Hall v. N. Pac. Ry. Co.

• Decision Date: 12 March 1907
• Parties: HALL v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

16 N.D. 60

111 N.W. 609

HALL

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

March 12, 1907.

Syllabus by the Court.

A complaint in an action to recover damages for negligence must state the act of negligence complained of, and the plaintiff must recover, if at all, upon the particular act of negligence stated in the complaint.

Evidence examined, and held to be sufficient, under the rule heretofore established by this court, to require a submission to the jury of the question of defendant's negligence as alleged in the complaint.

It was properly a question for the jury to say under all the evidence whether or not plaintiff was guilty of negligence contributing to the injury complained of.

Appeal from District Court, Eddy County; E. T. Burke, Judge.

Action by Vannie A. Hall against the Northern Pacific Railway Company. Judgment for defendant, and plaintiff appeals. Reversed.

S. L. Glaspell, for appellant. Ball, Watson & Young, for respondent.

FISK, J.

Plaintiff brought this action to recover damages for alleged negligence of defendant resulting in injuries to her while in the act of alighting from one of defendant's passenger trains at Sheyenne, in this state, in April, 1904. At the close of the evidence the trial court, on defendant's motion, directed a verdict in defendant's favor, and this appeal is from the judgment entered pursuant thereto.

Appellant assigns as error the ruling of the court in directing such verdict. The evidence is incorporated in a statement of case duly settled, from which we are required to say, according to the well-settled rule in this court, “whether there is any competent evidence in the record reasonably tending to sustain the plaintiff's cause of action alleged in her complaint,” and in determining this question we are to disregard all conflicts in the evidence and construe the same most favorably to the plaintiff, and, “if the evidence is such that intelligent men may fairly differ in their conclusions thereon upon any of the essential facts of the case,” it is our duty to reverse the judgment and order a new trial. Cameron v. G. N. Ry. Co., 8 N. D. 124, 77 N. W. 1016;Vicery v. Burton, 6 N. D. 253, 69 N. W. 193;McRea v. Bank, 6 N. D. 353, 70 N. W. 813; Pirie et al. v. Gillitt et al., 2 N. D. 255, 50 N. W. 710;Zink v. Lahart, 15 N. D. ---, 110 N. W. 931. Plaintiff in her complaint, after alleging the fact that the defendant is a railroad company and engaged as a common carrier of passengers between Jamestown and Leeds, and alleging that she was a passenger on defendant's train on April 6, 1904, bound for Sheyenne, states her cause of action as follows: “That on said trip and on said date she conducted herself in due care and caution as a railroad passenger, but the defendant, by its negligence and by the negligence of its employés, the conductor and engineer of said train, committed gross negligence in the performance of their duties in carrying this plaintiff as a passenger, to wit, that said train stopped at the station of Sheyenne that date to permit this plaintiff and other passengers to alight from said train, the said station of Sheyenne being the point of their destination. This plaintiff alleges that upon the arrival at the station of Sheyenne aforesaid the train was stopped opposite the station house, and adjacent to the platform between the station house and the railway track, and the announcement was made by the servants in charge of said train that the station, Sheyenne, was at hand; the train being at a standstill. At that point this plaintiff attempted to alight, using all due care in her movements. While stepping down the steps of the car platform to reach the station platform, the train was started. As the plaintiff was in the act of stepping off, the train was started by the servants of the defendant with great violence and shock, throwing the plaintiff violently at full length upon her side and body upon the platform, so as to cause her great pain and injury,” to her damage, etc. The answer admits defendant's corporate capacity, and that plaintiff was a passenger upon its train as alleged, but denies the other matters alleged in the complaint, and it alleges that, if plaintiff was injured, she contributed to such injury by her own negligence in attempting to alight from the train while the same was in motion. It will be seen that the particular negligence relied upon by the plaintiff in her complaint is the act of the defendant, through its servants, in starting the train while plaintiff was in the act of stepping from the car to the depot platform. The allegation that the train was started “with great violence and shock” merely goes to the degree of defendant's culpable act. We are to determine, therefore, whether there is any evidence in the record reasonably tending to support this allegation; for it is well settled that plaintiff's right to recover must depend upon the fact as to whether or not she has established her cause of action as alleged. As counsel for defendant very properly assert, she cannot recover upon a claim of negligence not pleaded. Flint, etc., Ry. Co. v. Stark, 38 Mich. 714;Manuel v. Railway Co., 10 N. W. 237, 56 Iowa, 655;Carter v. Railway Co., 21 N. W. 607, 65 Iowa, 287;Miller v. Railway Co., 23 N. W. 756, 66 Iowa, 364;Pennington v. Railway Co., 51 N. W. 634, 90 Mich. 505;Cowan v. Muskegon Ry. Co., 48 N. W. 166, 84 Mich. 583;Price v. Railroad Co., 72 Mo. 414;Ill. Cent. Ry. Co. v. Slatton, 54 Ill. 133, 5 Am. Rep. 109;Ohio, etc., Ry. Co. v. Stratton, 78 Ill. 88; C., B. & Q. Ry. Co. v. Bell, 112 Ill. 360;Toledo, etc., Ry. Co. v. Foss, 88 Ill. 551;Chicago, etc., Ry. Co. v. Rayburn, 38 N. E. 558, 153 Ill. 290.

Counsel for respondent earnestly contend, however, that there is no evidence from which a jury could find that defendant was guilty of the negligent act charged; and hence they insist that the action of the trial court in directing a verdict must be sustained. We think counsel are mistaken in their contention that plaintiff alleged one cause of action or ground of negligence, and sought to prove another. As before stated, the particular act of negligence complained of consists in starting the train while plaintiff was in the act of stepping therefrom, but counsel seem to think that plaintiff's proof at the trial, if it proved anything, merely tended to show that defendant was negligent in not giving plaintiff sufficient time in which to make her egress from the car, and that she relies upon this ground for recovery rather than the ground pleaded. It is true that much of plaintiff's testimony had but a remotebearing upon the real issues involved, but we are of the opinion, from a careful reading of the testimony, that there was sufficient evidence introduced bearing upon the issues raised by the pleadings to require a submission of the case to the jury. The plaintiff testified: “The train was not moving before I attempted to step off. It was not moving before I moved one of my feet to step on the platform. As near as I can tell and remember, it was at the moment when I had lifted a foot to step off, and the other foot was on the steps, that the train started. Q. Did the train move at all until after you fell? A. Yes, sir, the train starting is what threw me. It was the motion of the train that caused me to fall. Q. As I understand, then, at the present time you say that the cause of your accident was really because of the fact that you were hindered in passing out of the door by the passengers standing in the aisle? A. Partly that.”

Henry Flaskrood, a witness for the plaintiff, testified: “Saw Miss Hall fall on the platform. When the train stopped, I was standing on the platform. Q. What did you see on the platform? A. Three ladies were standing in...