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train at Conway junction, and it would be all right? The question of care is to be determined upon the state of things existing at the time. If the plaintiff's want of due care under the circumstances in which she was placed contributed to cause her injuries, the verdict should be for the defendant. Ii the plaintiff received injuries through the fault of the defendant, and without fault on her part, she was entitled to a verdict for damages. The defendant excepted to the charge as to the notice to Jefferson. The plaintiff had a verdict.
Russell & Boyer and W. L. Foster, for plaintiff.
ALLEN, J.-The motion for a nonsuit for want of evidence to charge the defendant was properly denied. The plaintiff
, without apparent fault of her own, was carried Plaintif had some distance-500 to 700 feet-beyond her destion assistance nation, to which she had a ticket, and there hur.
riedly assisted from the car to the ground, over
steps of which the lowest was 22 inches above the ground. The injury she received in leaping to the ground was aggravated by being compelled to walk from her landing place to the station. In the flustered state of her mind, and the fear of being carried beyond her destination, she did not notice the distance of the car step from the ground. She had a right to rely on the assistance offered by the conductor and brakeman at such a place and, if, they failed to assist her from the car without injury, the fault was the defendant's and not hers. However this may be, the question of her own negligence or want of care was fairly submitted to the jury, whose verdict, under the instructions, has left her free from fault. The case in principle is not different from Bullard v. Boston & M. R. Co., 64 N. H. 27, 27 Am. & Eng. R. Cas. 117, where the rear car, in which plaintiff was riding, did not reach the platform, and she was injured on leaving it by the steps, which were about three feet from the ground. The plaintiff recovered a verdict, and the court in the opinion decided that “these facts were evidence from which a jury might find that the plaintiff exercised due care in leaving the train at the place which she knew was a bad one for alighting, and, further, might find that the defendant intended she should leave at that place." In that case the car step was 14 inches further from the ground than in the present case, but the plaintiff had no assistance in alighting, and the distance from the station platform was very much less. The question of the reasonable care of the parties was the same in each case. The defendant's first exception is overruled.
The defendant requested the instruction that the plaintiff,
enfeebled as she was, should not have attempted to get off the car at the place she did, but should have notified the attendant train hands of her condition, that Plaintif not they might have set the train back to the station, suits or conwhere she could have alighted on the platform in negligenco. safety; that, no notice being given them of her feeble condition, she cannot recover. Such a request was properly refused. It left out of sight the fact that, at the time, the train had passed the station platform a long distance, and the step of the car, from which she must leap, was too high for a well person to step from safely. The request, too, leaves out of sight the flustered condition of the plaintiff's mind under fear of being carried beyond her destination, and the fact that, until she struck the ground, she was not aware that the car had passed beyond the station platform. The instruction which the court gave was sufficiently explicit. The jury were told “if the place (where the plaintift left the car) was suitable, and the defendant fully performed the duty it owed to the plaintiff, the defendant is not liable for any injury the plaintiff may have received.” “If the place was unsuitable, and the plaintiff received injury in consequence, the defendant is liable therefor, unless the plaintiff's want of care contributed to the injury. Was the plaintiff in fault for being left at that place, or for leaving the car without objection, or not saying anything about her feeble condition? Was she induced to alight there by the defendant's servants? Did her want of ordinary care contribute to her injury?" These pertinent instructions and inquiries made to the jury were plain and explicit, covered the ground of the case, contained the settled law on the subject, and were sufficiently favorable to the defendant. The exception to the refusal of the defendant's request is overruled.
