Elliott v. Chicago, R. I. & P. R. Co.

• Decision Date: 28 April 1969
• Docket Number: No. 45476,45476
• Citation: 454 P.2d 124,203 Kan. 273
• Parties: Treva ELLIOTT, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 124

454 P.2d 124

203 Kan. 273

Treva ELLIOTT, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.

No. 45476.

Supreme Court of Kansas.

April 28, 1969.

Syllabus by the Court

1. In a negligence action against a railroad company the plaintiff was injured by a fall in disembarking from a railway passenger car while attempting to prevent injury to her three and one-half year old, grandson, because the trainmen failed to put a step stool in place or otherwise assist the grandchild down the steps, and upon trial the plaintiff recovered a verdict upon which judgment was entered. On appellate review it is held: The evidence made a submissible case for the jury, and the defendant was not prejudiced by any of the rulings made by the trial court.

2. In ruling on a motion for a directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds coul reach different conclusions thereon, the motion must be denied and the matter submitted to the jury.

3. The matter of contributory negligence is ordinarily a question for the jury and is to be determined by the court only when the facts are such that reasonable minds could not differ.

4. In the exercise of the highest degree of care, the circumstances of the particular case determine whether the employee of a common carrier is under a duty to assist a passenger in alighting. The duty to assist a passenger in boarding or alighting from the conveyance may arise when the surrounding circumstances are such as to suggest to the employee of the carrier the necessity of assistance.

5. There may be such an identity of interest between an infant non sui juris and its lawful custodian that the omission of a duty owing to the child, which results in injuries to the custodian who attempts to prevent or mitigate injuries to the child arising from the omission, can be the basis of an action for negligence by the custodian.

6. The custodian of an infant non sui juris has the duty to use reasonable care to protect the child against known hazards. That is, the conduct of the custodian to use reasonable care must be measured in relation to the age and intelligence of the infant under the particular circumstances involved.

7. When the negligent act of another places an infant in a position of danger which requires immediate and rapid action by the infant's custodian, and the custodian has insufficient time to deliverate as to the better course to pursue, he is not held to the strict accountability required of one situated under more favorable circumstances, and is not guilty of contributory negligence as a matter of law if he does not exercise the greatest prudence or best judgment or choose the wisest of safest course in attemtping to avoid the perils of the situation with which he is suddenly confronted.

8. The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.

9. The natural and probable consequences of a negligent act are those which human foresight can anticipate because they happen so frequently they may be expected to recur.

10. Where the defendant in an action for damages for personal injuries, founded on negligence, is charged with various acts of negligence, and the jury in answer to a special question submitted specifies the act or acts of negligence of which it finds the defendant guilty, the defendant is absolved from all alleged acts of negligence not included in the answer; but this rule has no application where the question posed to the jury calls for a singular answer, and the jury is required to choose which of the acts of negligence charged most nearly answers the limited question.

11. An emergency instruction taken verbatim from PIK 8.81 was properly given to the jury, under the circumstances presented by the record, and correctly states the law.

Clayton M. Davis, Topeka, argued the cause, and Harry W. Colmery, Mark L. Bennett, Wilbur G. Leonard, Robert A. McClure, Jerry W. Hannah, Frank C. Sabatini, Gerald J. Letourneau, John E. Wilkinson, Mark L. Bennett, Jr. and John E. Davis, Topeka, were with him on the brief, for appellant.

Albert L. Kamas, Wichita, argued the cause, and Richard A. Render, Wichita, and Jack O. Bowker, McPherson, were with him on the brief, for appellee.

SCHROEDER, Justice.

This is a damage action for personal injuries claimed by the plaintiff to have been sustained when alighting from the defendant's standing passenger train at its Hutchinson, Kansas, station. The first trial in June, 1967, resulted in a hung jury. The second trial in October, 1967, resulted in a jury verdict for the plaintiff in the sum of $61,000, upon which judgment was entered and from which appeal has been duly perfected, presenting the issues hereafter discussed.

