Chi., B. & Q. R. Co. v. Landauer

• Decision Date: 11 April 1893
• Citation: 54 N.W. 976,36 Neb. 642
• Parties: CHICAGO, B. & Q. R. CO. v. LANDAUER.
• Court: Nebraska Supreme Court

36 Neb. 642

54 N.W. 976

CHICAGO, B. & Q. R. CO.

v.LANDAUER.

Supreme Court of Nebraska.

April 11, 1893.

Syllabus by the Court.

1. A new trial should be allowed when it is clear that material uncontradicted evidence has been disregarded by the jury, and which, if considered and given due weight, would have required a different verdict from that returned.

2. It is the settled rule in this state that where different minds may draw different inferences from the same state of facts, as to whether such facts establish negligence, it is a proper question for the jury, and not for the court; but that rule is subject to the qualification that the inference of negligence must be a reasonable one, where it is impossible to infer negligence from the established facts without reasoning irrationally, and contrary to common sense, and the experience of average men, it is not a question for the jury, and the court should direct a verdict for the defendant. Maxwell, C. J., dissenting.

3. It is the duty of railroad companies to stop their trains at stations a sufficient length of time for passengers to get on and off, and it is negligence for the conductor or other servant of the company to start a train while passengers are obviously in the act of getting on or alighting therefrom.

4. But when a train has made a reasonable stop, and pasengers have not given notice or other evidence of their intention to alight, the starting of the train is not per se negligence for which the company will be held liable.

5. The term “criminal negligence,” as used in section 3, art. 1, c. 72, Comp. St., means “gross negligence,” such as amounts to reckless disregard of one's own safety, and a willful indifference to the consequences liable to follow.

6. It is not such contributory negligence for a passenger to jump from a moving train as will in every case prevent a recovery under the statute above cited; but where the circumstances are such as to render it obviously and necessarily perilous, and to show a willful disregard of the danger incurred thereby, such act amounts to criminal negligence, as above defined. Maxwell, C. J., dissenting.

7. In an action to recover for personal injuries sustained by the plaintiff in jumping from a moving train, the undisputed evidence is that after the train stopped at C. station, for which she held a ticket, the conductor called out the name of the station, but did not leave the train, being engaged in collecting tickets; but by his order the brakeman got off at the rear of the train, and walked along the station platform to the rear of the next to the last car, where, after assisting some passengers to alight, and seeing no others to get off, he gave the signal “All aboard.” After the train had started and was well under way, plaintiff, who had occupied the fourth seat from the front of the rear car, came out upon the front platform thereof, and after hurriedly stepping down one step, and without warning to the conductor or brakeman, who both supposed the passengers for that station had all left the train, and without looking to see where she would land, jumped at a right angle from the train, and in falling was severely injured. Another passenger, who had alighted on the opposite side, had walked the length of a car, crossed over on the car platform, and walked 50 feet, to the gate of a park that distance from the station, while other passengers had walked to a point some distance inside the park fence, before the train pulled out. It also appears that plaintiff was a young woman 17 years of age, of average intelligence, and well acquainted with the premises. Held not to sustain the negligence charged, viz. the negligent starting of the train without giving plaintiff sufficient or reasonable time to alight. Held, further, that plaintiff was guilty of such contributory negligence as will prevent a recovery for the injuries received in jumping from the train. Maxwell, C. J., dissenting.

Error to district court, Lancaster county; Tibbets, Judge.

Action by Minnie Landauer by her guardian, Charles E. Casey, against the Chicago, Burlington & Quincy Railroad Company, to recover for personal injuries sustained in alighting from defendant's train. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded.Marquett & Deweese, for plaintiff in error.

Leese & Stewart, for defendant in error.

POST, J.

