Chi., R. I. & P. Ry. Co. v. Sattler

• Decision Date: 08 May 1902
• Citation: 90 N.W. 649,64 Neb. 636
• Parties: CHICAGO, R. I. & P. RY. CO. v. SATTLER.
• Court: Nebraska Supreme Court

64 Neb. 636

90 N.W. 649

CHICAGO, R. I. & P. RY. CO.

v.SATTLER.

Supreme Court of Nebraska.

May 8, 1902.

Syllabus by the Court.

1. A passenger on a railroad train does not lose his character as such by leaving his car at a regular station from motives of either business or curiosity, although he has not yet arrived at the terminus of his journey.

2. Where, however, the train in which the passenger is being transported is run upon a switch to allow the passage of another train, or is stopped at a place other than that used by the carrier for receiving and discharging passengers, and the stoppage is not for the purpose of allowing passengers to board the train or alight therefrom, one who leaves the train must usually assume all the ordinary risks incident to his action.

3. All passengers actually on the train, whether the same is moving or not, are passengers “being transported over the road,” within the meaning of section 3, art. 1, c. 72, of the Compiled Statutes; and passengers who have left the train at the express or implied invitation of the carrier, for any necessary purpose incident to their journey, are passengers being transported, within the meaning of said section.

4. Where a passenger leaves his car of his own volition, for some purpose of his own, not incident to the journey he is pursuing, and at a place not designed for the discharge of passengers, he cannot claim the protection of section 3, art. 1, c. 72, of the Compiled Statutes, although the carrier may, under some exceptional circumstances, still owe him the duty imposed on it by the common law.

5. A through train between Denver and Chicago ran onto a side track at an intermediate station to allow the passage of another through train, from the east. A through passenger left his car, crossed the main track of the road to the depot, and went to a pump for a drink of water. He filled his cup from the pump, but, before drinking, heard the whistle of the incoming train, and started on a rapid run to regain his car. From the pump the track over which the incoming train was approaching could be seen for about 100 feet, and three steps from the pump toward the track over which the train was approaching the track was visible for a mile or more. When the passenger reached the track the approaching train was about 50 feet distant from him, and running at a high rate of speed. The passenger attempted to pass in front of the train, and was struck by the engine and killed. Held that, under the circumstances, he was not “a passenger being transported over the road,” within the meaning of section 3, art. 1, c. 72, of the Compiled Statutes, and the railroad was not liable for damages on account of his death, because of his own negligence.

Commissioners' opinion. Department No. 3. Error to district court, Cass county; Jessen, Judge.

Action by John P. Sattler, administrator of Emanuel Leveroni, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

M. A. Low, Wm. F. Evans, and Woolworth & McHugh, for plaintiff in error.

Matthew Gering, for defendant in error.

DUFFIE, C.

John P. Sattler, the defendant in error, is administrator of the estate of Emanuel Leveroni. The deceased was killed by a train of the railroad company at the station of Alvo, in Cass county, Neb., on the 11th of April, 1899. The jury returned a verdict against the company for $4,000, upon which judgment was entered, and the company has brought the case to this court by petition in error.

There is little or no dispute over the facts in the case. Leveroni, the deceased, was a through passenger over the railway of the plaintiff in error from the city of Denver to Chicago. The train upon which he was traveling arrived at the station of Alvo from the west on schedule time, at 2:52 in the afternoon. On its arrival at the station the train went upon a side track to await the arrival and passage of a west-bound train which was then due at that point; its schedule time being the same at that station as the train upon which the decedent was traveling. The train from the east was behind time, and, while the train upon which Leveroni was a passenger was waiting on the side track, Leveroni left his train, and crossed over the main track to the depot platform, and to a pump a few feet west of the depot, to get a drink of water. About the time that he reached the pump the west-bound train was heard to whistle, when Leveroni left the pump, and started on a run for his car, and, in crossing the track upon which the west-bound train was approaching the station, was struck by the approaching train and instantly killed. The east-bound train upon which he was a traveler did not move from the side track until after the deceased was killed, nor had any signal or order been given that said train would move or start. It might be further stated that the evidence is undisputed that there was plenty of good drinking water in the car upon which the deceased was a passenger, and in all the cars of that train.