A special exception was made to the instruction that, in determining the question of care exercised by the defendant and plaintiff
, the evidence that the plaintiff's husband informed Conductor Jefferson, at Rochester, that the plaintiff was feeble, and would need asssistance, and that Jefferson said he would notify the conductor who was to take the train at Conway junction, and it would be all right, and that the plaintiff's husband so informed her, is material. Knowledge communicated to Jefferson was notice to the defendant of the plaintiff's condition, and she was not required to notify every other conductor and train hand on the train. A conductor, who had charge of the train and the oversight of its passengers, was the proper person to whom a knowledge of the plaintiff's health and need of assistance in leaving the train should be given; and the plaintiff had a right to rely on
his assurance that he would inform the conductor beyond. The question was one of due and reasonable care. The plain. tiff relied, and had a right to rely, on Jefferson's giving his successor the information about her condition ; and, if the conductor failed to bring her condition to the notice of the conductor that followed him, his neglect would not be charged upon the plaintiff. The defendant was as much affected by Jefferson's knowledge as it would have been by the same facts communicated to the superintendent, or one of the directors of the road, in season to have made use of them. The detend. ant bad no reasonable ground of complaint on account of the instructions. Judgment on the verdict.
CLARK, J., did not sit. The others concurred.
Liability of Carrier for Injury to Passengers in Feeble Health.-See Owens v. Kansas City, St. Jo. & C. D. R. Co. (Mo.) 33 Am. & Eng. R. Cas. 524; Louisville, etc. R. Co. v. Fleming (Tenn.), 18 Ain. & Eng. R. Cas. 347, note 362; Atchison, etc. R. Co. v. Weber (Kan.), 21 Am. & Eng. R. Cas. 418.
Greater Duty to Female Than to Male Passenger.-While the duty of the carrier to all passengers is the same in degree, the amount of care may vary with the age, sex, or bodily infirmity of the passenger, and the car. rier is not entitled to a charge that it owes no greater duty to a female passenger than to a male one. St. Louis, A. & T. R, Co. v. Finley (Tex Dec. 12, 1890), 15 S. W. Rep. 266
Injury While Alighting from Car-Opinion of Witness as to cause of Accident. -In an action for injuries received while alighting from a railroad car, after the witness for the plaintiff has testified that he saw the plaintiff step from the car steps on to a box placed there for that purpose he can. not be asked on cross examination, whether it occurred to him at the time that the accident happened by reason of the darkness, or of the inattention of the plaintiff to the step being there. Kelley v. Detroit L. & M. R. Co., 80 Mich. 237.
Carrying Passenger Beyond Station-Stopping Car at Request of Passenger-Walking Back.-In Wilson v. New Orleans & N. E. R. Co. (Miss. Nov. 10, 1890), 8 so. Rep. 330, it appeared that a passenger on a train, after being carried beyond his station while asleep, was awakened, and at his request, the train was stopped that he might get off and walk back. While so walking, he narrowly escaped being run into by a freight train on a trestle. He was afterwards sick from the effects of the excitement. Held, that he had no redress against the company, though the conductor misled him as to the exact place where the train was when he got off.
Passenger Alighting on Wrong Side of Train-Violation of Rule-Contribuo tory Negligence.-In Drake v. Pennsylvania R. Co., 137 Pa. St. 352, it was held that when a passenger knows that on one side of the track no platform or place for alighting from trains has been provided, and that there is a safe and convenient platform, upon the other side, for the use of passengers in entering and leaving trains, such knowledge is notice of a rule of the company that passengers shall get on and off trains at said platform. When a railroad company has provided safe and convenient means of ingress and egress to and from its trains, upon one side of the track, it has in this particular discharged its whole duty to passengers, and it is not bound to anticipate that, in disregard of its reasonable and known regulations, will alight upon the opposite side. Wherefore, a passenger, who, with notice of a regulation requiring him to alight from his train upon the south side of the track, voluntarily alights upon the north side, and in aligliling, is injured by falling into an unguarded excavation made by the railroad company, cannot recover damages trom the company for his injuries. The fact that the company has permitted persons residing north of its road to cross its right of way and track on foot, at different points in the vicinity of its station building, in going between different parts of the town, is not a waiver of its regulations affecting its passengers, nor a permission to them to alight on the north side. Evidence that occasionally a passenger would get off on the north side of the company's trains, cannot affect ihe rights and duties of the passenger, when it is not shown that the railroad company consented to or had knowledge of such practice, nor is such testimony admissible.
