Cannon v. Atchison, T. & S.F. Ry. Co.
| Decision Date | 07 July 1917 |
| Docket Number | 20967 |
| Parties | CANNON v. ATCHISON, T. & S. F. RY. CO. |
| Court | Kansas Supreme Court |
Rehearing Denied Oct. 12, 1917.
Syllabus by the Court.
In the absence of any regulation forbidding persons to enter trains to assist a passenger, one who goes upon a train for that purpose has an implied permission or license so to do, and the carrier owes him the duty of ordinary care for his protection where it has notice of his purpose and intention in entering the train.
Notwithstanding a finding that a passenger train stopped at a station for a period of five minutes, it is held that it was for the jury to determine under all the facts and circumstances whether one who entered the train to assist a passenger was given a reasonable time to leave the train before it started.
The special findings examined, and held to show that after discovering the negligence of the defendant, the plaintiff was negligent in attempting in the darkness to alight from the train while it was running at eight miles an hour, and therefore the defendant was entitled to judgment on the findings.
Appeal from District Court, Kingman County.
Action by Sam Cannon against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff defendant appeals. Reversed and remanded, with directions.
W. R. Smith, O. J. Wood, A. A. Scott, and Harlow Hurley, all of Topeka, for appellant.
Walter & Connaughton, of Kingman, for appellee.
The action was to recover for injuries sustained by plaintiff caused by his alighting from a passenger train while it was in motion. The petition alleged that plaintiff, a man past 60 years of age, went to the station of the defendant at Kingman to assist his son and his son’s wife in taking the train; that he informed the brakeman of his purpose in entering the train, and that the brakeman permitted him to enter with that understanding. It alleged that defendant, well knowing that plaintiff had not had sufficient time to deposit the baggage and return, started its train, and that acting in pursuance of the orders of the brakeman he attempted to alight and sustained the injuries complained of; that when he reached the lower step of the coach after the train was in motion the brakeman informed him that he could alight with safety and instructed him how to jump. It alleged that the plaintiff was unacquainted with the operation and movement of passenger trains and cars and the consequence of alighting therefrom while they were in motion, and that at the time his injury occurred he was in the exercise of ordinary care and in pursuance of the instructions given by the brakeman upon which he believed he could safely rely. Negligence was alleged because of defendant’s failure to have its depot platform and grounds sufficiently lighted, failing to keep its passenger train stationary until plaintiff had time to alight, and in the willful failure to exercise ordinary care and stop the train to allow him to alight, and in ordering and instructing him to get off. The answer consisted of a general denial and a plea of contributory negligence.
The evidence for plaintiff showed that he followed his son and daughter-in-law on the train, and said to the brakeman, "I am just helping the kids on"; that the brakeman did not say anything, and he went in. He set the baggage down and shook hands with his folks, when his daughter-in-law said, "Daddy, the train has started." Plaintiff testified:
His testimony was that after getting down on the step he changed his mind and thought he would go back. He did not ask any one to stop the train. One of plaintiff’s witnesses had assisted some other people upon the same train, and after the train started came out on the platform behind the plaintiff. This witness testified:
The witness looked down the steps and saw that Mr. Cannon had been hurt and informed the brakeman.
The jury found a verdict in plaintiff’s favor for the sum of $800, and returned the following special findings:
Q. 1. After stopping at the station at Kingman, how long did defendant’s train in question remain at said station before it started to leave same? Ans. Five minutes.
Q. 2. At what rate of speed was the train moving at the time plaintiff got off from same? Ans. About eight miles per hour.
Q. 3. If you find that the negligence of the defendant caused any injury to the plaintiff, state in what respect or respects the defendant was thus negligent. Ans. Defendant’s agent started the train before plaintiff could leave the car. Insufficient lights on platform.
Q. 4. If either the plaintiff or the defendant’s agent and employés had exercised ordinary care and caution at the time and place in question, would the injury to plaintiff have been avoided? Ans. If the plaintiff and defendant’s agent had both exercised ordinary care and caution, the injury to plaintiff would have been avoided.
Q. 5. If you find for plaintiff, what, if anything, do you allow for impairment or ability to earn a livelihood in the future? Ans. Nothing.
Q. 6. State the exact cause of plaintiff’s falling in getting off the moving train. Ans. By getting off the moving train on the defendant’s dark platform.
Q. 7. If you find that plaintiff started back into the coach after he reached the lower step on the platform, when he first started off, state why he started back into the coach. Ans. Plaintiff stated he thought the train would be stopped.
Q. 8. Did brakeman Kincaid order or command plaintiff to leave the train, or did he merely advise him as to the safer method of leaving the train at the time? If the brakeman did either, state which. Ans. Advised him.
Q. 9. Did the brakeman tell plaintiff, in substance, that if he was going to jump face the other way, at a time when the train was running at such speed in the dark that it was clearly of great danger for any one to attempt to get off the train? Ans. Yes.
Q. 10. Did the train arrive and depart from the station on or near about schedule time on the evening in question? Ans. Yes.
The defendant moves for a judgment against the plaintiff on the special findings of fact, which was overruled, and the defendant appeals.
The defendant insists the findings show that plaintiff was afforded a reasonable opportunity in which to alight from the train after his errand had been accomplished. This is based on the finding that the train stopped at the station for five minutes. We think it cannot be said as a matter of law that reasonable time was given. The question was for the jury to determine under all the facts and circumstances in evidence.
It is further insisted that the findings show the train was moving at the rate of eight miles an hour when the plaintiff attempted to jump off, that he had not asked the brakeman’s advice as to the dangers of jumping, and that there is a special finding that the brakeman told him if he was going to jump, to face the other way, which the evidence shows was good advice. For these reasons it is insisted that even if the plaintiff was not afforded a reasonable time to leave the train, still that could not have been the proximate cause of his injuries, but that the injuries were occasioned by his own voluntary act in jumping from the train without any necessity for his doing so, without asking that the train be stopped.
Among the cases cited by defendant in support of this contention is Hill v. Louisville & Nashville Railroad Co., 124 Ga 243, 52 S.E. 651, 3 L. R. A. (N. S.) 432. In that case it was held that, admitting the negligence of the railway company in not affording the plaintiff a reasonable length of time to assist his relatives in boarding the train and for him to alight, the negligence of the company in these respects was not the...
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