Chicago, Burlington and Quincy Railroad Company v. Lampman

• Decision Date: 03 November 1909
• Docket Number: 591
• Parties: CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, ET AL. v. LAMPMAN
• Court: Wyoming Supreme Court

104 P. 533

18 Wyo. 106

CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, ET AL. v. LAMPMAN

No. 591

Supreme Court of Wyoming

November 3, 1909

ERROR to District Court, Big Horn County, HON. CARROLL H. PARMELEE Judge.

Action by Elvira Lampman against the Chicago, Burlington & Quincy Railroad Company and Chris. Rhinemuth. Verdict and judgment for the plaintiff, and the defendants prosecuted error. The facts are stated in the opinion.

Reversed.

H. S Ridgely, John P. Arnott, and N. K. Griggs, for plaintiffs in error. (J. E. Kelby, of counsel.)

The only reasonable conclusion from the evidence is that the train was moving before the plaintiff reached the platform of the car, and that it was gross negligence on her part to go upon the steps of the car while the train was in motion. The manner in which the plaintiff fell upon leaving the car renders it evident that she must have stepped or jumped from the car instead of being thrown from it as she claims. The plaintiff below was erroneously permitted to testify that she had been distressed in mind as well as body. The question was not limited to distress of mind either proximately or remotely resulting from the injury itself. (Morse v Duncan, 14 F. 396; R. R. Co. v. Siddons, 53 Ill.App. 607; Randolph v. R. R. Co., 18 Mo.App. 609 120 N.W. 307.) The rules of the company had no place in the evidence and were erroneously admitted. In the first place they apply to passenger trains only and not to mixed trains such as the one upon which the plaintiff below was traveling. (Dixon v. Ry. Co., 118 N.W. 946.) In addition to the fact that the rules were not intended for mixed trains, the testimony demonstrates that they could not possibly have applied to the train in question, for the trainmen had duties to perform other than those required by those rules. There was no one to give the signal to the conductor. One brakeman was on the engine and the other was inside the baggage car, each as he should have been. The train was required to do both passenger and freight traffic. Although the particular train carried no freight cars, it was still a mixed train, and those having charge of it could not apply to it rules prescribed for passenger traffic exclusively and at all times. There was no law in Wyoming making necessary the announcing of trains, and without such, no negligence can be predicated on a failure to make such announcement. (Houston, &c., Co. v. Dickerson, 89 Ga. 455.) The plaintiff knew when the train stopped that her destination was reached, and therefore the rule as to announcing of trains was inadmissible. (Ry. Co. v. Hobbs, 118 Ga. 228.) It was error to exclude the evidence offered by the defendants below that the conductor supposed when the train started that all the passengers for the station had alighted. (Straus v. R. R. Co., 75 Mo. 185; Harris v. Ry. Co., 36 Tex. Civ. App. 96.)

By the overwhelming weight of the evidence the train was stopped for two minutes, which was ample time for the plaintiff to alight. The train having stopped a sufficient time for the passenger to get off the carrier is not liable if the passenger is injured by jumping from the train while it is moving to avoid being carried by the station. (Davis v. R. R. Co., 18 Wis. 185; Shealy v. Ry. Co., 67 S.C. 61; Darmont v. R. R. Co., 19 La. Ann. 441; Butler v. R. R. Co., 60 N.W. 1090.) By the evidence of the plaintiff's own witnesses that the stop was half of a minute, she had sufficient time to alight. The plaintiff was guilty of contributory negligence if she was even upon the platform when the train was moving, as she admits she was, and much more was she negligent in then going down to the lower step, while the train was moving from six to eight miles an hour. Had the train not stopped at all she would have been negligent under the circumstances stated. The great weight of the evidence is to the effect that she voluntarily attempted to alight. If so, the starting of the train was not the proximate cause of her injury, but it was the result of her own negligence, defeating her right of recovery. (C., I. &c. Co. v. Dufrain, 36 Ill.App. 352; Ry. Co. v. Highnote, 86 S.W. 923; Ry. Co. v. Cleveland, 61 S.W. 931; Ry. Co. v. Wilson, 100 S.W. 290; Hill v. R. R. Co., 124 Ga. 243; Walker v. R. R. Co., 41 La. Ann. 795; Jacob v. R. R. Co., 63 N.W. 503; Butler v. R. R. Co., 60 N.W. 1090; R. R. Co. v. Martelle, 91 N.W. 364.) A passenger who, after being warned not to alight from a moving train, proceeds to do so, cannot recover for injuries received. (R. R. Co. v. Lutz, 84 Ill. 598; Kilpatrick v. R. R. Co., 140 Pa. 302.) A party alighting from a moving train after being warned is guilty of contributory negligence and cannot recover, although the stop at that station was not a reasonable length of time to allow passengers to alight. (Jewell v. R. R. Co., 54 Wis. 610; R. R. Co. v. Stratton, 78 Ill. 88.) Regardless of the plaintiff's actual purpose in going to the point of danger and of the manner in which she left the train, it is clear that she went down the steps despite the warning given her by one who saw what she was doing. We urge the proposition that the mere fact of her getting off the train at all was conclusive proof of negligence on her part and the instruction asked by the defendants upon that matter should have been given.

