Chicago, Burlington & Quincy Railroad Company v. Landauer
| Decision Date | 11 April 1893 |
| Docket Number | 4885 |
| Parties | CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. MINNIE LANDAUER |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before TIBBETS, J.
REVERSED AND REMANDED.
T. M Marquett and J. W. Deweese, for plaintiff in error.
Leese & Stewart, contra.
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 seventeen 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 testifies 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.
Q. Which way did you go out?
A. 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 toward 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 came 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 that 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 had known it he would have been glad to help me off." There was a physician on the train that said my ankle was broken. * * * *
Q. About how many feet west of the platform was it that you fell?
A. I could not just exactly say, but I think it must have been between seven and eight feet, something like that.
Q. Mrs. Parr, as soon as you thought the train had stopped there at Cushman park, what did you do? Did you sit in your seat or did you get up and start to get off?
A. I started to get off when I thought the train was stopped.
Q. You have been there before?
A. Yes, sir.
Q. On that train to that station before?
A. Yes, sir.
Q. What was your age at that time?
A. I was seventeen years old.
And on cross-examination she testifies:
Q. Did the train stop at Cushman park? Can you say that it did?
A. I have no knowledge or anything.
Q. Did you not know at the time whether it was stopped or not?
A. No, I thought it was stopped, I naturally supposed it would stop.
Q. Can't you tell well enough whether a train is running or standing still?
A. The wind was blowing real hard, and from what some of the rest say it was pulling out real slow, as it always does when a train starts; I suppose it was just pulling out. I think it was stopped when I stepped because I could see the platform when I first looked out, but after that I don't remember seeing the platform. I expected, of course, to step on the platform, but I stepped right in the air.
Q. Did you see the platform when you looked out through the window?
A. When I went out on the step outside of the door.
Q. So you suppose the train was moving out slowly as they do when they start?
A. I say I thought it was stopped, but that is the way others say it was; I thought it was stopped.
Q. Did you stop when you went out on the platform or look to see what the train was doing or undertake to get off?
A. No, I just took a glance out and then just took a step. I just turned my head as I closed the door. I was looking to see if any one was there to help me off, that was my reason for looking.
Q. Did you see the brakeman in the car in front of you?
A. Yes, right in front of me; I seen him there through the doors; he was looking this way, or had his face turned sideways.
Q. Did you take hold of the railing to the car platform, or anything?
A. Yes, sir; you mean--I don't understand the question.
Q. You know on a car platform there is an iron railing on the outside and on the inside. Did you take hold of that?
A. Yes, sir; I took hold of the one on the inside.
Q. What did you have in your hands?
A. A parasol, that is all.
Q. Did you let go of that railing?
A. Yes, sir; I can't say, of course, I suppose, as I stepped--yes, I let go of the railing just as I stepped.
Q. Did you get down more than one step?
A. I stepped one step; you know there is only two steps, isn't there, that is one step and then a step to the ground?
Q. How many steps down did you go from the top?
A. I don't remember that.
Q. You took hold of the railing with the left hand and got off on the left-hand side of the train; that is you took hold of the railing next to the car?
A. Yes, sir; there was a kind of brass piece there.
Q. The train was headed west and you got off on the left-hand side of the train toward Cushman park?
A. Yes, the side that faces the gate; I don't remember about the direction. I am always turned around about directions.
Q. What I mean to say is--of course, we know when a train is going out of Lincoln that way is going west?
A. Yes, sir.
Q. And you got off on the left-hand side?
A. Yes, sir.
Q. When you first got out there to the station did you say you went back to the rear end of the coach?
A. No I raised up and looked back to the rear end of the coach, as I...
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