 Iowa, 616, 187 N. W. 510; Creamer v. West End Street R. Co. 156 Mass. 320, 16 L.R.A. 490, 32 Am. St. Rep. 456, 31 N. E. 391; Powers v. Connecticut Co. 82 Conn. 665, 26 L.R.A. (N.S.) 405, 74 Atl. 931; Conroy v. Boston Elev. R. Co. 188 Mass. 411, 74 N. E. 672; Haskins v. St. Louis & S. R. Co. 193 Ill. App. 437; Chattnaooga Electric R. Co. v. Boddy, 105 Tenn. 666, 51 L.R.A. 885, 58 S. W. 646, 8 Am. Neg. Rep. 555; Smith v. City & Suburban R. Co. 29 Or. 539, 46 Pac. 136, 780. Though in some of those cases it is stated as a rule that a person ceases to be a passenger the moment he alights upon the street, yet in no case cited was the person injured at that moment nor immediately afterward, at the place where he had alighted. In each of the cases he had taken his way from that spot, and was injured upon the street after he had left the car and when, without question, he had become a pedestrian, entirely beyond the control of the carrier. In those cases, therefore, it did not become necessary to determine the exact instant when a person alighting from a street car would cease to be a passenger. Whether or not a person in the act of alighting, or who had (109 Neb. 356, 191 N. W. 327.) alighted and had been injured immediately and before he had had an opportunity to move away from the spot, had ceased to be a passenger, was not in question nor passed upon. In some of those cases (Chesley v. Waterloo, C. F. & N. R. Co.; Hammett v. Birmingham R. Light & P. Co.; Creamer v. West End Street R. Co.; Chattanooga Electric R. Co. v. Boddy, and Smith v. City & Suburban R. Co.) it is stated generally that a street railway company is not obliged to warn passengers, about to alight from the car, as to the danger they may encounter from passing vehicles. Obviously, however, in these particular decisions the danger from passing vehicles, against which it is said the company is not required to warn its passengers, was a danger which the passenger was to encounter after he had descended from the car and moved away, and at a time when the relation of carrier and passenger would unquestionably have been terminated. These decisions do hold that the company Carrier-duty to passenger after need not warn its passengers as to those dangers which the passenger may encounter after the relation of carrier and passenger has terminated, yet they do not directly pass upon the question of whether or not the company must keep a lookout and warn passengers of the danger from vehicles that he may encounter while in the act of alighting, or at the very spot where he shall alight, upon the street, and before the relation of carrier and passenger had ceased. During that period, when a passenger is alighting from the car and until after he has ceased to be a passenger, the company owes him certain duties and obligations, to the end that it may furnish him a safe delivery at his destination. Whether or not, in the performance of those duties, it must warn and guard him against the danger from passing vehicles, is the precise question here to be determined, and which is not, as we view it, entirely solved by any of the decisions above alighting. mentioned, though some of the general statements made would seem broad enough to cover it. In the case of Hammett v. Birmingham R. Light & P. Co. 202 Ala. 520, 81 So. 22, as an instance, the court announced as a general rule that "it is the duty of a street railroad carrier to provide a reasonably safe place for the landing of its passengers," and "the rule as to providing safe place for alighting has no reference to independent agencies operating in the street, such as a motorcycle." We are unable to agree with the contention that the company owed Miss Jensen no duty, for the reason that, at the time of the accident, she was no longer a passenger. We do not believe the rule is quite so strict as to hold that a person who has taken passage on a street car ceases to when relation be a passenger at terminates. the moment, upon reaching his destination, that his feet touch the pavement in the act of alighting. It is a conceded rule that the company must exercise care in selecting the place for the passenger to alight, since that is a part of the obligation of transportation which the street railway company has assumed. If there are defects or obstructions in the street, it must avoid them, if it reasonably can, and select landing places where the condition of the street is free from those dangers. If there are dangers in the condition of the street at the place of alighting, known to the company, and not known to the passenger, it is its duty to warn the passenger as against those dangers. Where a passenger has alighted upon the street, the company still owes him protection at that place, as against the act of its employees or the movement of its car. Johnson v. Washington Water Power Co. 62 Wash. 619, 114 Pac. 453; Virginia Trust Co. v. Raymond, 120 Va. 674, 91 S. E. 613, 16 N. C. C. A. 503; Houston v. Lynchburg Traction & Light Co. 119 Va. 136, 89 S. E. 114. If such a person is, in any sense, a passen ger at the place where he alights upon the street; if the company at that time owes him any obligation of protection, either as against its own negligence or otherwise, by reason of his relation to it, then, of course, he is a passenger in all respects. So long as the relation continues, the company owes him every obligation that springs from that relation. The plaintiff relies upon the case of Wood v. North Carolina Pub. Serv. Corp. 174 N. C. 697, 1 A.L.R. 942, 94 S. E. 459. In that case it was held that a passenger who was struck by a passing vehicle immediately after he had alighted upon the street did, at the time of the accident, retain his character as a passenger, and that the company owed him a duty of protection. Since the relation of carrier and passenger was found to exist, the court concluded that the company had owed him the duty of watching for and warning him against the danger from passing vehicles. We do not believe that that conclusion necessarily follows from the mere fact of the relation of carrier and passenger. In the case of Loggins v. Southern Pub. Utilities Co. 181 N. C. 221, 106 S. E. 822, the court carried the principle, established in the Wood Case, one step farther; for in the Loggins Case the person had alighted from the street car, and