On the 6th day of August, 1963, Treva Elliott (plaintiff-appellee) was sixty-three years of age and resided in McPherson, Kansas. She decided to take her three and one-half year old grandson, Timothy, for his first train ride. She purchased a round trip ticket from McPherson to Hutchinson, and discovering the train would be late, telephoned Timothy's mother to tell her of the delay. Timothyhs mother came to the station with her sister and snapshots were taken of the travelers. Timothy's mother and aunt left before the train arrived.

When the defendant's train No. 39, westbound from Kansas City, arrived at McPherson, Mrs. Elliott asked the ticket agent which car she and Timothy would be riding in, and upon being told, Mrs. Elliott snapped a picture of Timothy in front of the steps of the car they rode in as a memento of his first train ride. (This snapshot is presented in the record as plaintiff's 'Exhibit No. 2,' to which reference will hereafter be made.) After the picture was taken trainmen opened the door, placed a step stool on the platform and helped Mrs. Elliott and Timothy aboard the train. Another lady, Mrs. Clinton Brown, with small children also boarded the train at McPherson.

After the train arrived at Hutchinson, the plaintiff and her grandson left their seats, went back to the vestibule, turned left and started down the steps to the station platform. Timothy was ahead of the plaintiff when she observed that the step stool was not on the platform below the bottom step of the car. She testified:

'Well, Timmy was far enough down ahead and I saw that he was going to take that step, and there was no step stool there and it was too far for him to step and-' Two trainmen were standing on the platform near the point where a step stool would normally have been placed. However, the record does not indicate the extent to which they were offering assistance to those departing from the train. Thus, while the plaintiff was on the first or second step and Timothy was on the third or fourth, she reached out for Timothy, caught hold of him and pushed him back. In so doing the plaintiff was caused to slip and fall, sliding down the steps on her back, resulting in the injuries for which this suit is brought. Timothy did not fall and was still standing on the steps after the accident.

The steps of the railroad car in question were dry and there was no foreign material which caused her to slip and fall. The car was standing perfectly still.

The plaintiff waited in the depot at Hutchinson a short time and returned to McPherson on the eastbound train No. 40 with her grandson, Timothy.

At the close of the plaintiff's evidence the trial court overruled the defendant's motion a directed verdict.

The defendant's evidence disclosed that a conductor and a brakeman were standing on the station platform on either side of the car steps. The brakeman testified in his experience a step stool was always used to assist passengers to descend from the steps of cars of the type shown in plaintiff's Exhibit No. 2 to the platform. A conductor who worked on train No. 39 west of Pratt on August 6, 1963, confirmed that he would always use a step stool for passengers getting on or off a car of the type shown in plaintiff's Exhibit No. 2. Further evidence of the defendant disclosed the distance of the platform at Hutchinson to the bottom of the steps of passenger cars varies between eleven and fourteen inches, depending upon the type of car and the point on the platform where the car stopped. An agent-yardmaster for the defendant confirmed that a step stool should be used to assist passengers on and off cars of the type shown in plaintiff's Exhibit No. 2.

A motion for a directed verdict at the close of all the evidence interposed by the defendant was overruled, and in due course the jury was instructed, its verdict returned, and judgment entered for the plaintiff in accordance therewith.

The Chicago, Rock Island and Pacific Railroad Company (defendant-appellant) hereafter referred to as the appellant, contends the trial court erred in denying its motion to dismiss at the close of the appellee's evidence. This is a challenge to the sufficiency of the appellee's evidence to make a submissible case for the jury. In ruling on a motion for a directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. (Williams v. Benefit Trust Life Ins. Co.,195 Kan. 579, 408 P.2d 631; and Gardner v. Pereboom, 197 Kan. 188, 416 P.2d 67.)

The same rule is applied where it is contended that a party is contributorily negligent as a matter of law. The question of...