Chi., R. I. & P. Ry. Co. v. Mcalester
| Decision Date | 06 August 1913 |
| Docket Number | Case Number: 2870 |
| Citation | 134 P. 661,39 Okla. 153,1913 OK 498 |
| Parties | CHICAGO, R. I. & P. RY. CO. v. McALESTER. |
| Court | Oklahoma Supreme Court |
¶0 1. CARRIES--Injury to Licensees--Assisting Passengers. Where a person, with the knowledge and consent of the servant of a common carrier, has entered its train for the purpose of assisting a passenger, the carrier is under obligation to permit him, in the exercise of due diligence, to accomplish his purpose and alight from the train before it is set in motion.
2. SAME--Proximate Cause. Where plaintiff, not a passenger, with the assurance of defendant's conductor that he will have time to do so, in the nighttime, without having had much experience in getting on and off trains, goes onto its train in the act and for the purpose of assisting his wife and four small children, all passengers, with a hand grip, to a seat thereon; where the train is not held a minute, nor near as long as usual, but starts before he has time to accomplish said purpose; where, when he has found a seat for such passengers, he, without taking time to say good-bye, hurriedly goes to the vestibule door at which he entered for the purpose of alighting, but is prevented by the act of defendant's brakeman in closing the door at the time he approaches it; where he then asks the brakeman if the train is "going," and, upon being informed it is, asks that it be stopped to permit him to alight; where the brakeman thereupon, without heeding his request, directs him to go to the next vestibule door and get off; where, in accord with such direction, he alights about 200 yards from the station from which the train started; where he sustains bodily injuries in so alighting; where there are no lights in the darkness outside the train; and where he has exercised due diligence in point of time in accomplishing his purpose on the train and in alighting therefrom--it cannot be said as a matter of law that the negligence of defendant was not the proximate cause of his injuries.
3. APPEAL AND ERROR--Verdict--Conclusiveness. Under section 6, article 23 (section 355, Williams' Ann. Ed.), Constitution, the verdict of the jury for plaintiff, where the facts are as stated in the second paragraph of the syllabus, is conclusive as against the defense of contributory negligence.
4. TRIAL--Instructions--Repetition. It is not error to refuse requested instructions substantially embodied in others given the jury by the court.
C. O. Blake, H. B. Low, R. J. Roberts, W. H. Moore, and Wilkinson, Morris & Speer, for plaintiff in error.
Womack & Brown, for defendant in error.
¶1 In this opinion plaintiff in error will be designated as defendant, and defendant in error as plaintiff, in accord with their respective titles in the trial court. Assuming the facts to be such as the evidence, together with the inferences reasonably deducible therefrom, tends to establish in favor of the verdict, it appears: At about 2 o'clock at night, on August 20, 1909, at Marlow, Okla., plaintiff, after purchasing transportation ticket to Bridgeport, Tex., for his wife and four small children, the oldest six years of age and the other three so young as to require carrying in arms, informed defendant's conductor that he was not going away on the train, and asked if he would have time to go onto same with his wife and children, who apparently needed his assistance, and to alight therefrom; and, upon being informed by he conductor that he would, entered the train, carrying two of the children in his arms, while his wife carried another one and a hand grip; but the train, having stopped not to exceed a minute at this station, which was much less than its usual time of stopping there, started as soon as plaintiff and family had gotten into the first coach, where they found no vacant seat, and through which they at once passed to the next coach to the rear, whereupon, finding a seat vacant, plaintiff, without taking time to say good-bye, left his wife and children and hurriedly made his exit from the train, in doing which he, finding the doors in the vestibule between the two mentioned coaches closed, passed through said first coach to the car door at the vestibule at which