McNulta v. Ensch

• Decision Date: 31 March 1890
• Citation: 24 N.E. 631,134 Ill. 46
• Parties: McNULTA v. ENSCH.
• Court: Illinois Supreme Court

134 Ill. 46

24 N.E. 631

McNULTA

v.ENSCH.¹

Supreme Court of Illinois.

March 31, 1890.

Error to appellate court, third district.

George B. Burnett, for plaintiff in error.

Chas. A. Keyes, for defendant in error.

SHOPE, C. J.

This was an action on the case, brought by John Ensch against John McNulta, receiver of the Wabash, St. Louis & Pacific Railway Company, in the Sangamon circuit court, to recover for personal injuries. The first count of the declaration charged that the defendant was operating the railroad as receiver, that he was a common carrier, and that he received the plaintiff as a passenger to be carried from Springfield to Starne's Station, and that the platform there was constructed of unsuitable and defective material, and was in bad order and condition, etc. The second count charges that it was the duty of the defendant to stop such train at Starne's a sufficient length of time to enable plaintiff to get off the train in safety, and have the platform lighted, and that the defendant negligently failed to stop said train upon which the plaintiff was passenger, etc., a sufficient length of time for that purpose, and negligently failed to cause a light to be placed upon the platform, by means whereof the plaintiff, being in the act of getting off the train after it had stopped, and in the night-time, and while in the exercise of due care, etc., the train was suddenly started, and he was thrown between the platform of the station and one of the cars, and was caught by said car, and carried beyond the platform, whereby he was injured, etc. The defendant pleaded the general issue only. Upon the trial, plaintiff recovered judgment for $2,500. The court overruled a motion for a new trial, and rendered judgment on the verdict and for costs. The defendant sued out of the appellate court for the third district a writ of error, and assigned upon the record, for error, the following: (1) That the verdict of the jury was contrary to the evidence; (2) that the verdict was contrary to the law and the instructions of the court; (3) that the court gave improper instructions at the instance of the plaintiff, there being no evidence on which to base said instructions; (4) that the court erred in overruling defendant's motion for a new trial, and in rendering judgment against the receiver personally. The appellate court affirmed the judgment of the circuit court, and the defendant brings the case to this court by writ of error, and assigns for error that the appellate court erred in not reversing the judgment, and in affirming the same.

The only evidence offered by the plaintiff related to the alleged failure of the defendant to stop the train at Starne's a sufficient length of time to enable the plaintiff to get off the same in safety. The evidence as to whether the plaintiff paid his fare, and that it was received by the conductor, and as to whether the train stopped at all at the platform at Starne's, was conflicting. There was, however, no dispute as to the fact that the train did stop after passing the platform some 50 or 60 yards. The plaintiff got on the train going east at Springfield, January 14, 1888, a little after 9 o'clock P. M. The train was a through, fast train, was not scheduled to stop at Starne's, and no tickets were sold for that point to be used on the train. There was also a conflict in the evidence as to whether the station was called, immediately before reaching it, by the persons in charge of the train.

The first point made by the plaintiff in error is that the court erred in giving plaintiff's first instruction. The reason assigned is that there was no evidence upon which to base it. The instruction is as follows: ‘The court instructs the jury that, if they believe from the evidence that the plaintiff was a passenger on the train of the defendant on the night of the 14th of January, in the year 1888, and that while the plaintiff was so a passenger the said train stopped at the station, which was the destination of the plaintiff, but that said train did not stop at said station for a reasonably sufficient length of time to allow the plaintiff to safely get off of said train at said station, and that said plaintiff was injured by reason of said train not stopping at said station for a reasonably sufficient length of time to allow said plaintiff to safely get off of said train, then and in that case, a prima facie case of negligence is made out against the defendant, and the burden of explaining such prima facie case of negligence is thrown upon the defendant; provided the jury further believe from the evidence that the plaintiff, at the time he received the injury, if the jury believe from the evidence that the plaintiff did receive injury, was acting with due care and caution.’ There was evidence that the train made two stops before it reached the crossing of the Illinois Central Railroad,-first at or near the platform of Starne's Station, though but momentarily, and again started with a violent jerk, and then some 50 or 60 yards further, and east of the platform, where ample time was given to passengers to get off. It was shown by the evidence that this train, which is called the ‘Lightning Express,’ was not scheduled or required to stop at Starne's Station, but it was required by law to stop within 800 feet of the crossing of the Illinois Central Railroad, which was shown to be 502 feet east of the platform at Starne's Station. There was ample evidence, if the jury believed it, that this lightning express train, going east, sometimes stopped at the platform at Starne's, sometimes stopped before reaching it, and often east of the same, and that passengers were in the habit of getting on and off the train at the place where it stopped before reaching the intersection of the two roads. In this case there was evidence that the engineer whistled before reaching the platform at Starne's Station, and slackened the speed of the train until the coach in which the plaintiff was riding reached said platform, when the train came to a stop. It is true that there was a conflict in the evidence on this point; those of the witnesses testifying to the stoppage of the train at the platform say it was a very short one,-only a moment or a second,-when the train started again with a sudden, violent jerk, so strong as to almost throw down those standing on their feet in the cars. The plaintiff testified that, knowing the train would stop there for a very short time only, and that there were a good many passengers to get off there, he went to the rear end of the car next the smoking-car, and sat down on the steps, so as to be able to get off before the rush of the other passengers came; and he as well as others testified that the train came to a full stop in front of the platform. He was to some extent corroborated also in this from the fact that his jug, after the injury, was found sitting on the platform. He testified that he stepped one foot on the platform, and, before moving the other from the step of the car, the train started suddenly, and with such force as to throw him down, and that the next car struck him as he fell. We agree with counsel for the plaintiff in error that this instruction must have referred to this first, momentary stopping of the train, and not to its stopping east of the platform, as there was no evidence that the train did not then remain long enough to let all the passengers off. While it may be and is true that the train was not bound to stop at the platform to discharge its passengers bound for that station, it might stop at any place within...