Boss v. Providence & W.R. Co.

• Decision Date: 25 July 1885
• Citation: 15 R.I. 149,1 A. 9
• Parties: BOSS v. PROVIDENCE & W. R. CO. [1]
• Court: Rhode Island Supreme Court

1 A. 9

15 R.I. 149

BOSS v. PROVIDENCE & W. R. CO. ^[1]

Supreme Court of Rhode Island

July 25, 1885

Oscar Lapham and Simon S. Lapham, for plaintiff.

Edwin Metcalf, Nicholas Van Slyck, and Stephen O. Edwards, for defendant.

TILLINGHAST J.

This is a petition for new trial on the grounds that the verdict is against the evidence and the weight thereof, and that the damages found by the jury are excessive. The main facts in the case are not in dispute, and are substantially as follows, viz.: The plaintiff, who resides at Pawtucket, was a passenger on defendant's road from Providence to Pawtucket on the night of January 2, 1883, leaving Providence in the 6:10 P. M. train, which was due at Pawtucket at 6:22 P. M. The train, which consisted of five cars, ran on the west track going out, and as it approached the Dexter street crossing, which is about 600 feet south of the Pawtucket station, which is on the west side of the track, it was signaled to stop by a crossing tender of the road, and did stop. When it came to a standstill the engine and one car had passed over said Dexter street crossing, the remainder of the train being over and immediately to the south thereof. A freight train on the east track was about to pass the Pawtucket station going south, and the signal to the passenger train to stop was given to prevent the latter from reaching the station at the time when said freight train was passing the same, and to avoid the consequent liability to accident on the part of the passengers. No notice was given in the smoking car that the train had not arrived at the station. Directly upon the stopping of the train, the plaintiff, who occupied a seat near to the forward door of this car, which was next to the engine, went to the front platform, and, having alighted, attempted to cross the east track of said road, going in the direction of his home. In the act of crossing he was struck by the engine of said freight train, knocked down, his right leg so badly injured that it had to be amputated just below the knee, and other injuries inflicted. The cars were well filled with passengers at the time of the accident, quite a number of whom were for Pawtucket; and, when the train stopped as aforesaid, many of them, supposing that they had arrived at the station, arose from their seats, and started to leave the cars. The plaintiff testified upon this point as follows: "There are two tracks laid side by side. George Brown was with me. * * * Finally the train stopped, and I thought we had got to the depot. Judging by the time, I thought it was just about time to get to the Pawtucket depot. I never thought anything about Dexter street, for I had never stopped there before. I thought I was at the depot, and felt perfectly safe in getting out. * * * That is the side I always get off at. * * * I got out the same as I always had at the depot. It was dark, and I could not see what there was in front of me. It is just the common distance between the two tracks."

It was and long had been the custom for passengers to board and leave trains at the Pawtucket station on either side thereof without caution or restriction from the officers or servants of the road; and passengers alighting from a train at said station, on the east side of a train going north, would necessarily descend upon the ground, there being no platform between the tracks, and would cross the east track, which is the one used by inward, Providence-bound trains. There were platforms on each side of the double track at the station the one on the east side, however, being very short, and used mainly in the handling of baggage; but it frequently happened that they were not of sufficient length to accommodate the entire trains stopping there, in which cases passengers in the extreme front and rear cars descending upon either side thereof would frequently alight upon the ground. The train in which plaintiff was a passenger was on time, and it had never before stopped, so far as the employes of the defendant knew at said Dexter street crossing. One of the printed rules of the road provided that "when a passenger and freight train approach a station at the same time, the freight train must always be stopped before reaching it and wait for the passenger train, and no switching will be done until it has passed." Said rules took effect January 1, 1879. But since then the road has been provided with electric signals, and, to meet this new condition of things, the superintendent has, from time to time, supplemented and varied these rules and regulations by personal instructions given to the employes of the company. At the time of the accident both trains and the crossings were in charge of the usual number of careful, competent, and experienced officials, and the gates at said Dexter street crossing were closed, and furnished with the lights ordinarily used at such places. The conductor of the passenger train had no warning of the intended stop or the cause thereof. He proceeded promptly to ascertain the cause, and, having done so, caused his train to move forward slowly to the station. The stop at said crossing was but momentary. The engine on the freight train carried a head-light, which lighted the track in front for a considerable distance. There was a curve in the road, however, at and near to said Dexter street crossing which prevented said head-light, to some extent, from lighting the track where the accident occurred. Said freight train was running at the rate of about 15 miles per hour, and both the engineer and fireman thereon saw the plaintiff on the track before he was struck; but it was impossible then to stop the train or lessen its speed before it struck him. The plaintiff was well acquainted with the surroundings at said crossing and at the station, having been on the police force of the town for several years, and had frequently been a passenger on defendant's road between Providence and Pawtucket.

