Foss v. Boston & M. R. Co.

• Decision Date: 25 July 1890
• Citation: 66 N.H. 256,21 A. 222
• Parties: FOSS v. BOSTON & M. R. CO.
• Court: New Hampshire Supreme Court

21 A. 222

66 N.H. 256

FOSS

v. BOSTON & M. R. CO.

Supreme Court of New Hampshire. Strafford.

July 25, 1890.

Exceptions from Strafford county.

Case for injuries in alighting from defendant's train and walking from 500 to 700 feet to the passenger station at Rowley, in consequence of the train having overshot the station. The plaintiff, who was in feeble health, took the defendant's cars at Rochester, N. H., July 31, 1888. having a ticket for Rowley, Mass. Her husband assisted her into the car, which went through, with her valise, which weighed from 15 to 20 pounds, and which she was unable to carry because of her weakness. He then went to Jefferson, the conductor of the train, and told him: "I have seated my wife in the third seat from the front end of the car, [pointing it out,] on the left side, and she has a valise in the seat with her. She is going through to Rowley, and isn't very well, and is not able to lift her valise and get off the cars without assistance, and I wish you would look out for her and see that she has assistance in getting from the cars at Rowley." Jefferson replied that he was not going through himself, but that he would speak to the conductor who would take the train at Conway junction, and "it will be all right." Her husband went into the car and informed the plaintiff what bad passed between him and the conductor, and that she need give herself no uneasiness, as she would be looked out for. The plaintiff proceeded on her journey to Conway junction, and thence with new conductors and new train hands to Rowley without changing cars, and her ticket was punched and taken up by the conductor. The plaintiff's evidence tended to show that at Rowley the train overshot the platform, so that she had to walk back to the station, some 500 to 700 feet. The evidence tended to show, and her own testimony was, that the train did not stop, but. only slowed up, at Rowley. As the train slowed up, the station was called, and she rose up in her seat and stepped out into the aisle. Finding the train still moving, she stepped to the door and spoke to the assistant conductor, Odell, and asked him if the train did not stop so she could get out. He said: "You can't get out now; the train is in motion." She then told him it was very necessary for her to get off at Rowley, and very necessary for her to have her baggage. The train was stopped, and a brakeman came and took her baggage, and he and Conductor Odell or some one else helped her from the train. When the conductor or brakeman took her baggage out of the car, he said: "Come, hurry up and get off." With their assistance she was jumped down a distance of 22 inches from the lower step of the car to the ground, at a place where there was no platform or any convenience for alighting. She claimed to have received an injury to her side by being compelled to alight in this manner, and said that she felt something give way in her side when she jumped down. She also claimed to have received an injury to her health by being compelled to alight in the manner and at the place described, and by the fatigue induced by walking back to the platform. Her testimony was that at that time she was unable to walk more than six or eight rods; that she had not walked more than six or eight rods at one time for a year before that time; and that walking made her breathe short, and caused pains in her side and lungs. She testified that the ground she was obliged to walk upon in getting to the station was rough, and that it was very hard walking, and made her very tired. The plaintiff did not claim that she said any thing to the employes about her feeble condition further than what was said to the conductor at Rochester, or that she objected in any way to taking the jump down from the car step, or tell them that she was in such a state of health or feebleness as to make it hazardous for her to step down, until she was on the ground, but she testified that, being seated on the opposite side from the depot, she did not see it when she passed it, and, when she was directed to leave the car, she supposed that she was to alight upon the platform; that upon ascertaining that she had been carried past the depot, and being much excited by the situation, and told to hurry up, she did not observe the distance she would be compelled to walk until she had left the car; and as soon as she had discovered the situation she said, "Havel got to walk back as far as that? I have not walked so far for a year,"—to which the reply was, "Yes, that is the station, and look out you don't get under the cars," and the train started on immediately. Upon this evidence the defendant moved for a nonsuit. The motion was denied, and the defendant excepted.

The defendant requested the court to charge the jury as follows: "If the plaintiff was sick or from any cause unable to take care of herself, she should have been provided with proper attendants. If she was in such a condition of health that she could not alight at that place, she, knowing her condition, and the railroad employes being ignorant of it, should have notified them of it, and have them set back the car to the platform. She had no right to get off there at the risk of the company, and cannot recover for any injuries she then received. The law does not contemplate that it is any inconvenience, loss of time, expense, or injury to a person in sufficiently good health to travel without an attendant, to be carried beyond the platform by the overshooting of a train so far as to be obliged to walk four or five hundred feet over a walk of not extraordinary difficulty. If she was unable to lift her baggage, as she says she was, she should have had it checked; and this was still more her duty because she said she did not need it till she reached her place of destination. In the case when, as she claims, the train overshot the platform, the railroad discharged all its duty to the plaintiff when its employes helped her alight without objection on her part. As to the case described by her, there being no unusual change at that point, her injury resulted not from any unusual danger incident to alighting at that point, but to the undisclosed condition of her health. As there is no pretense or claim that any of the defendant's servants were informed by her or had any intimation from any other source that she was suffering from any physical disability till after she got off the train, they had a right to presume that she was capable of getting off the car with the aid of two of the employes,...