Luse v. Union Pacific Railway Company

• Decision Date: 07 November 1896
• Docket Number: 8754
• Citation: 46 P. 768,57 Kan. 361
• Parties: VICTORIA V. LUSE v. THE UNION PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

46 P. 768

57 Kan. 361

VICTORIA V. LUSE v. THE UNION PACIFIC RAILWAY COMPANY

No. 8754

Supreme Court of Kansas

November 7, 1896

Decided July, 1896.

Error from Brown District Court Hon. J. F. Thompson, Judge.

REVERSED AND REMANDED.

ON April 27, 1891, the plaintiff commenced her action against the defendant to recover damages for personal injuries alleged to have been sustained by her on December 6, 1890, at Leona, Kansas, in alighting from defendant's train, the principal allegation of negligence being that the train was started before she had time under the circumstances to get off. On a trial at November term, 1891, a verdict was returned in favor of the plaintiff for $ 3,250, and at the same time the jury answered certain particular questions of fact; those in any way bearing upon the question of negligence of either party being as follows, to wit : --

QUESTIONS SUBMITTED BY PLAINTIFF.

"2. On or about the 6th day of December, 1890, was the plaintiff a passenger in defendant's railway train from St. Joseph Mo., to Leona, Kan.? Ans. Yes.

"3. Did she pay fare for such passage? A. Yes.

"4. Did said train stop at the platform at Leona for the purpose of enabling the passengers to alight therefrom? A. Yes.

"5. As soon as said train stopped at said station, did the plaintiff arise and attempt to leave the car? A. Yes.

"6. Was her passage obstructed by the entry and departure of passengers? A. Yes.

"7. Did she leave said car as soon as she reasonably could? A. Yes.

"8. If her passage from said car had not been obstructed, would she probably have reached the depot platform before said train was started? A. Yes."

"10. As she was coming down the steps from the car to the platform, was said train started? A. She was on the lower step of the car when starting.

"11. In consequence of the starting of said train was the plaintiff thrown onto the platform, or did she fall onto the platform, and was she injured in consequence thereof? A. She was thrown and injured.

"12. Did the plaintiff use reasonable and ordinary care under the circumstances in leaving said car and reaching the station platform? A. Yes.

"13. Was the plaintiff guilty of ordinary negligence in leaving said car or reaching said platform at said station? A. No.

"14. Was the defendant guilty of ordinary negligence in starting said train before the plaintiff had time to alight therefrom? A. Yes.

"15. Did the plaintiff know or discover said train had started when she stepped from the steps of the car platform? A. She did not.

"16. When the plaintiff fell on said station platform, how did she strike--on her back, or on her side? A. On her side.

"17. When she left said car and fell on said station platform did she have her child in her arms? A. Yes.

"18. Was she hurt by her fall and has she ever since suffered pain in her back in consequence thereof? A. Yes."

QUESTIONS SUBMITTED BY DEFENDANT.

"1. Did not the train stop at the station the usual length of time to permit passengers to get off and on the train and to unload the baggage and express matter? Ans. Yes.

"2. Did not the niece of plaintiff alight from the train without difficulty? A. Yes.

"3. Was not the plaintiff prevented from getting off the train promptly by a man by the name of Walters, who stood in front of her talking to some person, while the train was stopping at Leona? A. Yes.

"4. About how far had the train moved at the time the plaintiff stepped from it? A. Just starting.

"5. At the time the plaintiff stepped from the train did she not have her six-weeks-old baby in her arms, and did she not step off toward the rear of the car and fall on her side? A. She had her six-weeks-old baby in her arms; did not step toward the rear of the car, and was thrown on her side."

"7. About how fast was the train moving at the time plaintiff stepped from it? A. Just starting.

"8. Did plaintiff walk down the steps of the car with her baby in her arms after the train was in motion and step off the train and toward the back of it while the train was still in motion, and fall upon her side on the platform? A. She did not."