There is some conflict of testimony as to whether it was cloudy and foggy at the time of the accident; but it was dark, and there was no moon. The witness Sewell Read testified upon this point as follows: "It was a very dark night; that is, it was misty. It is just as dark when you get opposite the depot as it is there, [place of the accident.] * * * Going on the opposite side from the depot you are going into total darkness. There is a light on Exchange street, clear at the corner of the bridge, but you could not tell by that, I should think."

The jury found for the plaintiff, and assessed the damages at $6,000.

The defendant contends-- First, that upon this state of facts there is no evidence of negligence on its part; and, second, that there is evidence of gross carelessness on the part of the plaintiff.

In regard to the degree of care which the law imposes upon common carriers of passengers, it is settled by a long and uninterrupted line of adjudications that they are bound to exercise the utmost care and skill which prudent men would use under similar circumstances, and that they are liable for injuries resulting from even the slightest negligence on the part of themselves or their servants. Weed v. Panama R. Co. 5 Duer, 193; Maverick v. Eighth Ave. R. Co. 36 N.Y. 378; Caldwell v. Murphy, 1 Duer, 233; Edwards v. Lord, 49 Me. 279; Sales v. Western Stage Co. 4 Iowa, 547; Derwort v. Loomer, 21 Conn. 245; Simmons v. New Bedford Steam-boat Co. 97 Mass. 361; McElroy v. Nashua & Lowell R. Corp. 4 Cush. 400; Ingalls v. Bills, 9 Metc. 1, and cases there cited; Stokes v. Saltonstall, 13 Pet. 181, 191; Bowen v. New York Cent. R. Co. 18 N.Y. 408; Thayer v. St. Louis, A., etc., R. Co. 22 Ind. 26; Chicago, etc., R. Co. v. George, 19 Ill. 510; Virginia Cent. R. Co. v. Sanger, 15 Grat. 230; Nashville & C. R. Co. v. Messino, 1 Sneed, 220.

It is also equally well settled that the question as to whether or not the defendant in a given case is chargeable with negligence is ordinarily a question of fact to be determined by the jury, under proper instructions from the court as to what constitutes negligence. And the same is true in regard to contributory negligence on the part of the plaintiff.

And, although there are cases in which, the facts being undisputed, and being decisive of the case, it becomes the duty of the court to decide, as matter of law, upon the question of negligence, yet it is only in those cases where the question of fact is entirely free from doubt, and where only one conclusion can be fairly arrived at therefrom, that the court has the right to thus apply the law without the action of the jury.

In the language of the court in Hart v. Hudson River Bridge Co. 80 N.Y. 622, cited in defendant's brief "When, from the circumstances shown, inferences are to be drawn which are not certain and incontrovertible, and may be differently made by different minds, it is for the jury to make them; that is to say, when the process is to be had at a trial of ascertaining whether one fact had being from the existence of another fact, it is for the jury to go through with that process." Or, as is tersely said by COOLEY, C. J., in Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99, 122, also cited by defendant: "When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence cannot be determined until one or other of these conclusions has been drawn by the jury. The inferences to be drawn from the evidence must either be certain and incontrovertible or they cannot be decided upon by the court. Negligence cannot be conclusively established by a state of facts upon which fair-minded men may well differ." See, also, Bernhardt v. Rensselaer & S. R. Co. 32 Barb. 165; Shear. & R. Neg. § 11, and notes; Keller v. New York ...