Lynch v. The Missouri Pacific Railway Company

• Decision Date: 07 July 1914
• Docket Number: 18,728
• Citation: 142 P. 938,92 Kan. 735
• Parties: DORA LYNCH, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

142 P. 938

92 Kan. 735

DORA LYNCH, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

No. 18,728

Supreme Court of Kansas

July 7, 1914

Decided July, 1914.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMMON CARRIER--Duty Owed to Passengers--Warning Passengers When Not to Alight from Train. A carrier is bound to exercise the highest degree of care that is reasonably practical in safely carrying passengers and setting them down safely at their destinations, and where a stop is made at a place where passengers are not to be discharged but where the circumstances are such as to imply an invitation to alight and to lead passengers to believe that the stop is made for that purpose it is ordinarily the duty of the carrier to warn passengers not to alight there.

2. SAME--Passenger Jumping from Train While in Motion--Contributory Negligence--Question of Fact. Where a train was stopped in front of a depot at a place where passengers usually alight, and a passenger for that station started to leave the train and had descended to one of the lower steps of the coach in the attempt when the train began to move slowly, and afterwards while she was throwing off bundles in order to attract the attention of the conductor that she desired to alight, the train was moved with a sudden jerk or lurch which caused her to lose her balance, whereupon she jumped to the platform to save herself from falling, and was injured, it can not be held as a matter of law that her act in jumping from the train was contributory negligence which bars a recovery of damages.

W. P. Waggener, James M. Challis, both of Atchison, and J. N. Baird, of Kansas City, Mo., for the appellant.

William Whitelaw, and James F. Getty, both of Kansas City, for the appellee.

OPINION

JOHNSTON, C. J.

This action was begun by the appellee, Dora Lynch, to recover damages from the appellant, The Missouri Pacific Railway Company, for personal injuries sustained while alighting from one of its passenger trains. On July 10, 1911, the appellee who was a woman about fifty-two years of age and weighing about two hundred and fifteen pounds, was a passenger on appellant's train from Kansas City, Kan., to Pomeroy, Kan. The train was scheduled to run in upon a passing track at Pomeroy to permit the passing of an eastbound train. The train arrived at Pomeroy and was stopped with the engine about six to ten feet from the switch to the passing track to permit the brakeman to open the switch. It does not appear that the station was announced as the train approached, but when it stopped in front of the depot appellee arose from her seat in the third car of the train and proceeded to the front door of that car to alight. When she got on one of the lower steps of the car she noticed that the train had begun to move slowly, and in order, as she testified, to attract the attention of the conductor to the fact that she wished to leave the train she threw off singly several packages which she was carrying but no attention was paid to her action, and that then there was a quick jerk of the train which threw her out of balance and forced her to jump from the moving train, which by that time had attained a speed of from six to ten miles an hour. In jumping appellee fell upon her back and sustained the injuries of which she complained. There was evidence offered by the appellant tending to show that it was the custom for the train upon which appellee was riding to pull in upon the passing track, and then, after the passage of the eastbound train, back to the depot and permit the passengers bound for Pomeroy to alight. This evidence, however, was contradicted by appellee, who produced testimony to the effect that passengers are oftener discharged before the train is run on the sidetrack. It also appears that on the day on which appellee was injured two or three passengers did alight from the train before appellee attempted to do so. She testified that it was not her intention to jump from the moving train, but that after she had thrown her bundles from the train it gave a sudden lurch which caused her to lose her balance and that she was forced to jump to save herself from...