Gannon v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 24 October 1908
• Parties: M. V. GANNON, Administrator of the Estate of PATRICK JOSEPH KILEY, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Iowa Supreme Court

117 N.W. 966

141 Iowa 37

M. V. GANNON, Administrator of the Estate of PATRICK JOSEPH KILEY, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

October 24, 1908

REHEARING DENIED TUESDAY, JANUARY 26, 1909.

PLAINTIFF as administrator of the estate of one Kiley, instituted this action to recover damages to decedent's estate resulting from the death of decedent from injuries received through the negligence of defendant's employees while deceased was a passenger attempting to get on board the train of defendant on which he was entitled to transportation. At the conclusion of the evidence, the court sustained a motion to direct a verdict for the defendant, and judgment for the defendant was entered accordingly. From the ruling on the motion, and from the judgment entered, the plaintiff appeals.--Reversed.

Appeal from Scott District Court.--HON. A. J. HOUSE, Judge.

Reversed.

Lane & Waterman and M. V. Gannon, for appellant.

Carroll Wright, J. L. Parrish, J. H. Johnson and Cook & Dodge, for appellee.

OPINION

MCCLAIN, J.

There is evidence in the record from which the jurors might have found, if the case had been left to their determination, that decedent and his wife, being passengers on a train of defendant, and riding in a Pullman car, dismounted from the train at Davenport for the purpose of resting themselves by walking on the platform during such time as the train might be stopped there, having the assurance of the Pullman conductor that there would be a stop of at least ten minutes that, at the expiration of five minutes, the train was started without such signal or warning as to enable them with reasonable diligence to get up the steps of their car before the train was in motion; that Mrs. Kiley mounted the steps in safety, and the Pullman porter mounted after her, while the decedent, holding on the hand-hold with his left hand, ran along with the train, attempting to mount with the assistance of the porter; and that, after thus running for twenty-five or thirty feet, deceased lost his footing, and was dragged still further, when his body struck against the girder of a bridge over a street crossing and he received injuries which resulted in his death. While decedent was thus being dragged along, Mrs. Kiley appealed to the Pullman porter to stop the train, and, after a second appeal from her, he did so by pulling the cord operating the air brakes; but, before the train stopped in response to this action of the porter, the injuries to deceased had occurred. The only questions we need consider in determining the correctness of the action of the court in directing a verdict for the defendant are whether there was any evidence of negligence on the part of defendant's servants or employees causing the injury to deceased, and whether there was any evidence that deceased was not guilty of contributory negligence.

I. Deceased continued to be a passenger while temporarily on the station platform, intending to continue his journey on the train, having descended from the train for a temporary and proper purpose, that of exercise and relief from the fatigue of travel while the train should be stopped. Parsons v New York C. & H. R. R. Co., 113 N.Y. 355 (21 N.E. 145, 3 L. R. A. 683, 10 Am. St. Rep. 441); Dodge v. Boston & Bangor Steamship Co., 148 Mass. 207 (19 N.E. 373, 2 L. R. A. 83, 12 Am. St. Rep. 541). "We think the weight of authority, reason and custom all require us to hold that where a passenger, without objection by the company or its agents, alights at an intermediate station, which is a station for the discharge and reception of passengers, for any reasonable and usual purpose, like that of refreshment, of sending or receipt of telegrams, or of exercise by walking up and down the platform, or the like, he does not cease to be a passenger, and is justified in the belief that the company is exercising due care for his safety." Alabama G. S. R. Co. v. Coggins, 88 F. 455, 458 (32 C.C.A. 1). If with knowledge that the passenger thus on the platform is intending to continue his journey on the train it is started without reasonable warning and opportunity for him to safely reenter the car, the carrier is negligent in performing its contract of transportation, and is liable for the natural consequences of such negligence, unless the passenger has...