Dahl v. Minneapolis, St. P. & S. S. M. Ry. Co.

Decision Date07 January 1929
Docket NumberNo. 5544.,5544.
Citation57 N.D. 538,223 N.W. 37
CourtNorth Dakota Supreme Court
PartiesDAHL v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.
OPINION TEXT STARTS HERE
Syllabus by the Court.

In a personal injury action, where it appears affirmatively from the uncontradicted testimony of the plaintiff that the proximate cause of the injury was the plaintiff's own negligence, a motion for a judgment notwithstanding the verdict should have been granted by the trial court.

Additional Syllabus by Editorial Staff.

In action for injuries to passenger sustained in alighting from passenger coach at station, plaintiff's own testimony that in stepping from car she failed to look to see whether portable step had been placed for her to step on, and that she was injured because of absence of such step, held to establish that her own negligence caused injury, precluding recovery as matter of law.

If injury to passenger arises from her want of ordinary or proper care, carrier is not liable, even if it is also negligent.

Appeal from District Court, Ward County; Jno. C. Lowe, Judge.

Action by Katherine Dahl against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for plaintiff, and from an order overruling defendant's motion for judgment notwithstanding the verdict or for a new trial, defendant appeals. Reversed and rendered.McGee & Goss, of Minot, and John E. Palmer, of Minneapolis, Minn., for appellant.

Sinkler & Brekke, of Minot, for respondent.

BURKE, J.

This is an action for personal injury. The plaintiff claims that on the 12th day of December, 1925, she purchased a ticket at Minot, N. D., to Burlington, N. D.; that the depot platform at Burlington was several inches below the lower step of defendant's passenger coach on which plaintiff was riding; that it was the duty of defendant to furnish, for the use of passengers, in order to make alighting from said passenger train secure and safe, a stool or step in addition to the regular step attached to the said passenger coach, and that it was unsafe to alight from said coach to said platform without the use of such stool or step; that no stool or step was furnished, and that plaintiff was compelled to jump therefrom; that she fell with great violence to the platform and sustained injuries by reason of the defendant's negligence in not furnishing such stool or step. The defendant denies any negligence, and alleges that, if the plaintiff sustained any injury at such time, such injury was directly and solely caused by plaintiff's own negligence and want of care.

The cause was tried to a jury, and a verdict for $1,000 was rendered, upon which judgment was duly entered. At the close of the testimony the defendant moved the court to direct a verdict or for dismissal of the action on the ground and for the reason that there was an entire failure of proof of any negligence on the part of the defendant, and that the proof affirmatively shows that if the plaintiff suffered any injury the same was due to her want of care and her own contributory negligence. The motion was denied. After the verdict, the defendant moved for a judgment notwithstanding the verdict or for a new trial upon the same grounds, which was overruled, and the defendant appeals from the said judgment and from the order overruling the motion for judgment notwithstanding the verdict or for a new trial.

[2] There are just two questions involved in the case, viz.: First, was there any negligence on the part of the defendant; and, second, does it affirmatively appear from the plaintiff's testimony that her own negligence was the cause of her injury? The plaintiff testified that she boarded the train at Minot in the afternoon of the 12th day of December, 1925, for Burlington, about seven or eight miles from Minot; that no one got off at the town of Burlington except herself. She further testifies, in substance, as follows:

“I lived at Burlington and went to Minot frequently; I never got off a train before without a stool. When the train stopped at Burlington I, as usual, got up to go out, they stop so you got to move fast to get off; when I was getting down to get my foot off the car I fell. I felt I was going down further than usual, and I realized there was no step, and I went forward in between the platform and rails. There was a brakeman standing there at the time; he did not do anything when I was falling; I had my hand already on the ground; he grabbed this arm and he pulled me up that way to keep from striking my face on the platform. At the time I commenced to alight from the train he did not offer any assistance.

Q. How far below, beneath the lower step of the train is the platform? A. * * * I measured from the lower step down to the coach where the ties are and that was ten or twelve inches. * * * I measured by my knee and it came up to about here, standing up.

