Doggett v. Chicago, B. & Q. Ry. Co.

• Court: United States State Supreme Court of Iowa
• Citation: 112 N.W. 171,134 Iowa 690
• Parties: LEONARD DOGGETT, by his next friend, MARY DOGGETT, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant
• Decision Date: 06 June 1907

112 N.W. 171

134 Iowa 690

LEONARD DOGGETT, by his next friend, MARY DOGGETT,
v.
CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

June 6, 1907

Appeal from Jefferson District Court.--HON. C. W. VERMILLION, Judge.

ACTION to recover damages for personal injuries alleged to have resulted to plaintiff from being ejected in a negligent manner from the caboose of a freight train of defendant, on which he was riding without defendant's consent and as a trespasser. There was a verdict of $ 500 in plaintiff's favor, and from the judgment thereon defendant appeals.

Reversed.

Leggett & McKemey, for appellant.

Crail & Crail and Rollin J. Wilson, for appellee.

MCCLAIN, J. WEAVER, C. J., concurring in part and dissenting in part.

OPINION

MCCLAIN, J.

The plaintiff, seventeen years of age, with a companion, boarded the way car of defendant's freight [134 Iowa 691] train about a mile west of Fairfield, with the intention of riding into town without paying any fare. The evidence tends to show that the conductor of the train told them the train would not stop at Fairfield, and ordered them to get off, and, in attempting to do so while the train was in motion, plaintiff, who was somewhat incapacitated by having a crippled leg, fell, breaking his crippled leg and receiving other injuries.

I. The jury was instructed, with reference to the act of the conductor in ordering plaintiff to get off the car while the train was in motion, that, if the train was moving at so low a rate of speed as that a person in possession of ordinary use of his limbs and of ordinary activity could have alighted therefrom in safety, "and that said conductor did not know, and in [112 N.W. 172] the exercise of ordinary care could not under the circumstances have known, that plaintiff was crippled and did not possess the ordinary use of his legs, and the injury to plaintiff was caused by his crippled condition, and not by the speed of the train, then the defendant would not be chargeable with negligence on account of the acts of the conductor." Bearing in mind that the plaintiff was confessedly a trespasser, to whom the defendant owed no affirmative duty, we think this instruction was plainly erroneous. It was only so far as the conductor had knowledge of an injury likely to result from compelling the plaintiff to get off the train while in motion that defendant would be chargeable with the consequences of the conductor's act. Earl v. Chicago, R.I. & P. R. Co., 109 Iowa 14, 79 N.W. 381; Thomas v. Chicago, M. & St. P. R. Co., 93 Iowa 248, 61 N.W. 967; Clemans v. Chicago, R.I. & P. R. Co., 128 Iowa 394, 104 N.W. 431; Cleveland C. & C. R. Co. v. Terry, 8 Ohio St. 570.

The rule that the conductor should have acted with reference to what might have been known to him, in the exercise of reasonable care, with reference to plaintiff's condition, might have been applicable if plaintiff, having [134 Iowa 692] rightfully entered upon the train, was being ejected for some misconduct on his part which justified the conductor in ejecting him; but, being from the first a trespasser the conductor owed him no affirmative duty. The rule as to the care required in ejecting a trespasser is not the same as that which applies in case of the ejection of one who has been rightfully on the train. Earl v. Chicago, R.I. & P. R. Co., supra. In the case last cited it was said that, to render the railroad company liable under such circumstances the action of the conductor must be wanton and willful, and we have no inclination to modify the rule announced in that case; but it is sufficient for the present case to say that the instruction charging the conductor with the affirmative duty of ascertaining whether plaintiff was a cripple before putting him off the train was erroneous. We think the instruction charging the conductor with the exercise of ordinary care in putting plaintiff off the train, and saying that in doing so he was charged with what he knew, or in the exercise of ordinary care should have known, as to the danger of putting a person off a moving train, was correct. Even as to trespassers, the conductor should take into account that which an ordinarily prudent person would know might be the probable consequences, in view of the speed of the train, of causing a person to alight therefrom. Johnson v. Chicago, St. P., M. & O. R. Co., 123 Iowa 224, 98 N.W. 642.

An instruction asked for plaintiff, and refused, to the effect that to charge defendant the injury must have been the result of the negligent act of the conductor, in view of the knowledge he had of plaintiff's condition, was sufficiently covered by an instruction given, and it was not error to refuse it.

II. In one of the instructions given, the jury were directed to take into account the age, experience, and physical infirmity of the plaintiff in determining whether he was guilty of contributory negligence in jumping off the train under the circumstances. [134 Iowa 693] So far as physical infirmity was concerned, this instruction was, no doubt, correct, for while the conductor was not bound to take into account plaintiff's infirmity, unless he had knowledge thereof, yet, on the other hand, in determining whether plaintiff was negligent, the jury was justified in taking that fact into consideration. Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570. But in so far as the instruction allowed the jury to take into account the plaintiff's age and experience, we think that it was erroneous. The manifest purpose of the instruction was to advise the jury that they might find the plaintiff, on account of his immaturity of age and want of experience, to be free from contributory negligence. The evidence showed plaintiff to have been over seventeen years of age at the time of the accident, and there is nothing to indicate that he did not possess the discretion which is usually possessed by persons of that age; nor is there anything to indicate that he did not by reason of exceptional want of opportunity know that it was dangerous to jump from a moving train. Unless, therefore, the mere fact of his age was in law sufficient to justify a finding by the jury that he was not required to use the same care as ordinary persons are required to use, it was error to instruct the jury that they might take into account his age in determining the question of his contributory negligence. We suppose it would hardly be contended that, if plaintiff had been over twenty-one years of age, it would have been competent to tell the jury they might take his age into account. There must be some limit in law as to what may be considered in excusing acts which on...