In case the train was stopped a sufficient time for passengers to alight, those operating the train were not under obligations to ascertain whether the passenger had actually gotten off or not, and the instruction requested to that effect should have been given. (Davis v. R. R. Co., supra; Darmont v. R. R. Co., supra; Butler v. R. R. Co., supra.) The defendants were entitled to the instruction which was refused to the effect that the jury should entirely disregard the evidence showing that the station had not been called. (Ry. Co. v. Hobbs, supra; R. R. Co. v. Dickerson, supra.) It was plaintiff's duty in case of an inadequate stop not to try to get off the train, but to continue thereon, and look to defendants for any damages she might sustain in consequence of her being carried past her station. It was the plaintiff's duty also to be observant and to notice whether the train was moving or not, to protect herself in every way, and to be vigilant to see that no sudden jerk should throw her off the train. It was error to refuse an instruction to that effect. Even if the rules of the company, which were admitted in evidence, had been applicable they would not tend to establish negligence on the part of the defendants, but before the plaintiff could recover it was incumbent on her to establish by a preponderance of the evidence that she was actually injured by reason of the negligence of the company in not properly stopping its train, and in starting while she was alighting. (118 N.W. 946.) To get off a moving train is a negligent act, especially of a passenger of the age of plaintiff and situated as she was when she attempted to alight. It was error to so instruct the jury that the plaintiff was permitted to recover for future pain or suffering resulting from her injury. (Williams v. Clark, 120 N.W. 307.) The verdict was grossly excessive in amount.

E. E. Enterline and W. L. Walls, for defendant in error.

It is rather inconsistent for counsel for the defendant below to urge that the train in question was a mixed train, since it was alleged in their answer that it simply carried passengers on the date in question. Nor is it to be comprehended what freight duties there were to be performed on that day, when the train had passenger equipment only. It is unreasonable, therefore, to argue that the train was not governed by the rules prescribed for passenger traffic. However, it did not seem to occur to the employees in charge of the train that they had any duties to perform relative to the care of pasesngers, and they did not pay any attention whatever to the safety of the passengers on the train. Upon the evidence the jury were justified in finding that the plaintiff was thrown from the train by a sudden jerk after she had reached the steps of the car for the purpose of alighting. Mental suffering is an element of damage when it accompanies bodily injury. (Stevens v. R. R. Co., 96 Mo. 207; Ry. Co. v. Norment, 84 Va. 167; Oil Co., v. Tierney, 92 Ky. 367; Goodhart v. R. R. Co., 177 Pa. 1; Yerkes v. R. R. Co., 112 Wis. 184; Brasington v. R. R. Co., 62 S.C. 325; Williams v. Clark, 120 N.W. 307.)

The rules of a railway company are admissible on behalf of a person injured through the negligence of the company's employees, when such negligence consists in a violation of any rule prescribed for the government of the employees, and an observance of the rule might have avoided the injury. (R. Co. v. Bates, 103 Ga. 333; R. Co. v State, 81 Md. 371; Cincinnati v. Lynn T. Co., 135 Ill. 371; Stevens v. R. Co., 184 Mass. 476; Frizzell v. R. Co., 124 F. 176; Carlson v. R. Co., 79 N.W. 689; R. R. Co. v. Ashley, 67 F. 209; R. Co. v. Altemeier, 60 O. St. 10.) If the rules with reference to giving the "all right" signal had been observed in the slightest degree, the accident would not have occurred, and the rule could easily have been complied with. For the non-observance of those rules the employees were guilty of negligence. The rules with reference to assisting passengers in getting off and on the train, especially where women are boarding or alighting from the train, might have been observed, and if they had been, the accident would not have occurred. The rules which were introduced in evidence did not in this case provide for a higher degree of care than the law provides, and therefore their admission was not prejudicial in any event. A railway carrier of passengers is bound to call out the name of the station a...