I am of the opinion that the testimony does not justify the majority's conclusion that the appellee was guilty of contributory negligence, as a matter of law. The only testimony regarding the manner of her alighting from the car was that of the appellee herself, and it is as follows:
"Q. How were you holding your baggage? A. Well, I had my overnight bag in my right hand, and my purse and other bag (knitting bag) under my left arm and I was holding to the rail with my left hand. * * *
"Q. Did you notice whether or not there was any footstool or anything else between the ground and the last step for you to step on? A. There wasn't any footstool, no. * * *
"Q. Then what happened? Did you try to step to the ground? A. Well, I just stepped and I fell to my hands and knees.
"Q. Do you know what caused you to fall there? A. Well, I don't know, I just didn't judge my distance. * * *
"Q. Were you watching where you were stepping? A. Yes, I certainly was. * * *
"Q. I understand, when you fell, you lost hold of everything? A. I held on until I fell. When I fell, of course, it was so high, naturally, when I fell, I dropped all my bags. *Page 82
"Q. You dropped all of your bags when you fell? A. Yes, sir. * * *
"Q. When you got to that last step, did you pause or did you just step right off? A. I kind of paused and looked down.
"Q. You paused and looked over the distance to the ground, did you? A. I thought I saw the distance. * * *
"Q. Did you turn loose of this handrail or grab-iron over here when you fell? A. Yes, sir, when I fell, I did."
The testimony amounts to this: The appellee, with an overnight bag in her right hand and her purse and knitting bag under her left arm, went down the car steps holding to the handrail with her left hand. Still holding to the rail, she stepped forward toward the ground and fell to her hands and knees. It is obvious that she held on to the rail until her body in falling pulled her away from it. There is nothing to indicate that holding the knitting bag and purse under her arm was the cause of her fall. She seemed to be extraordinarily careful. She paused and looked down and thought the distance was a little long, but believed she could negotiate it. The majority conclude that the distance was 17 inches or less.
The fact is she left the car exactly as the ordinary passenger leaves it. She held to the handrail and stepped down facing from the car, without turning her back or turning sideways. Passengers do not ordinarily turn sideways or step down backwards when descending from a car. If there had been a footstool on which to alight, she necessarily would have stepped "straight forward." Her negligence it seems, from the majority opinion, was in her act of stepping "straight forward" and in not letting "herself down while retaining a hold on the handrail." Her testimony shows that she held to the hand rail until she fell.
If she did "deliberately step straight forward from the coach," but was exercising the care that passengers ordinarily use under similar circumstances, she was not guilty of negligence; and whether she did or not was for the jury to say. This court should not say as a matter of law that appellee was guilty of contributory negligence.
The conclusion of the majority renders it useless for me to consider the question of appellant's negligence. *Page 83