Hoylman v. Kanawha
| Decision Date | 02 March 1909 |
| Citation | 65 W.Va. 264 |
| Court | West Virginia Supreme Court |
| Parties | Hoylman v. Kanawha & Michigan Ry. Co. |
The general rule is that passengers getting off a moving railroad train are chargeable with contributory negligence and cannot recover for injury received therefrom, (p. 263.)
The act of getting on or off a moving train is evidence of contributory negligence, and imposes upon one who is injured in doing so the burden of proving that the peculiar circumstances of the case justified him in such course, (p. 265.)
When in an action against a railroad company for personal injury to a passenger the evidence is such that a verdict for the plaintiff should be set aside, the circuit court, if asked, should direct a verdict for the defendant, and if it refuses, the appellate court will reverse judgment and verdict, and remand the case for a new trial, unless this Court can see clearly that the plaintiff cannot better his case upon another trial, (p. 270.)
Error to Circuit Court, Kanawha County.
Action by James H. Hoylman, administrator, against the Kanawha & Michigan Railroad Company. Judgment for plaintiff. Defendant brings error.
Reversed.
Brown, Jackson & Knight, for plaintiff in error.
John L. Porter took passage on a train of the Kanawha & Michigan Railroad at Charleston to go to Wiener, a flag station on that railroad, and in getting off the train was killed, and his administrator recovered in the circuit court of Kanawha county a verdict and judgment for five thousand dollars against the railroad company, and the company brings the case here.
There is no conflict of evidence in the case. Tested by the evidence adduced by the plaintiff the facts are: That Porter sat in the third seat some ten feet from the door of tbe car, and he was engaged in active conversation with a passenger, Garten, in the next seat behind him. A friend named Kirby when the train stopped went to Porter's seat and carried a bundle out for him and got off the train. Porter did not go with him. Three or four other passengers got off the train. Porter lingered in his seat, though the train had stopped, talking to Garten in the next seat behind. He lingered so that that passenger, Garten, who remained on the train, warned Porter that he had better get off the train while it stopped. Porter started for the door and before he got to the door, indeed before he left his seat, the train started, but Porter went on down the steps when the train was moving and stepped on the platform holding to the railing of the car with his right hand, and did not let go of it, but held to it while he took two or three steps in the direction the train was moving and increasing in speed, and he lost his balance and fell under the wheels. Before he got out of the door the train was moving. The conductor swears that a stop of the usual length for that station was made. No evidence contradicts this. Other passengers, three or four, got off. This affords evidence that the length of stop was reasonable. Hurt v. Railroad, 4 Amer. St. B. 374. There was no crowd. The conductor swears that he stood, as he usually did, at the other end of the car before the one in which Porter rode and looked through both cars to see that all the passengers were off, and did not see Porter. There is no contradiction of the conductor in this. A witness of the defence uncontradicted says Porter was still talking to Garten at his seat when the train started. This would show that Porter had not yet come out of his seat into the aisle,-but was tarrying in his seat talking to Garten. Garten's evidence confirms this. The evidence clearly shows that before Porter got to the door the train had started. The evidence shows that Porter was well acquainted with this station and had reason to know that the usual stop there was of short duration. "All experience has demonstrated that to get off a moving car is highly dangerous; therefore it is held that such an act is negligence per se, and the passenger if thereby injured, except in very rare cases, is guilty of contributory negligence and cannot recover." O'Toole v. Railroad Co., 158 Pa. St. 106. "An adult who knowingly and unnecessarily steps from a railroad train in motion is guilty of contributory negli gence as a matter of law." Walters v. Chicago & N. W. Ry. Co., (Wis.) 89 N. W. 140. Such is held to be the law in most of the courts. 