Injury in Alighting-Evidence as to Customary Stopping Place.-In an action by a passenger for personal injuries received while alighting from defendant's train where defendant's theory of the accident is that plaintiff was injured while attempting to alight from its train before it arrived at its usual stopping place and while it was in motion, and plaintiff's theory is that it was at its usual stopping place, and was stationary, evidence of what had previously been the customary stopping place at that station is admissible. Alexandria & F. R. Co. v. Herndon (Va. Dec. 4, 1890), 12 S. E. Rep. 289.
St. Paul & DULUTH R. Co.
(45 Minnesota, 536.) Passenger-Boarding Car-Assurance of Safety by Conductor. The conductor to a railroad train represents the corporation; and persons boarding a car with his consent, have a right to rely upon his assurance that it is safe to undertake so to do before the train moves. Accordingly, when a passenger having care of stock in a freight car, requiring his attention, attempts to enter the car with the sanction of the conductor, and with his assurance that it is safe, and that he will have ample time to do so before the train moves, and is injured by a sudden and unexpected movement of the train while in the car, the company is liable.
Personal Injuries—Excessive Damages.-A verdict for $10,000 for personal injuries will not be disturbed as excessive, where it appears that the injury resulted in the amputation of plaintiff's foot near the ankle, causing the plaintiff great pain and suffering and leaving him a cripple for life.
APPEAL from Washington District Court.
Andrew Olson sued the St. Paul & Duluth Railroad Company for damages for injuries received, and recovered judgment for $10,000. Defendant appeals.
Wm. H. Bliss and 7. N. Castle, for appellant.
VANDERBURGH, J.—The plaintiff's foot was caught and injured between the bumpers of freight cars while climbing into one containing live stock which he claims was under his charge, through the alleged negligence of the defendant, in the sudden and unexpected movement of the train, without any signal or notice. The stock, including horses and cattle, belonged to one Newhaus, and was being transported in two cars from Appleton, on the Manitoba road, to 'Hinckley, on the defendant's road, and from that station to Duluth, by the defendant company,
The plaintiff's testimony tended to show that he assisted Newhaus in loading the stock, and that afterwards he went on board one of these cars at the request of Newhaus, to accompany and help care for the stock, and continued to occupy the same car until he was hurt. Alter passing Hinckley, he was in the car where the horses were with no other attendant, and was noticed by the conductor of the train, and, in response to an inquiry of the latter, in. formed him that he was there in charge of the horses. The conductor, however demanded his ticket, and notified him that he must either get out of the car or pay his fare. Plaintif then handed five dollars to the conductor, who received it, and promised to get and return him the change. They were then at Finlayson, where the accident subsequently occurred, and where the conductor informed the plaintiff that the train would remain an hour or more. Plaintiff thereupon left the train, for a drink of water as he says, and soon after, observing that one of the horses was loose in the car, biting and teasing the others, he started back for the purpose of climbing into the car again in order to secure the horse, when he met the conductor in charge of the train, and in. formed him that the horse had got loose again in the car, and inquired of him if it would be safe to go in there and tie him up, to which the conductor replied: "Yes, you are perfectly sate, for the train is not going to stir before the passenger comes up." Relying on this assurance, as he says, he went between the cars, climbed up over the couplings, slid back the door, the only means of ingress, and was in the act of entering, when the train started with a sudden jerk, and he fell back between the cars, and his foot was caught and crushed between the bumpers. The foregoing is substantially the case as presented by the plaintiff's evidence. There is a sharp conflict between the testimony of the plaintiff and the conductor, who denies that he either expressly or im. pliedly consented to the plaintiff's riding in or returning to the stock car, or that he had any conversation with plaintiff in respect to the movement of ihe train. There is a conflict also between the witnesses as to whether the train was stand. ing on the side or main track. One of the defendant's wit. nesses testified that one of the horses was loose, as sworn to