Hall v. Northern Pacific Railway Co.

• Decision Date: 12 March 1907
• Court: North Dakota Supreme Court

111 N.W. 609

16 N.D. 60

VANNIE A. HALL v. NORTHERN PACIFIC RAILWAY CO

Supreme Court of North Dakota

March 12, 1907

Appeal from District Court, Eddy County; Burke, J.

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

Reversed.

Judgment reversed and a new trial ordered.

S. L Glaspell, for appellant.

Where the evidence is in doubt, or in conflict, or when different inferences may be drawn from undisputed evidence, the suit should be submitted to the jury. Cameron v. Great Northern R. Co., 8 N.D. 124, 77 N.W. 1016; Hove v Chicago & N.W. Ry. Co., 62 Wis. 666; Detroit & Milwaukee Ry. Co. v. Steinberg, 17 Mich. 99; Sioux City & P. Ry. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Pirie v. Gillitt, 2 N.D. 255, 50 N.W. 710; Williams v. Northern Pacific Ry. Co., 3 N.D. 168, 14 N.W. 97; Slattery v. Donnelly, 1 N.D. 264, 47 N.W 375; Falk Brewing Co. v. Millenz Bros., 5 Dak. 136; Finney v. Northern P. Ry. Co., 3 Dak. 270, 16 N.W. 500; Knight v. Towles, 62 N.W. 964; Matton v. Fremont, V. & M. V. R. Co., 60 N.W. 740; Bates v. Fremont V. & V. R. Co., 57 N.W. 72; Chicago City Ry. Co. v. Nelson, 74 N.E. 458; State v. Johnson, 103 N.W. 565.

A carrier must allow his passengers a reasonable time to get on and off. 2 Sherman & Redfield on Negligence (4th Ed.), Sec. 508; Chicago, B. & Q. Ry. Co. v. Landauer, 54 N.W. 976; Leggitt v. Western Ry. Co., 21 A. 96, 143 Pa. 43; Lloyd v. Hannibal R. Co., 53 Mo. 509; Kellar v. S. C. & St. P. R. Co., 6 N.W. 486; Kennon v. Vicksburg S. & P. R. Co., 26 So. 466; Nichols v. Dubuque & D. R. Co., 28 N.W. 44.

On motion for directed verdict the court is bound to construe the evidence most favorably to the plaintiff. Colgrove v. N.Y. & N. H. R. Co. and N.Y. & Harlem R. Co., 20 N.Y. 492; Ellis & Martin v. Ohio Life Ins. & Trust Co., 4 Ohio St. 645; Bullard v. Boston & M. R. R., 5 A. 838; Hoye v. C. & N. Ry. Co., 62 Wis. 666; Falk v. N.Y. S. & W. R. Co., 29 A. 157.

Where there is a conflict of testimony the question whether the plaintiff is guilty of contributory negligence is for the jury. Filer v. N.Y. Cent. Ry. Co., 49 N.Y. 47; Washington & G. R. Co. v. Tobriner, 147 U.S. 557; Morgan v. Southern P. Co., 30 P. 601; Pittsburg Ry. Co. v. Kane, 6 A. 845; Bucher v. N.Y. C. R. Co., 98 N.Y. 128; Brooks v. Boston & M. Ry., 135 Mass. 21; Terre Haute & I. Ry. Co. v. Buck, 96 Ind. 346, 49 Am. Dec. 168; 6 Wait's Actions & Defenses, 584.

It is not contributory negligence to get on or off a moving train, but the same is a question for the jury. Eppendorf v. Brooklyn City Ry. Co., 69 N.Y. 195; Bartholomew v. N.Y. Cent. Ry. Co., 102 N.Y. 716; Chicago West Div. Co. v. Mills, 105 Ill. 63; Mulhado v. Brooklyn Ry. Co., 30 N.Y. 370; Lewis v. President, etc., Delaware & H. Canal Co., 40 N.E. 248; Staines v. Cent. Ry. Co., 61 A. 385; Bartholomew v. N.Y. Cent. Ry. Co., 7 N.E. 623; Cousins v. Lake Shore & M. S. Ry. Co., 56 N.W. 14; Raben v. Cent. Iowa Ry. Co., 34 N.W. 621; Shannon v. Boston & A. R. Co., 2 A. 678; Delaware & Hudson Canal Co. v. Webster, 6 A. 41; Filer v. N.Y. Cent., 49 N.Y. 47; Carr v. Eel R. & V. Ry. Co., 33 P. 213; St. Louis & S. Ry. Co. v. Ratby, 87 S.W. 407; Chicago & A. R. Co. v. Byrum, 38 N.E. 578; St. Louis, I. M. & S. Ry. Co. v. Persons, 4 S.W. 755; Christensen v. Metropolitan St. Ry. Co., 137 F. 708; Scofield v. C., M. & St. P. Ry. Co., 114 U.S. 615. 29 L.Ed. 224.

Ball, Watson & McClay, for respondent.

Plaintiff must make out his case by proof of the negligence alleged. Flint, etc., Ry. Co. v. Stark, 38 Mich. 714; Manuel v. C., R. I. & P. R. Co., 10 N.W. 237; Carter v. Kansas City, etc., R. Co., 21 N.W. 607; Miller v. Chicago & N.W. R. Co., 23 N.W. 756; Pennington v. Detroit, G. H. & M. Ry. Co., 51 N.W. 634; Cowan v. Muskegon Ry. Co., 48 N.W. 166; Price v. Railroad, 72 Mo. 414; Waldhier v. Railroad, 71 Mo. 514; Ohio, etc., Ry. Co. v. Stratton, 78 Ill. 88; Illinois, etc., Co. v. Chambers, 71 Ill. 519; C., B. & Q. Ry. Co. v. Bell, 112 Ill. 360; Toledo, etc., Co. v. Foss, 88 Ill. 551; Chicago & A. R. R. Co. v. Rayburn, 38 N.E. 558; Santa Fe & P. & P. Ry. Co. v. Hurley, 36 P. 216.

The train being held long enough for all passengers to alight, it will be presumed that they had gotten off. Raben v. Cent. Iowa R. Co., 35 N.W. 645; Ill., etc., R. Co. v. Slatton, 54 Ill. 133; Straus v. R. Co., 80 Mo. 220.

If a passenger requires a longer time he must give notice. New Orleans, etc., Co. v. Statham, 97 Am. Dec. 478.

A railway company is not liable for injuries caused by others, when not acting in concert with them. Chicago, etc., Ry. Co. v. Scates, 90 Ill. 586; Sherman & Redfield on Negligence, Sec. 11, 5th Ed.

A carrier is not responsible for unforseen circumstances. Transportation Co. v. Harper, 118 Ga. 672, 45 S.E. 458; Cleveland v. Steamboat Co., 86 N.Y. 306, 89 N.Y. 627, 125 N.Y. 299; Dumas v. Ry. Co., 43 S.W. 908; Furgason v. Citizens' St. Ry. Co., 44 N.E. 936.

A passenger leaves a train in motion at his own peril. Ohio, etc., Ry. Co. v. Stratton, 78 Ill. 88; Chicago, etc., Ry. Co. v. Randolph, 53 Ill. 510; Ill. Cent. Ry. Co. v. Chambers, 71 Ill. 519; Davis v. N.W. R. Co., 18 Wis. 175.

OPINION

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 entertained 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; Vickery v. Burton, 6 N.D. 245, 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, 16 N.D. 56, 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 employes, 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 asserts, 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,...