Hanson v. The Chicago

• Decision Date: 10 December 1910
• Docket Number: 16,744
• Court: Kansas Supreme Court
• Parties: NETTIE HANSON, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

112 P. 152

83 Kan. 553

NETTIE HANSON, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 16,744

Supreme Court of Kansas

December 10, 1910

Decided July, 1910.

Appeal from Marion district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

RAILROADS--Injury to Passenger Alighting in the Dark from Train Leaving His Station. In an action for damages for the death of a passenger evidence was adduced to show that it was the custom on the defendant's night trains to turn down the lights and furnish pillows for passengers who would pay for their use; that a passenger who was asleep on such a train when it reached the place of his destination, at one o'clock in the morning, was awakened immediately after it left the station; that, assisted by the porter, he went forward in an apparently drowsy condition and stepped off the train and was killed; that the conductor was near by and observed the passenger's departure; and that the train was not stopped nor its speed slackened, nor the passenger restrained although the danger was apparent to the trainmen. It is held, that a demurrer to the evidence was properly overruled, and that there was no error in refusing a request for an instruction to find for the defendant.

M. A. Low, and Paul E. Walker, for the appellant.

W. H. Carpenter, and D. W. Wheeler, for the appellee.

OPINION

BENSON, J.:

This appeal is from a judgment awarding damages for alleged negligence of the defendant in permitting, advising and directing a drowsy passenger to alight from a rapidly moving train in the nighttime, at a place where there was no platform or light, whereby the passenger was killed.

The deceased, who was thirty-six years of age, took passage at Bison, Okla., about 5 o'clock P. M., holding a ticket to Lost Springs, Kan., where the train arrived at about one o'clock A. M. It was the custom on the defendant's trains over this route to turn down the lights in passenger coaches about 10 o'clock P. M., and passengers who paid the charge therefor were furnished pillows by the train porter, and this was done on the night of the accident. Tickets were taken up by a train auditor and checks given to the passengers, and it was the custom of the porter on these night trains to awaken passengers who were sleeping on approaching their destination, and take up their checks. Announcement of the station was given and the train made the usual stop at Lost Springs, where one passenger left the train, and two others entered it. After the train left the station, and while it was moving with rapid and increasing speed, the deceased was observed, with the porter having hold of his shoulder, walking toward the platform. He appeared drowsy, and fell on or brushed against another passenger as he went by. The porter removed the check from his hat and went with him to the platform, where they disappeared down the steps together, and then the porter returned into the car alone. The body was found about 250 yards from the depot. The deceased had been over this route on the defendant's trains running on the same schedule on four previous occasions.

In answer to special questions the jury found that the custom of taking up checks and awakening sleepy passengers on night trains had existed for a long time prior to the injury; that the deceased was acquainted with this custom; that he was sleeping when the train reached Lost Springs; that he was taken out of his seat by the employees of the defendant and taken to the platform for the purpose of getting him to leave the train while it was in motion, if they could get him off before it gained too much speed; that they knew he was in a sleepy, drowsy condition; that the night was dark; that the deceased was unfamiliar with the place; that the train was running rapidly; that there was no conversation between the porter and the deceased with respect to his waiting until the train stopped; and that he did not leave the train voluntarily.

The porter testified that the vestibule was not closed after leaving the station until after the deceased left the car. Before reaching Lost Springs he had been informed that this passenger was destined for that place. There is some conflict in the testimony concerning the occurrences just before the deceased left the train. The porter testified that when he announced the station the deceased was talking with another gentleman in the seat; that, returning into the car after the train started, and when it had proceeded fifty to one hundred feet, he saw the deceased coming out toward the vestibule, and understood him to say that the conductor told him to get off; and that the conductor said "stop," and pulled the bell rope. He also testified:

"Ques. Why did n't he stop? You knew that train was going at a rapid rate? Ans. Yes, sir; I presume it was.

"Q. Did n't you know that it was impossible for a man to get off or on that train when going at a rapid rate? A. I did n't know what he could do.

"Q. You thought that there was a great possibility that he would be injured? A. No, sir; I never gave it a thought.

"Q. Although the train was running rapidly? A. I did n't.

"Q. Notwithstanding the fact that he got off in the dark there that night, the train running rapidly, you never undertook to stop that train after the man got off, or to pull that cord once? A. I don't remember whether or not I did.

"Q. You know, as a matter of fact, you did n't, don't you? A. I don't think the train did stop any more. . . . Well, it did n't stop."

The conductor testified:

"I started into a high-backed coach, the first car back of the smoker. . . . This gentleman came down toward me. I asked him if he wanted to get off there. He said yes, he did. I said, 'Well, wait a minute, and I'll stop the train'; with that I reached up and pulled the cord, and at that he passed me, and I did not see him any more. This air did n't sound very loud, and when I got out into the vestibule the porter was standing there. I said, 'Did he get off?' He said, 'Yes.' That ended it with me. I turned and went back; that was all that I knew about it.

"Q. Did you see him get off? A. No, sir.

"Q. Did you have any other conversation with him except that you have already detailed? A. No, sir."

On cross-examination he said:

"Q. You did n't stop that train? That train was going rapidly, was it not? A. It was gaining speed right along.

"Q. It was going fast when this man was there at the door, was it not? A. Yes, sir.

"Q. You knew that it was dangerous to get off, did n't you? A. I would not have got off.

"Q. You know as a trainman that it was dangerous for that man to get off? A. Yes, sir; he passed me in the alleyway.

"Q. That is where you pulled the cord? A. Yes, sir.

"Q. When the porter told you a man got off there in the dark, and the train was running rapidly, why did n't you stop the train when the porter told you? A. He told me the man was gone.

"Q. Both of you knew that it was dangerous to get off and although the train was running fast and it was dark there, you just went on and paid no further attention to it; that is the way you done it, was it? A. Yes, sir."

A passenger in another coach opening upon the same platform testified that he saw a man who seemed to be sleepy go to the platform, followed by the porter, and heard one of the employees say, "Let him get off if he will"; that the train was going rapidly at the time; and that the trainmen did not pull the bell cord and made no effort to stop it. Another witness testified that as the train started out of Lost Springs he saw some one shake another man and take him out of the coach just back of the smoker. This was the coach in which the deceased was riding.

The only errors specified are the decision overruling a demurrer to the evidence, and the refusal to instruct the jury to find for the defendant; and the question now to be decided is whether the evidence is sufficient to sustain the verdict.

It is contended that it is not the duty of a carrier to awaken a sleeping passenger in a day coach on arrival at his destination, if due announcement of the station is made and a reasonable opportunity is given for him to alight. This is the general rule, although it is said that exceptional circumstances might impose the duty. (2 Hutch. Car., 3d ed § 1128.) It is also insisted that the custom shown by the evidence of turning down the lights and furnishing pillows on night trains, that passengers may sleep more comfortably, does not impose the duty. The defendant also contends that the proper announcement of the station having been made, and sufficient opportunity given for the egress of passengers, the deceased, by remaining in the coach until the train started,...