he had entered the train, where he found defendant's brakeman, who had just closed the vestibule door in time to prevent his exit there. Plaintiff thereupon asked this brakeman if the train was going, and, upon being told that it was, informed the brakeman that he wanted to get off, and asked that the train be stopped to permit him to do so; but the brakeman directed him to go to the vestibule door at the opposite end of the next car forward and get off. Passing through this car the plaintiff found the vestibule door to which he had been directed open, and, relying upon the direction of the brakeman, got off as directed, about 200 yards from the station, but in thus alighting he fell and sustained injuries, including a fracture of the radius, a dislocation and, perhaps, a fracture of the patella, laceration of hand, and injuries resulting in swollen condition of hands, head, and hips, from which, surgically speaking, he afterwards and before the trial recovered; but he was confined to his bed a month, incurred expense of $ 70 for a doctor, was unable to work during the "fall" following, and at the time of the trial had a weakened leg and hand, as a result of which his laboring and earning capacities were reduced by one-half. His earning capacity was $ 1 per day before he suffered these injuries. The night was dark and there was no light outside the train. Plaintiff had resided at Marlow five years, and had been at defendant's station and seen the train stop there "right smart"; but he testified he lived two miles northeast of Marlow, had come in to the station by means of a wagon and team, was a farmer, and, although 35 years old, in all his life had not been on a train more than two or three times, one of which times it appears included his removal trip from Missouri to Parker county, Tex. In St. Louis & S. F. R. Co. v. Lee, 37 Okla. 545, 132 P. 1072, it is held:
¶2 In notes to City of Seattle (Pacific Coast Company et al. v. Jenkins), 10 Ann. Cas. 159, it is said:
"If the servants of the carrier know that a person is boarding a train for the purpose of assisting a passenger, and not with the intention of becoming a passenger himself, they are under obligation to hold the train a reasonable or sufficient time to permit him, in the exercise of due diligence, to accomplish his purpose and to alight from the train before it is set in motion." Southern R. Co. v. Patterson, 148 Ala. 77, 41 So. 964, 121 Am. St. Rep. 30; Little Rock, etc., Railroad Company v. Lawton, 55 Ark. 428, 18 S.W. 543, 15 L.R.A. 434, 29 Am. St. Rep. 48; Seaboard Air-Line R. Co. v. Bradley, 125 Ga. 193, 54 S.E. 69, 114 Am. St. Rep. 196; Louisville, etc., R. Co. v. Crunk, 119 Ind. 542, 21 N.E. 31, 12 Am. St. Rep. 443; Bishop v. Illinois Cent. R. Co. (Ky. 1904) 77 S.W. 1099; Louisville, etc., R. Co. v. Wilson (1907) 124 Ky. 846, 100 S.W. 290, 8 L.R.A. (N.S.) 1020; Doss v. Missouri, etc., R. Co., 59 Mo. 27, 21 Am. St. Rep. 371; Bond v. Chicago, etc., R. Co., 122 Mo. App. 207, 99 S.W. 30; Morrow v. Atlanta, etc., Air-Line R. Co., 134 N.C. 92, 46 S.E. 12; Johnson v. Southern R. Co., 53 S.C. 203, 31 S.E. 212, 69 Am. St. Rep. 849; Cooper v. Atlantic Coast Line R. Co. (1907) 78 S.C. 562, 59 S.E. 704; International, etc., R. Co. v. Satterwhite, 19 Tex. Civ. App. 170, 47 S.W. 41; Texas, etc., R. Co. v. Funderburk, 30 Tex. Civ. App. 22, 68 S.W. 1006; St. Louis Southwestern R. Co. v. Cunningham (1907) 48 Tex. Civ. App. 1, 106 S.W. 407.
¶3 In notes to Wickert v. Wisconsin Ry. Co., 20 Ann. Cas. 452-456, will be found more recent cases, to the same effect, upon the question of the duties of a railroad company to a person attending a passenger boarding a train. In C., R. I. & P. Co. v. Duran, 38 Okla. 719, 134 P. 876, it is said:
¶4 A number of cases are there cited as sustaining the foregoing formula for determining whether the injury is the proximate result of the negligence, and it appears that the verdict and judgment in the present case are based upon facts which should enable them to withstand the test of this formula. In Kansas City Southern Ry. Co. v. Worthington, 101 Ark. 128, 141 S.W. 1173, where a passenger got off of a moving train after he discovered it would not stop at the station of his destination, it was said:
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