Jacob v. Flint & P.M.R. Co.
| Decision Date | 28 May 1895 |
| Citation | 63 N.W. 502,105 Mich. 450 |
| Parties | JACOB v. FLINT & P. M. R. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Tuscola county; Watson Beach, Judge.
Action by Clara E. Jacob, by her next friend, against the Flint & Pere Marquette Railroad Company for personal injury. From a judgment for the defendant, plaintiff brings error. Affirmed.
Black & Dodge, for appellant.
Hanchett & Hanchett, for appellee.
The plaintiff was injured by alighting or being thrown from the defendant's passenger coach, and appeals from a judgment against her, upon a verdict by direction of the court. She was a young woman of 18 years, and, according to her testimony, she asked the brakeman, when he passed her, after calling Juniata, a station six miles from Vassar, if he called Vassar station, to which he answered: He soon after came through the car again, and called, "Vassar change cars for Caro!" She said that she got up and followed him out, expecting him to help her off. The train had stopped before the brakeman called, "Vassar; change cars for Caro!" She did not notice the train moving until she got on the platform. She says that the brakeman stood upon the platform all of the time she was looking, but that she did not speak to him, nor did he speak to her. Her testimony shows that she supposed "she had been carried by the station, and she looked for a convenient place to get off, to prevent being carried by, and that, had she seen a place where she thought she could get off, she would have tried to get off some way." This was in answer to the question, "Then, if you saw a place where you thought you could get off, you intended to jump?" Again she said, "I was looking to see if I could make an effort to get off the train." On redirect she said that she thought she had been carried by, and was looking for a place to get off; that she expected to get off beyond the station, but only if there was a place to get off; adding: There was nothing to indicate that she thought she was getting off at the station, and she says that the speed of the train was increasing. She did not remember going down one or more steps, and thought she did not step off the train, but repeatedly said that she could not remember and did not know whether she did or not. A passenger named Cowing said that the lady passed out just as the brakeman shut the door after passing into the car in front. He said: Another witness testified that the fence was about three feet from the rails, and sloped back. Could not say whether there was room for a person to pass between the fence and a train. A person on the lower step would be from 1 1/2 to 2 feet clear of the fence going past. It should be remarked that this fence was at right angles to the track at a cattle guard, by which she sat when found. Clara Hardy, a passenger, saw her go out and walk right down the step while the cars were going. Saw her stepping down. Did not see her step off. A Mr. Lloyd followed her out, and saw her go down the step, and step off the car. He was right behind her on the platform, probably two steps from her. On cross-examination he was asked, "Can you say that she fell off or stepped off?" Answer: The witness at once notified the brakeman, and the train was stopped. The cause of the previous stop was a railroad crossing, a short distance from Vassar, which place the train had not reached. This embodies the substance of all the testimony upon the subject of her getting off the train. The theory that she was thrown off, if to be accepted, must be based upon the following statements, viz.: (1) That she was on the platform, looking for a convenient place to alight; (2) that she thought she did not jump; and (3) that it looked to a passenger like a bundle of rags hurled or thrown against the fence. The last is as consistent with a step or a jump from the train as it is with her being thrown from the train; the second is not inconsistent with the statement that she stepped off; while the first is an opinion merely, which her own testimony shows to have not been based upon knowledge or recollection. Having said that she neither recollected nor knew how she got off, there was no propriety in allowing her to give an opinion. Hence we must conclude that she stepped off the car, to avoid being carried by her station, at a cattle guard, when the train was going three or four miles an hour at the least. She states that it was so dark that she could not see, and there is probably room to say that she acted impulsively, believing that she was being carried beyond her destination. Do these facts constitute contributory negligence? If there had been no announcement, and she had done this, there would have been little chance to claim that she was not negligent. Had a passenger said, "You had better get out here quickly, or you will be carried by," and she had gone to the platform, to find the cars moving, she would have been as likely to act impulsively as under these circumstances. The only difference would be that in such case her sudden excitement would have been caused by a third person, while in this instance it is said to have been caused by the negligent act of the brakeman. In other words, it is not to be called contributory negligence, because the defendant's act caused an impulse to do that which was negligent; in other words, caused negligence upon her part. Such a claim as that might be urged in many cases of negligence. But the true test is "the conduct of an ordinarily prudent person." It will not be presumed that an 18 year old girl, traveling alone, who has traveled on cars before over the same road, who expects the brakeman to help her alight, and is surprised that he does not, is such a novice as to be relieved from the ordinary rules of contributory negligence. She may be presumed to be as mature intellectually as a man of 21. In some states it is the age of majority. Railway passengers are presumed to know the every-day incidents of railroad travel. Mitchell v. Railway Co., 51 Mich. 236, 16 N.W. 388; Minock v. Railway Co., 97 Mich. 425, 56 N.W. 780. It certainly would be imprudent for a person to step into a cattle guard, in daylight, from a train in motion, though going but three or four miles an hour, and more imprudent to do so where it is so dark that the cattle guard cannot be seen.
It is unnecessary to review the cases from other states, cited by counsel for the respective parties, inasmuch as our own authorities are decisive. In Railroad Co. v. Bangs, 47 Mich. 471, 11 N.W. 276, the plaintiff, knowing that he was being carried by his station, jumped from the lower step of the coach while it was going at the rate of six miles an hour. Mr. Justice Campbell, speaking for the court, said Mitchell v. Railway Co., 51 Mich. 237, 16 N.W. 388, arose over an accident somewhat similar, but the question of contributory negligence did not arise. It turned on the absence of negligence. In Werbowlsky v. Railway Co., 86 Mich. 236, 48 N.W. 1097, Mr. Justice McGrath said: "A passenger who voluntarily jumps on or off from a car while it is in motion does so at his own peril, and that construction cannot be said to be defective which is only unsafe in view of such conduct." An attempt is made to distinguish these cases from the one before us, it being contended that the negligence of the defendant put the plaintiff in a position where she was called upon to act suddenly; and where, under such circumstances, she yields to an impulse, and was injured, she might recover, and, at all events, it is a question for the jury. Two Michigan cases are relied on, to support this doctrine: McCaslin v. Railway Co., 93 Mich. 553, 53 N.W. 724; Cousins v. Railway Co., 96 Mich. 386, 56 N.W. 14. Both are distinguishable in important particulars. In the first of these the train stopped at the...
To continue reading
Request your trial