Two questions are presented by this record for our determination: (1) Was the deceased a passenger, within the legal meaning of that word, after leaving his car while it was standing upon the side track for the purpose of allowing an approaching train to pass? (2) If he was such passenger, can his administrator claim for him or his estate the benefits of the provisions of section 3, art. 1, c. 72, of the Compiled Statutes of 1901?

Relating to the first question, the courts may be said to be farly divided. In Maine and Minnesota the rule appears to be that a passenger on a railway, who purchases a ticket for a distant station, and gets off the train temporarily, and without objection or notice, while it is stopping at an intermediate station, surrenders for the time being his place and rights as a passenger. State v. Grand Trunk Ry. Co., 58 Me. 176, 4 Am. Rep. 258;De Kay v. Railway Co., 41 Minn. 178, 43 N. W. 182, 4 L. R. A. 632, 16 Am. St. Rep. 687. See, also, Railway Co. v. Foreman, 73 Tex. 311, 11 S. W. 326, 15 Am. St. Rep. 785. In De Kay v. Railway Co. the facts were very similar to the facts under consideration in the case at bar. The conclusion of the court upon these facts is well expressed in the syllabus of the case as follows: “Where a passenger enters a railway train, and pays his fare to a particular place, his contract does not obligate the company to furnish him with means of egress and ingress at an intermediate station; and, if he leaves the train at such a station, he, for the time being, surrenders his place as a passenger, and takes upon himself the responsibility of his own movements; but, if he leaves without objection on part of the company, he does no illegal act, and has a right to re-enter and resume his journey. While, if a railway company permits the practice of passengers leaving and re-entering their train while on a side track at an intermediate station for the purpose of letting another train pass on the main track, it is bound to use reasonable care not to expose such passengers to unnecessary danger, yet it is not bound to so regulate its business as to make the side track as safe a place of ingress or egress as the station platform; nor does it give any assurance, under such circumstances, to passengers, that no trains will pass while they are crossing or recrossing the main track. Neither does the call of ‘All aboard!’ by the conductor of the side-tracked train give an assurance to those who have left their train that they may cross the main track in safety without looking for approaching trains. Passengers who have thus left their train, when they attempt to cross the track, under these circumstances, are bound to exercise reasonable care and caution to avoid injury from passing trains, and must use their senses for that purpose. The station platform, and not the side track, is the proper place to enter or leave a train; and those who, for purposes of their own, use the latter, assume all the extra risks necessarily incident to such a practice, and are bound to exercise a degree of care corresponding to the increased risks.” Another class of cases establish the rule that a passenger on a railroad train does not lose his character as such by alighting from the cars at a regular station from motives of either business or curiosity, although he has not yet arrived at the terminus of his journey. Parsons v. Railroad Co., 113 N. Y. 355, 21 N. E. 145, 3 L. R. A. 683, 10 Am. St. Rep. 450; Clussman v. Railroad Co., 9 Hun, 618.

Of the two classes of cases which we have been examining, we think that the latter establishes the better rule. In this country of long journeys by railway trains, there can be no impropriety in a passenger claiming the right, which may be said to be established by long custom, to leave his car at any intermediate point on his journey, where a stop of any considerable time is made, to send a message, to obtain exercise and relief by walking up and down the platform, or to gratify his curiosity, provided he does not interfere with the employés of the company, or run counter to any established rule brought to his notice. In the exercise of this privilege he does not lose his character of passenger, and the common-law duties of the carrier are still to be exercised in his behalf, and injuries received on account of a failure on the part of the carrier to observe all its duties toward him required by the rules of the common law must be responded to in an action for damages. We think that the supreme court of Massachusetts has announced the true rule in Dodge v. Steamship Co., 148 Mass. 207, 19 N. E. 373, 2 L. R. A. 83, 12 Am. St. Rep. 541, where the following language is used: “To determine the right of the parties in every case, the question to be answered is, what shall they be deemed to have contemplated by their contract? The passenger, without losing his rights, while he is in...