Mendelson v. Davis

• Decision Date: 28 April 1922
• Docket Number: 5886.
• Citation: 281 F. 18
• Parties: MENDELSON v. DAVIS, Director General of Railroads.
• Court: U.S. Court of Appeals — Eighth Circuit

281 F. 18

MENDELSON v. DAVIS, Director General of Railroads.

No. 5886.

United States Court of Appeals, Eighth Circuit.

April 28, 1922

Concurring Opinion, May 26, 1922.

Halleck F. Rose, of Omaha, Neb. (Isidor Ziegler, John F. Stout Arthur R. Wells, and Paul L. Martin, all of Omaha, Neb., on the brief), for plaintiff in error.

Norris Brown, of Omaha, Neb. (Irving F. Baxter and Dana B. Van Dusen, of Omaha, Neb., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and TRIEBER and MUNGER, District Judges.

TRIEBER District Judge.

This is an action by the plaintiff in error to recover damages for injuries alleged to have been sustained by him while a passenger on a railway train operated by the defendant as Director General of Railroads. The parties will be referred to as they appeared in the court below.

The material allegations of the complaint are that the train on which the plaintiff was a passenger, going from one point in the state of Iowa to another in that state, was a vestibuled train, so as to form a continuous inclosed passageway throughout its full length, and when the doors are closed the vestibule is completely inclosed, so that it is impossible for a passenger passing from one car to another to fall from the train; that, desiring to smoke, he passed out of the chair car, where he had occupied a chair, through the vestibule, to the smoking car, and, finding it crowded undertook to return to the chair car; that the defendant had negligently caused the trapdoor of one of the outside openings on the vestibule to be and remain open while the train was in rapid motion, and permitted the track over which the train was at the time being operated to become defective, so that trains passing over it could not be operated with safety, all of which defects were open and obvious, and permitted to so remain out of repair. By reason thereof the train, while plaintiff was passing through the vestibule, gave a sudden and violent lurch, whereby he became unbalanced, lost his footing, and was thrown violently through said open vestibule door, suffering serious injuries of a permanent nature. The damages claimed are $100,000.

The answer, in addition to a general denial, pleaded that plaintiff was an intrastate passenger in the state of Iowa, in which state the alleged accident occurred, and that under the laws of that state he, as a passenger, assumed the risk of any injury caused by conditions known to him; that the vestibule door, alleged to have been open at the time, if open, was in full view of the plaintiff, and therefore he assumed the risk and danger of passing said vestibule door, because its condition, when opened or closed, was open and obvious to him. In another paragraph contributory negligence was pleaded, in which case he could not, it is alleged, under the laws of the state of Iowa recover for alleged injuries. In his reply plaintiff denied these allegations. There was a trial to a jury, and a verdict for the defendant.

There are three assignments of error, in addition to one that the court erred in rendering judgment on the verdict, and another that the court erred in denying plaintiff's motion for a new trial, neither of which last two is subject to review in this court, as has been so frequently decided by this court, as well as every other national court, including the Supreme Court of the United States, that it is useless to cite authorities. The other assignments of error are that the court erred in charging the jury--

I. 'Well, if you find in this case, now, that this company did not leave that door open, that the defendant, through its agents or brakeman or conductor, or anybody else, did not leave the vestibule door open, that it is not responsible for having that door open at that time, you will have to find for the defendant in this action, gentlemen, have to find for the defendant in this action. In other words, under the peculiar circumstances in this case, the length of time that elapsed between Rinard, the last station before Lohrville, and the place where this man fell off, in view of the things that were done, and the time that elapsed, if somebody else opened that door, there is no evidence here to justify the finding that there was negligence on the part of the employees of the railway. So, if that was opened by somebody else, whether the plaintiff or some stranger, there can be no recovery in this action.'

And in refusing to charge as follows:

II. '(6) A passenger who undertakes to go from one vestibuled car to another while the train is in motion assumes only such risks as are incident to passing from one vestibuled car to another in the ordinary operation of the trains, and does not assume risks of sudden or violent jerks, that are not incident to the ordinary operation, and does not assume acts of negligence on the part of the carrier's servants.'

III. '(8) In employing vestibuled passenger coaches as an equipment of a passenger train, the carrier assumes the duty of maintaining them in a reasonably safe condition. One purpose of the vestibule is to add to the comfort, safety, and convenience of passengers, particularly while passing from one coach or car to another, and the presence of such appliances is an assurance to the passenger that the carrier has provided a safe means of passage from one car to another, and is an invitation for him to use it as his convenience or necessity may require. Whether defendant failed on the occasion in question to keep the outside door of the vestibule closed, and whether failure to do so was negligence, and the proximate cause of plaintiff's injuries, are questions for your determination from the evidence; and the issue of negligence in this behalf is to be determined by a consideration of whether a person of ordinary prudence engaged in the business of transporting passengers by a vestibuled train on a steam railway, in the exercise of the highest degree of care and diligence that can reasonably be exercised, consistent with the practical operation of the road, would have done so in the circumstances existing.'

There was substantial evidence that when the train left Rinard, the last station before Lohrville, between which stations the alleged accident occurred, the vestibule...