Dahl v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.
| Decision Date | 07 January 1929 |
| Docket Number | 5544 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Lowe, J.
Reversed.
McGee & Goss and John E. Palmer, for appellant.
When the defendant furnished an alighting place or platform only 10 inches down from the bottom of the step of its passenger train, it had performed its full duty in the furnishing of a safe place to alight. S.A. & A.P.R. Co. v. Wiuvar (Tex.) 257 S.W. 667.
"The duty resting on the railroad company rises no higher than to make the company make and keep its stations safe for persons exercising ordinary care." Twersky v. Pennsylvania R. Co. (Pa.) 104 A. 63; C.M. & St. P.R.R. Co. v Youngers, 5 F.2d 784.
Farrell v G.N.R. Co. (Minn.) 9 L.R.A.(N.S.) 1113, 111 N.W. 388; Kellogg v. Smith (Mass.) 61 N.E. 138.
Sinkler & Brekke, for respondent.
. Faubian v. Soo R. Co. 45 N.D. 269, 177 N.W. 371.
"It is the duty of a common carrier of passengers to provide and maintain safe alighting places, and it must respond in damages to a passenger, who, without contributory fault on his part, is injured by a negligent failure to perform this duty." McDermott v. Chicago R. Co. 52 N.W. 87.
"When the station platform is so much below the level of the lower steps of the car as to make it unsafe for the passengers to alight without an intermediate stool or step, it is the duty of the carrier to provide such step." Toledo R. Co. v. Wingate, 42 N.E. 477; Merryman v. Chicago & G.W.R. Co. 113 N.W. 357.
"A carrier is required to furnish a reasonably safe place for a passenger to alight, or where there is no platform, to assist the passenger to alight." Service v. Ann Arbor R. Co. 135 N.W. 343; Werner v. Chicago & N.W.R. Co. 81 N.W. 416.
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.
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 5 feet and 5 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 eyesight?
A. Why, I cannot recognize people way over in the seats there.
Q. Anything wrong with your eyesight?
A. I am a little nearsighted.
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. ...
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