On the same day the defendant filed a motion for judgment in its favor upon the special findings of the jury notwithstanding their general verdict, and also a motion for a new trial. The following is a copy of the journal entry disposing of said motions and also of a motion filed by the plaintiff for judgment in her favor, to wit: --

"And now on this 4th day of December, 1891, came on the motion of the defendant, the Union Pacific Railway Company, for judgment on the special findings of the jury, as on file of November 14, 1891, which upon argument of counsel and consideration by the court, is sustained, the plaintiff duly excepting.

And also came on the motion of the defendant, the Union Pacific Railway Company, to set aside the verdict and for a new trial, and the court is of opinion, that the general verdict in this cause is not sustained by sufficient evidence, and is contrary to the evidence; but inasmuch as the motion for judgment on the special findings has been sustained, and for that reason only, said motion for a new trial is overruled to which ruling of the court, the defendant then and there duly excepted. And thereupon on the same day the plaintiff filed her motion to set aside said judgment, as on file December 4, 1891, which coming on to be heard and being argued by said counsel is by the court overruled; the plaintiff duly excepting."

Judgment was thereupon rendered in favor of the defendant and against the plaintiff for costs.

Judgment reversed.

C. D Walker, and A. F. Martin, for plaintiff in error.

A. L. Williams, N. H. Loomis, and R. W. Blair, for defendant in error.

OPINION

MARTIN, C. J.

I. The Court erred in sustaining the motion of the defendant for judgment in its favor upon the findings of the jury notwithstanding their general verdict. The findings show that the defendant was guilty of ordinary negligence in starting its train before the plaintiff had time to alight therefrom, and that she exercised due care in attempting to leave it and in stepping therefrom just as it was starting and before she had knowledge that it was in motion. The care of her babe and the entry and departure of other passengers retarded her egress, but the jury must have found that she was not at fault for the delays occasioned thereby.

It is the duty of a railroad company to afford a sufficient time to passengers to alight in safety by the exercise of reasonable care and diligence on their part. Jeffersonville Rld. Co. v. Hendricks', Adm'r, 26 Ind. 228; J. M. & I. Rld. Co. v. Parmalee, Adm'r, 51 id. 42; Pennsylvania Rld. Co. v. Kilgore, 32 Pa. 292; Keller v. Sioux City & St. Paul Rld. Co., 27 Minn. 178, 181, 6 N.W. 486; Southern Rld. Co. v. Kendrick, 40 Miss. 374; Straus v. K. C. St. J. & C. B. Rld. Co., 75 Mo. 185. The mere fact that the train stopped the usual length of time is not sufficient to show negligence of the plaintiff nor due diligence of the defendant; for the circumstances may have required a longer stop on that day than usual, and it was a question for the jury to determine whether the stop was reasonably sufficient or not. The rule is well stated by Chief Justice GILFILLAN in the case above cited from 27 Minn., as follows: --

"When the cars stop at a passenger's place of destination it is his duty to leave the car without unnecessary delay, and the company's to give him a reasonable opportunity to do so with safety. The exact length of time to be given must depend very largely upon circumstances. . . . It certainly would not be permissible for them to be so reckless of the lives and limbs of passengers as to start the trains when they know, or with reasonable care might know, that passengers are in the act of alighting."

The defendant lays much stress upon question three submitted by it and answered by the jury as to the conduct of Walters. The evidence shows that Walters was a passenger whose destination was also Leona; and although this fact does not appear in the findings, yet the answer to said question three is not inconsistent with the answer to question six submitted by the plaintiff, and Walters was perhaps only one of several who obstructed the plaintiff's way and contributed to her detention. The defendant cites several cases where railroad companies have been exonerated from liability to passengers for injuries occasioned directly by the independent act or omission of a third person, but these are manifestly inapplicable.

II. The only other question in the case is whether judgment should be entered in favor of the plaintiff or the case remanded for a new trial. The writer is of the opinion that the proceedings of the Court upon the motion for a new trial were erroneous and should be disregarded; and that judgment should be entered for the plaintiff upon the general verdict, the same being in accord with the answers of the jury to the particular questions of fact. We all agree that a defendant may file a motion for a favorable judgment on the findings and a motion for a new trial at the same time;...