had stepped away from the place of alighting and was struck by a passing vehicle as he was making his way across the street to the curbing, at a time, we believe, when the relation of carrier and passenger had ceased to exist. The Loggins Case is clearly in conflict with the numerous decisions which we have above cited. In both of the decisions by the North Carolina court there were strong dissenting opinions. Though Miss Jensen may have still retained her character as a passenger at the time she was struck by the motorcycle, it does not follow that the company was an insurer as to her safety. The company, it is true, is bound to exercise the utmost skill, diligence, and foresight, consistent with the practical conduct of the business in which it is engaged, but it is not bound to do everything that can possibly be done to insure the safety of passengers. Bevard v. Lincoln Traction Co. 74 Neb. 802, S L.R.A. (N.S.) 318, 105 N. W. 635, 19 Am. Neg. Rep. 366; Omaha Street R. Co. v. Boesen, 74 Neb. 764, 4 L.R.A. (N.S.) 122, 105 N. W. 303, 19 Am. Neg. Rep. 358. Were it to take every possible precaution conceivable for the safety of its passengers, and were they allowed to depend entirely upon the precaution taken by the company, the company would be so engrossed with the care of its passengers and the protection of itself against liability that its practical performance as a transportation company would be seriously impaired. A street railway company is compelled to deliver its passengers upon the public streets. It cannot control nor secure absolute safety as to its landing places. The street is not under its control, and its right to operate vehicles on the street is not paramount to the rights of other persons to do the same thing. It has no control over the condition of the roadway, nor can it control the traffic. The question here is not, as we view it, to be determined by the fact of whether or not Miss Jensen retained her character as a passenger, but, rather, what was the extent of the company's obligation toward her as a passenger, at the time and under the circumstances in question. The duty which the company owed her as a passenger while she was upon the street was necessarily much more limited than the duty it owed her while she was in the car. As said in the lower court's opinion in the case of Keator v. Scranton Traction Co. 191 Pa. 102, 105, 44 L.R.A. 546, 71 Am. St. Rep. 758, 43 Atl. 86, 44 W. N. C. 128, 6 Am. Neg. Rep. 187: "Of course, the defendant's duty of protection was much (109 Neb. 356, 191 N. W. 327.) less while she was upon the street than while she was in the car. As long as she was upon the street, the defendant was not bound to protect her against assault or injury at the hands of other persons. It had no control over the highway, outside of its rails, nor any right to interfere with persons pursuing their avocations on the street, either upon foot or otherwise. Having no right of control, it owed her no duty of protection against strangers; but upon what ground had the defendant ceased to owe the plaintiff protection as a passenger against its own conduct?" The appellate court in that case added (191 Pa. 112, 44 L.R.A. 546, 71 Am. St. Rep. 758, 43 Atl. 88, 44 W. N. C. 128, 6 Am. Neg. Rep. 187): "Unquestionably, the carrier is not answerable for the condition of the highway on which the passenger alights, or from which he stands or steps before entering the car; nor is it answerable for the conduct of third persons who, by neglect, cause injury in such situation to the passenger." In the case of Farrington v. Boston Elev. R. Co. 202 Mass. 315, 88 N. E. 578, the company stopped its car at a place where there was a curbstone on the street at the place where the passenger was given an opportunity to alight. By reason of the irregularity in the surface of the street, the place was one of more or less difficulty as a place for landing passengers. However, the danger was inherent in the street and one which was obvious to any person who looked. The court stated that, where a street is temporarily defective and a passenger alighting is apt to step on the defect, the street railway company may be held to reasonable care either by way of warning or otherwise, but where there is nothing in the appearance of the passenger to indicate to the conductor that she has not ordinary capacity to care for herself, or that it would be more dangerous for her to alight than for other persons, the company has a right to assume that she knows generally of the danger, and the court stated that any other rule would impose upon the defendant a burden at once unreasonable and practically impossible of performance. In a somewhat similar case, Scanlon V. Philadelphia Rapid Transit Co. 208 Pa. 195, 57 Atl. 521, the surface of the street at the point where the passenger was allowed to alight was of an irregular character, requiring of the passenger a long step. The passenger alighting at this place was injured, and the court said (p. 197): "The car was running upon the public highway, over which it must be remembered the defendant company has no control. In laying its tracks it must conform to the established grade. It can neither construct nor alter any of the places at which passengers are to step on or off its cars. It is obliged to place its tracks and run its cars where the public authorities direct. The contour of the surface of the street. and the sides and gutters, are all fixed by the municipal authorities. Passengers leaving the cars must step upon the surface of the street in the condition in which it is placed by the city, which fixes and maintains the grades. Obviously, the rules which might well and reasonably apply to steam railroads owning their own right of way, and having complete control of the approaches thereto, cannot reasonably be applied to street railways, which have not the right of eminent domain, and are only allowed the use of the public highways in common with other vehicles. It may be that. in this case the conductor misunderstood the signal of the plaintiff, and stopped the car sooner than she wished; but, if so, she had only to signify that fact, and retain her seat, and be carried to the desired. spot. She was under no compulsion, nor did she receive even a suggestion from the conductor, as to where she should get off. That was a mat |