In his petition for a rehearing in the above-entitled cause the respondent complains that we have overlooked material points in the evidence and also that we have disregarded the findings of fact made by the trial court.
As to the first point it is urged that our former opinion assumed that the respondent stood on the sidewalk, or curb, as the street-car was rounding the curve and crossing the tracks on Market Street, whereas he states that there is some evidence that he was at that time standing on the safety zone in the street. We made no point in the conflict in the evidence in this respect, but treated the fact as entirely immaterial to the case. The point which we were discussing — the evidence of negligence on the part of the appellant — did not in any way depend upon the position of the respondent at the time the street-car was approaching this zone. It is also suggested that we relied upon the conflict in evidence as to whether this space was a safety zone, as that term is now used, and that we also intimated *Page 594 that the respondent was guilty of contributory negligence. Neither of these assertions is correct. In stating the evidence in the record we endeavored to give the entire story of the case in order to point out the entire evidence upon which the court's findings were based. We did not criticize or depart from any of the findings of fact made by the trial court. The point which we endeavored to stress was that the court did not find facts which charged the defendant with negligence as a matter of law.
To restate the proposition, the charge of negligence depended upon the diminishing of the speed of the street-car as aninvitation to the respondent to board the car and thereby become a passenger. The finding of the trial court in this respect was that the car was operated in a westerly direction on Market Street and then turned in a southerly direction across Market Street going south on Church Street; that "the motorman thereof diminished the speed of the street-car until the said car was almost at a standstill and negligently and carelessly gave no indication of his intention to proceed without stopping, but negligently and carelessly led the said plaintiff reasonably to believe that he intended to stop the said street-car at the aforesaid regular and customary stopping place." This finding is unintelligible without a reference to the evidence upon which it is based. By turning to the record we find that the evidence is that the motorman of the car commenced to diminish his speed as he began to take the turn on the northerly side of Market Street, and that he crossed the four tracks running easterly and westerly on Market Street and came into Church Street at a speed of three and one-half miles an hour, but that he did not over this distance of more than one hundred feet make any change in his rate of speed as he approached the station upon which the respondent was standing. That is to say, that the motorman diminished his speed when hebegan to take the turn across Market Street, and the finding that he did diminish the speed of the car does not mean anything more than this, as the point at which the motorman changed his speed was not found. Under the rule of the Davey case, which respondent treated as applicable here, it is necessary that the car must have slowed down sufficiently to indicate to the prospective passenger the acceptance of the motorman of his offer to become *Page 595 a passenger, that is to say, that one who has the control of or who is operating a car must do something by way of an invitation to one to board the car before the relation of passenger and carrier is created so as to render the carrier liable in damages under the passenger relation. All the evidence shows without conflict that there was no change in the rate of speed of the car while it was making the turn across the Market Street tracks, and that this rate was not less than three or four miles an hour. The court merely found that the motorman diminished the speed of the car as he approached the station and this is in harmony with the evidence. The evidence is that the car did not stop, but that it glided along and wentbeyond the mark and that then the respondent says: "I made a few strides and got on it." Thus, if the diminishing of the speed in taking the curve could be treated as an invitation to become a passenger, that invitation was withdrawn when the car passed the respondent at the station before he accepted it. It is not necessary for us to hold that he was guilty of contributory negligence in running after the car and in endeavoring to board it while in motion, but we do hold thatafter the car passed the mark the respondent was acting without invitation on appellant's part. Upon this showing we were satisfied that the case was, like the Ginnochio case, one in which the relation of passenger and carrier had not arisen.
The petition for rehearing is denied.
Langdon, P. J., and Sturtevant, J., concurred.
A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 12, 1925.
All the Justices concurred. *Page 596