Worthington v. Central Vt. R.R. Co

• Decision Date: 01 October 1891
• Parties: WORTHINGTON v. CENTRAL VT. R.R. CO
• Court: Vermont Supreme Court

23 A. 590

64 Vt. 107

WORTHINGTON v. CENTRAL VT. R.R. CO

Supreme Court of Vermont

October 1, 1891

GENERAL TERM, OCTOBER, 1891

Judgment reversed and cause remanded.

C A. Prouty, for the defendant.

Start and Thompson JJ., did not sit, having been of counsel.

OPINION

ROWELL

If, as matter of law, it was prima facie negligence for the plaintiff to be riding on the platform or the steps, as shown by the case, and if his riding there contributed to his injury, then the burden was on him to show that he was riding there for a reason that freed him from the imputation of negligence; and if the testimony did not tend to show such reason, he had no case for the jury, and the court should have directed a verdict against him.

It is sometimes said that when the facts are conceded or undisputed, the question of negligence is for the court and not for the jury. But this must not be taken in its broadest sense and as universally true, but with limitation. When the law prescribes what shall constitute negligence, or when the act relied upon to show negligence is isolated, then negligence becomes a question of law.

But when the standard of negligence is not prescribed, and there is a combination of facts and circumstances relied upon to show negligence, the question becomes one of law only when those facts and circumstances are so decisive one way or the other as to leave no reasonable doubt about it--no room for opposing inferences. This is clearly shown by the adjudged cases.

Thus in Briggs v. Taylor, 28 Vt. 180, it was regarded as so certain that carriages and sleds would be injured by standing out doors all winter, that the court ruled as matter of law that thus leaving them was negligence. But in Vinton v. Schwab, 32 Vt. 612, it is said, that although there is no conflict in the testimony in respect of negligence, yet, if it still rests upon discretion, judgment, and experience, it is matter of law and not of fact. And in Whitcomb v. Denio, 52 Vt. 382, it is said that whatever the rule may be in other States when the facts are undisputed, in this State, when the question is whether a thing has been done within a reasonable time or with reasonable care, or when any other fact is to be determined that involves the judgment of the trier upon an existing state of facts and circumstances, the almost universal practice has been to submit the question to the jury.

In Hunter v. Cooperstown &c. R. R Co., 112 N.Y. 371, it was held that the plaintiff, who was sui juris and in the full possession of his faculties, with nothing to disturb his judgment, was guilty of negligence as matter of law in attempting to board a railroad train moving at the rate of from four to six miles an hour, and that the question did not become one of fact by the conductor's calling out to him to get on. That it was a dangerous and hazardous attempt, the court said must be the judgment of all men; that persons are taught from their earliest youth the great danger attending an attempt to board or to leave a train while in motion; and that there is no person of mature years and judgment but has the knowledge that such an attempt is dangerous in the highest degree. But the court said that there may be cases in which such an attempt would not be regarded as negligence as matter of law, and where the question of negligence upon all the facts in the case should be submitted to the jury, and referred to Filer v. New York Central R. R. Co., 49 N.Y. 47, as such a case.

In Solomon v. Manhattan R. R. Co., 103 N.Y. 437, it is said that the rule established by the decisions is, that it is presumptively a negligent act for a passenger to attempt to alight from a moving train, and that it is not sufficient to rebut the presumption that the trainmen acquiesced in the action of the passenger, nor that the company violated its duty or contract in not stopping the train, nor that to remain on the train would subject the passenger to trouble or inconvenience, but that to excuse such an act and free the passenger from the charge of contributory negligence, there must be a coercion of circumstances that did not leave the passenger in the free and untrammeled possession of his faculties and judgment. And the court went on to say, that although negligence is usually a fact for the jury, yet that the inference of negligence in a given case may be so strong and convincing that the judge may direct a verdict; that the conclusion that it is prima facie dangerous to alight from a moving train is founded on our general knowledge and common experience, and that it is akin to the conclusion now generally accepted, that it is in law a dangerous and therefore a negligent act, unless explained and justified by special circumstances, to attempt to cross a railroad track without looking for approaching trains.

In Morrison v. Erie Railway Co., 56 N.Y. 302, it was held that the question whether a person has been guilty of contributory negligence in attempting to alight from a car in motion is not in every case a question of fact for the jury; that when the facts are undisputed, the question of contributory negligence may become a question of law; and it was held to be such in that case. Bolger, J., in delivering the opinion of the court, said: "Can it be said that a person of ordinary care and prudence would have swung himself from a car in motion down to the ground in the dark, ladened with the weight of a child twelve years old, having but one hand and one arm to aid himself with, when there was no other danger to be avoided by meeting this, and no incentive to the act other than the inconvenience of being carried by his place, of abode, and with a full apprehension of the danger he was about to incur? I think not, and am of the opinion that it is so clear, that the law and this court should have answered without calling in the aid of the jury."

Gavett v. Manchester & Lawerence R. R. Co., 82 Mass. 501, is to the same effect. There it appeared that after the train started and was in motion, the plaintiff either passed out of the door and was on the platform of the car for the purpose of attempting to leave it or was actually stepping from the platform of the car upon that in front of the station. While thus situated she was thrown from the car and injured. The court said that it could not be doubted that the well-known hazards of traveling on railroads and the unprotected and exposed situation of persons standing on the platform of a car or attempting to leave it when the train is about to start or is actually in motion, render it unsafe for passengers to place themselves in such a position, and preclude the idea that due care can be exercised under such circumstances.

So, riding with an arm projecting out of the car window, whereby it is injured, is negligence per se, and precludes recovery. Todd v. Old Colony &c. R. R. Co., 85 Mass. 18; 80 Am. Dec. 49.

In Indianapolis &c. R. R. Co. v. Watson, 114 Ind. 20; 5 Am. St. Rep. 578, 591, it is said that if from the facts only one inference can be drawn, and that is that there was negligence, it must be adjudged as matter of law; or conversely, if it can be clearly affirmed as matter of law that there was no negligence the court must so declare. In Seefeld v. Chicago &c. R. R. Co., 70 Wis. 216, (5 Am. St. Rep. 168,) it is held that when the facts are undisputed and admit of no doubtful nor opposing inferences, the question of negligence is one of law.

Many other cases of like import might be cited, but these are quite sufficient to establish the proposition above laid down, namely, that when the standard of negligence is not prescribed, and there is a combination of facts and circumstances relied upon to show negligence, the question becomes one of law only when those facts and circumstances are so decisive one way or the other as to leave no reasonable doubt--no room for opposing inferences.

This brings us to consider whether, as matter of law, it was prima facie negligence for the plaintiff to be riding on the platform or the step as shown by the case. He was standing either on the second step or on the edge of the platform, with his back to the saloon window, holding on to the iron on the end of the car. There were notices on the car doors, forbidding persons to stand on the platform. The platform was full, and two small boys stood on the steps below him. The train was running at the rate of about thirty miles an hour at the lowest estimate; plaintiff's testimony tended to show that it was running much faster than that, and was swaying and jolting badly. There is nothing to show that the plaintiff was not an intelligent man, and in the full possession of his faculties. Add to this the well known fact that in this State railroads must be built with many and sharp curves, which cause fast-running trains to sway and lurch considerably, however good the track, thereby greatly increasing the danger to one riding on the platform or steps of being jolted and thrown off,--and...