Cousins v. Lake Shore & M.S. Ry. Co.

• Court: Michigan Supreme Court
• Writing for the Court: MONTGOMERY, J.
• Citation: Cousins v. Lake Shore & M.S. Ry. Co., 56 N.W. 14, 96 Mich. 386 (Mich. 1893)
• Decision Date: 25 July 1893
• Parties: COUSINS v. LAKE SHORE & M. S. RY. CO.

56 N.W. 14

96 Mich. 386

COUSINS v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

July 25, 1893

Error to circuit court, Hillsdale county; Victor H. Lane, Judge.

Action by Emma Cousins against the Lake Shore & Michigan Southern Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

C. E. Weaver, (Geo. C. Greene and O. G Getzen-Danner, of counsel,) for appellant.

Guy M Chester, for appellee.

MONTGOMERY J.

The plaintiff was a passenger on the defendant's regular train, and received the injuries which she complains of while attempting to alight from the train at Pittsford. The plaintiff's contention is that the train failed to stop a sufficient length of time to afford reasonable opportunity for getting off; that while attempting to alight with all possible dispatch, and following closely after another passenger, she was thrown to the ground, and received serious injuries. It appears that the plaintiff discovered that the train was in motion while on the platform or in the door of the car. She recovered a verdict of $7,000 and defendant appeals. The assignments of error are numerous, but we shall advert only to those which present questions which are likely to arise upon a new trial.

1. The first error relied upon is the refusal of the learned circuit judge to instruct a verdict for the defendant. We think that, under the circumstances of this case, the defendant was not entitled to this instruction. The law upon the subject ought no longer to be in doubt. It is undoubtedly prima facie negligent for a passenger to attempt to alight from or board a moving train, but it is not in all cases negligence per se to attempt to do so. If one is, by the wrongful act of the carrier, placed in a position where, under a sudden impulse to save himself from serious inconvenience, he attempts to alight from a moving train, where the danger is not imminent, and where persons of ordinary care and caution would make the attempt, it is not necessarily negligent. In such cases it becomes a question for the jury. See Beach, Contrib. Neg. p. 156; Bish. Non-Cont. Law, � 1101; Whart. Neg. � 377; Thomp. Trials, � 1684; 2 Amer. & Eng. Enc. Law, 762; Shannon v. Railroad Co., 78 Me. 52, 2 A. 678; Crisse v. Railway Co., 75 Pa. St. 83; Strand v. Railway Co., 64 Mich. 216, 31 N.W. 184; McCaslin v. Railway Co., 93 Mich. 553, 53 N.W. 724.

2. Error is assigned upon the refusal of the circuit judge to submit the following special questions to the jury: (1) Did the conductor assist a Mrs. Pettyt to alight from the train? (2) Did he wait at that point, to see if other passengers were coming, before starting for the head of his train? (3) Did he walk from that point to the baggage car before giving the signal to the engineer to go ahead? (4) Had the car gone a distance of about 30 feet when Mrs. Cousins stepped off? We think the court was right in refusing to submit these questions. Whatever the finding of the jury may have been thereon, such finding would not have been inconsistent with the general verdict for the plaintiff. It is not the duty of the trial judge to submit mere questions of evidence to the jury. The questions must be so framed as to call for an answer which may be controlling of the main issue. Balch v. Railroad Co., 78 Mich. 655, 44 N.W. 151; Crane v Reeder, 25 Mich. 304, and cases cited in annotated edition. Reliance is placed by defendant's counsel upon Sherwood v. Railway Co., 82 Mich. 374, 46 N.W. 773, but a careful reading of that case will disclose that the main issue was whether the plaintiff attempted to alight while the car was in motion, and the pleadings were so framed as to make that the vital issue in the case. It was held that an affirmative answer to the questions proffered would have demonstrated that the train was in motion when the plaintiff descended the steps to alight, and that, under the pleadings in that case, such a finding would have been inconsistent with the general verdict; but in ...