Q. The step came up to where I am holding my finger upon your leg from the step down to the platform, isn't that true? A. Yes, that is the way it was. I had no tape line or measure with me, but I stood and measured this way. * * * I think I am about five feet and five inches, and weigh 187 pounds; * * * I certainly did fall. I should say I was hurt. I was so stunned for a few minutes I did not know what happened to me.

Q. Prior to this time of the accident, Mrs. Dahl, what was the condition of your health? A. It was fine at that time.

Q. Were you strong and able bodied? A. I should say I was.”

On cross-examination:

“Q. Anything wrong with your eye-sight? A. Why, I cannot recognize people way over in the seats there.

Q. Anything wrong with your eye-sight? A. I am a little near sighted.

Q. You can see the floor in front of you? A. Yes, sir, certainly.

Q. You can see an ordinary stool, like they use? A. Certainly could.

Q. Did you look? A. Yes, sir, I looked.

Q. Why didn't you tell your counsel so when you first told us about this? A. Why, what do you mean?

Q. You told your counsel here in describing this accident that you felt yourself falling. A. I put my foot down and did not strike the stool.

Q. Did you see the stool? A. There was no stool there.

Q. You looked down and saw what you were doing and put your foot down? A. Yes.

Q. And then felt yourself falling? A. I felt myself going down where the stool should have been and there was no stool.

Q. Did you look? A. Certainly I looked down and there was no stool.

The Court: And did they assist you in getting off on other occasions?

Mr. Goss: Same objection, as to what they did. She has admitted she looked and did not see any stool and stepped down.

The Court: Overruled.

Q. Did they assist you on other occasions? A. Yes, I have had them take hold of my arm.

Q. You did not wait for them to assist you? A. I say I stepped out.

Q. You did not wait for them to assist you? A. I came down, I had to come.

Q. You did not wait for the brakeman to assist you or make any attempt to assist you? A. I was not making him assist me.

Q. You did not wait for the brakeman to assist you or make any attempt to assist you? A. I came down out of the car.

Q. Is that all the way you can answer it? A. Yes, I came down out of the car.”

Mrs. Dahl is later recalled for further direct examination. She testified as follows:

“Q. Mrs. Dahl, when you were getting off the train there when was it that you first knew that there was no stool there? A. When my foot coming down did not strike it, I did not feel those places and I was going further down than I usually do when I want to reach that step.”

On cross-examination:

“Q. So you did not look to see if the step was there before you stepped? A. I looked after I was down, I could not see anything.

Q. That is not the question-read the question.”

The question was repeated, and the witness answered: “A. No, I did not look before I stepped.”

This is all the evidence there is on the part of the plaintiff to establish negligence on the part of the defendant. There is no evidence that there was anything wrong with the platform, and while the plaintiff testified that when she stood on the step she looked down and saw no stool, that she did not call for assistance, that she was a strong able-bodied woman at the time, that she could see, that she looked down and saw no stool there, that she stepped between the platform and the car and fell, later she is put back on the stand and testified that she did not look to see if there was a stool there until after she was down. This she makes quite emphatic when the question is repeated to her and says: “No, I did not look before I stepped.”

The only claim of negligence in the complaint is that the depot platform kept and maintained by the defendant for passengers to alight on from the passenger trains (at Burlington) was several inches below the lower step of the defendant's passenger coach, and the defendant failed to furnish a stool to assist the passengers in alighting, and that it was a dangerous place to alight, without a stool.

It will be noted that the plaintiff, in her complaint, measures the distance between the lower step and the platform in inches. According to her testimony it was 10 or 12 inches from the lower step down to the ties, which agrees with the allegation in the complaint that the platform was several inches below the lowest step.

According to the testimony of A. W. Vogal, the lower step to the rail is 18 inches and from the rail to the top of the platform 8 inches. This also is an estimation, but it is all that this court has to go by. If the station agent is right, it would be only 10 inches from the lower step of the car to the platform and 8 inches from the top of the platform down to the rail, and considerably less than that by the testimony of the plaintiff, who testified that it was 10 or 12 inches from the lowest step down to the ties. Both statements are in accord with the allegations of the complaint.

In the case of Finlayson v. Yellow Cab Co., 56 N. D. 407, 217 N. W. 662, this court quotes with approval from the case of ...

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