This is a petition in error by the Chicago, Burlington & Quincy Railroad Company, and brings into this court for review a judgment recovered by the defendant in error for personal injuries alleged to have been received by her in alighting from a train of the plaintiff in error at Cushman Park, near Lincoln. It appears from the petition that the plaintiff below, Minnie Landauer, (now Minnie Parr,) on the 5th day of July, 1889, purchased from the defendant below a first-class ticket from Lincoln to Cushman Park, and that, upon the arrival of the train upon which she was a passenger at the last-named station, “she started to alight from said train, and, while so attempting to alight, the defendant negligently and carelessly, and without giving plaintiff sufficient or reasonable time in which to alight, started its said train, whereby plaintiff was thrown violently to the ground, without any fault or negligence on her part,” by reason of which she received severe personal injuries, etc. The only allegation of negligence is that included within the above quotation from the petition. In its answer the defendant below denies all allegations of negligence on the part of its servants, and alleges that whatever injuries were received by the plaintiff therein were in consequence of her own negligent and careless act in jumping from the train while in motion. Cushman Park is a flag station on the defendant's line of road, three miles west of Lincoln, where trains are accustomed to stop during the summer months, principally for the convenience of persons from the city visiting the park. The platform where passengers enter and alight from the cars is 215 feet in length and 7 feet wide; its elevation being a few inches above that of the rails of the track. The plaintiff below was at the time of the injury a young woman 17 years of age, evidently possessed of the average intelligence, and who was acquainted with the premises, having frequently visited the park, going and returning on the defendant's trains. On the day in question there were an unusual number of passengers from Lincoln. The conductor, who was passing from the front to the rear of the train collecting tickets, had just passed the plaintiff, who was sitting three or four seats from the front door of the last, or ladies', car, when the train reached the station. He called out the name of the station, but kept on collecting tickets, having given orders for the brakeman to stop and start the train while he was thus engaged. It is clearly shown, and not disputed, that the brakeman got off at the rear end of the train, and walked along the station platform to the rear of the smoking car, which was the next in front of the ladies' car, where he signaled the engineer to start the train. He then entered the smoker from the rear, closing the door after him, at which time the train was in motion. It is evident that the train had started before the plaintiff attempted to alight, as she testified on her direct examination that before she left the car she saw the brakeman through the glass door in front of her. Her testimony, so far as it relates to the cause of the injury, is as follows: “When I supposed the train had stopped, I walked out to the front. I was in the last coach, and I walked to the front of the coach, and looked behind me, and seen the conductor talking to some one, and the aisle seemed to be filled with men as I looked back behind me. I think it was about the fourth seat from the front, and when I looked behind me I seen he was standing there, so I just went right out. Question. Which way did you go out? Answer. The front of the coach. Q. How far did you sit from the front door? A. About three or four seats back, I can't remember which; I think it was four. I went out, and just as I was going, before I opened the door, I looked through the door, and I could see through the glass door the brakeman,--I could tell it was the brakeman by his cap; and just as I got out I looked down, and I seen the platform just as I got out of the door. I don't remember looking towards the platform any more. I remember looking down to my feet where I was to step. I stepped one step, and, as I stepped the other step,--the wind was blowing real hard,--and I raised my foot, and, as I stepped, I did not step on the platform, and it threw me to the ground. I laid there until some one come and picked me up. I don't remember seeing the platform after I took the second glance out. I seen the step when I stepped, and then I stepped right off in the air. Q. When did you first discover that the train was moving,--that is, if it was moving? A. I did not know that the train was moving. I did not realize that the train was moving at all. I supposed it had stopped. Q. Had it stopped prior to this time? A. They say it had, but I could not state that it had. I have no knowledge of the train stopping whatever. So I was picked up, and the train went on, and I remember the train backing back, and I remember the conductor saying, after they had carried me to the stile, he said: ‘If I had known you was on the train, and wanted to get off, I would have been glad to have helped you off.’ He seemed to be very sorry that I was hurt. Q. Did the conductor get out of the car when the train stopped? I don't mean when they backed up. A. No, sir; he was standing right there talking to the men. Q. Did you not see either the conductor or the brakeman on the platform? A. No, sir; I expected one or the other to help me off. It was quite a step; but I remember him saying, if he...