Larson v. Chicago, M. & P.S. Ry. Co.
| Decision Date | 10 May 1913 |
| Citation | 141 N.W. 353,31 S.D. 512 |
| Parties | LARSON v. CHICAGO, M. & P. S. RY. CO. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brown County; Frank McNulty, Judge.
Action by Andrew G. Larson against the Chicago, Milwaukee & Puget Sound Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed and new trial granted, and cause remanded.
Porter & Grantham, of Aberdeen, for appellant.
Taubman & Williamson, of Aberdeen, for respondent.
This suit was instituted to recover damages for personal injury to plaintiff in the loss of a foot claimed to have been the result of defendant's negligence while plaintiff was attempting to board one of defendant's passenger trains at Mobridge, S. D., on September 21, 1910. There was a verdict and judgment in favor of plaintiff, and defendant appeals, assigning various errors.
There is not much conflict in the testimony, except upon one or two material points. Plaintiff, with some three companions became a passenger on defendant's passenger train at Minneapolis, Minn., destined for McLaughlin, S.D. Mobridge is an intermediate station. This train arrived at Mobridge on schedule time at 10:35 a. m., central time, and was scheduled to depart at 9:45 a. m., mountain time, but in fact did not start to depart until about 9:52 some 17 minutes after arrival. Before and at the time of arrival, "ten minutes for lunch" was called in the train. At Mobridge the train crew-conductor, engineer, and brakemen-were changed also the engine. After the arrival at Mobridge, plaintiff left the smoking car in which he had been riding and went to a saloon some 275 to 300 feet north and east of where said car was standing. Plaintiff remained at said saloon until the said train began to move on its departure. When he discovered the train moving, with a package of beer bottles in his hands, he ran to catch the train, and in so doing had to travel some 70 to 100 feet farther west than if the train had remained standing, thus making a run of from 350 to 400 feet to reach his car, and, while in the act of boarding said moving car, he in some manner fell and his foot was caught between the wheel and the rail. At the time of the accident the train was moving about five miles an hour. Before starting the train, the conductor gave the warning, "All aboard," on the platform and in the lunchroom in the depot. According to the custom of defendant road, it was the duty of the trainmen immediately upon starting in motion a passenger train, immediately after the change of engines, to test the air brake. This duty was performed by the engineer as soon as the train was put in motion, applying the air, and the brakeman back on the train observing the effect thereof to ascertain whether or not the brake properly set on the wheels, and, in case the brake did properly operate, the rear brakeman then signaled the engineer to release the air. At about the time the accident occurred to plaintiff, the rear brakeman had completed his observation of the operation of the brakes and, about the instant of the accident, signaled the engineer to release the air. Along the side of this train, as it remained standing, was a brick platform; westward beyond the platform was a cinder walk about on the same level with the brick platform; the accident happened along or by the cinder walk 140 feet west from the depot. Plaintiff was an ordinarily active man 50 years of age.
The foregoing is a substantial statement of the undisputed circumstances surrounding the accident in question. The evidence on behalf of plaintiff, as to the circumstances of the accident, consisted of the testimony of one Perry, a hardware merchant of Mobridge, and the testimony of plaintiff. Plaintiff himself testified that when they got to Mobridge there was some talk about lunch; that they had their lunch in the seat with them; that, some three or four minutes after the train stopped, a brakeman, on the outside of the car, informed them through the window that they could get beer at that point; that they would have time to do so; that they had ten minutes and maybe more; that he (plaintiff) immediately proceeded to the saloon and purchased two bottles of beer; that when he was returning and had walked some 15 feet from the saloon door he saw the train start moving; that he saw the conductor and a brakeman on the platform by the train; that they motioned him to hurry; that he ran about as fast as he could; that, when he came near the train, either the brakeman or the conductor took his bottles of beer, and the conductor told him to jump on, and as he took hold of the handholds the train made a jerk and his hand loosened and he swung around and his foot missed the step and went under the train and was caught between the wheel and the rail; that after the accident the train was immediately stopped, and he saw the conductor there then, the same conductor that had told him to jump on and who afterwards signaled for the train to proceed on its journey. Plaintiff testified that he was not intoxicated at the time of the accident and had not been drinking intoxicating liquors just prior thereto.
The witness Perry testified that his place of business was on the opposite side of the street from the saloon in question; that at the time of the accident he was walking from his place of business towards the depot, and about 100 feet therefrom; that he saw plaintiff come from the saloon door on a run and rush towards the then moving train; that he ran about as fast as he could; that he had a package in his hands; "only saw one man on the platform by the train; he grabbed both handrails; did not see him lift either foot as if to get on the step; saw him break loose and fall down; I ran and grabbed hold of him and held his limb while another gentleman done it up; it all happened quickly; I was about 110 feet from the place of the accident.
At the close of the plaintiff's evidence, and again at the close of all the evidence, defendant moved the court to direct a verdict for defendant on the ground that the accident by which plaintiff was injured was the result of plaintiff's contributory negligence and was not the result of any negligence on the part of defendant, or any of its agents or servants in charge of said train. The motions were denied and exceptions duly taken, and the ruling of the court thereon is now assigned and urged as error.
It is the contention of appellant that where it appears that a passenger train is moving at the speed of five miles an hour as a matter of law, it was contributory negligence on the part of plaintiff to attempt to get on board this moving train that would prevent his recovery, although he might have been invited and directed to jump on such train by the conductor in charge. Appellant seeks to establish this rule as the law of this case. But for the testimony of plaintiff that the conductor and brakeman were present, prior to the happening of said accident, motioning to plaintiff to hurry, and assisting him by taking his package, and telling him to jump on, there is no reasonable theory on which plaintiff might recover, or that would justify a verdict in his favor. Without this testimony of plaintiff, there is an absolute lack of any facts tending to show negligence, or any negligent act, either of commission or omission, on the part of defendant, or any of its agents or servants, that produced or resulted in said injury to plaintiff. This train did not move until after the expiration of the scheduled time for its departure, or until after the expiration of the time plaintiff claims he had been informed by some brakeman that it might depart; all the necessary warning required to notify passengers that said train was about to depart was given; defendant was under no duty to warn plaintiff in a saloon nearly a block away...
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