2 Wood on Railroads, 1292, says that in view of the danger necessarily attending such an act it should be held, as a matter of law, that it is negligence to attempt to board or alight from a train while it is in motion, and the question should not be left to the jury, unless there are exceptional circumstances tending to excuse or justify the act. The same in Hutchinson on Carriers, sec. 1180. Now, what fault is imputed to the company? Nobody claims that the conductor or other trainman saw Porter getting off. The claim is that the stop was not long enough in time. But in the first place the evidence is that the stop was for the usual time at that station, and this is proven by the fact that several other passengers got off safely. There is no proof clear that the stop was not reasonable. But suppose that the stop was not of the proper length of time, the law just cited from Wood and Hutchinson says that even if the company was negligent in this respect the passenger must not run the risk of alighting. That is no reason for running a plain risk, especially by an aged person. McDonald v. Railroad Co., 87 Me. 466, says that it is the duty of the company to stop a sufficient length of time to give passengers reasonable opportunity to alight with safety. "But the failure of the company to stop its train at a station as it ought to do or to stop for sufficient length of time does not justify a passenger in leaving a moving train." In that case we find that he gets off at his own risk. I find in Simmons v. Air Line &c. Co., 120 Ga. 225, this: "If with a clear chance to avoid the consequences of defendant's negligence or breach of duty the plaintiff voluntarily assumes the risk occasioned thereby, such conduct on his part is not merely contributory negligence, lessening the amount of damages, but a failure to avoid danger, defeating the right to recover." "If all you know of it is that a passenger jumps from a train in motion and is injured, you would charge him with carelessness for the act" Shennon v. Railroad Co., 78 H. E. 59. The case in 87 Maine says that, "The burden was on the plaintiff to prove that he jumped from the train under exceptional circumstances that would justify or excuse such an act of imprudence." So holds Browne v. Railroad Co., 108 N. C. 34. The North Carolina court in Morrow v. Atlanta &c. Co., 46 S. E. 12, held that a person who "alights from the train while traveling at the rate of three to four miles an hour and with its speed steadily increasing, is guilty of contributory negligence as a matter of law precluding recovery." The train in this case was going faster than that, the engineer swears eight or ten miles an hour when Porter alighted. The evidence clearly shows that Porter delayed leaving the train and had to be warned to do so by Garten. "Where a passenger delays for an unreasonable time, and it is not apparent to the agent of the carrier that he is either boarding the vehicle or carriage, the carrier will not be held responsible for a resulting injury." 5 Am. & Eng. Ency. L. 579. A passenger seeing that a train had passed a station and was increasing in speed jumped from it. It was held that he could not recover, "even though the railroad company was negligent in management of the train." Brown v. Chicago &c. Co., 80 Wis. 162. McDonald v. Montgomery R. Co., 110 Ala. 163, holds, "'When a person steps from a moving car without any necessity therefor and is injured, which injury would have been avoided if he had remained on the car, he is guilty of such contributory negligence as will preclude his recovery." That it is negligence to alight from a moving train has been held by the courts of New York, Pennsylvania, Massachusetts, Maine, Michigan, Wisconsin, Iowa, Alabama, Georgia, Tennessee and North Carolina. Mearns v. Railroad Co., 163 N. Y. 108; Brown v. Railroad Co., 181 Mass. 365; Werbowloske v. Railroad Co., 86 Mich. 239; Newlon v. Railroad Co., 127 Iowa 654; Whelan v. Railroad Co., 84 Ga. 506, and cases above cited. Porter was a man of seventy-three years. This called on him to be careful and prudent. The case of Cumberland V. R. Co. v. Maugans, 61 Md. 62, says in the opinion that "every one would pronounce it an act of reckless imprudence for a person to jump from a train of cars when in rapid motion, or at night and in the dark, when dangers or obstructions that could not be seen were in the way, or for a person of impaired health and in a weak physical condition, or of an advanced age to make the attempt when the train was in slow motion." 1 Amer. & Eng. Anno. Cases, 779, has the following: "Even where the train is moving slowly, the act of alighting therefrom may constitute contributory negligence as a matter of law if the person so alighting is in a weak physical condition or of advanced age." ...
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