Norvell v. Kanawha & M. Ry. Co.
| Decision Date | 03 May 1910 |
| Citation | 68 S.E. 288,67 W.Va. 467 |
| Parties | NORVELL v. KANAWHA & M. RY. CO. |
| Court | West Virginia Supreme Court |
Rehearing Denied June 11, 1910.
Syllabus by the Court.
It is negligence in a passenger, under ordinary circumstances, to stand upon an open platform of a rapidly moving railroad car. If one voluntarily and unnecessarily takes such position and is injured in it he cannot recover damages.
To ride on a car platform is not always a negligent act. If the train is so crowded that one cannot reasonably enter a car, it is not negligent to ride on the platform when the carrier acquiesces in the use of such accommodations by collecting fare for the same or by some other indicative act.
The carrier owes to a passenger unvoluntarily, necessarily and rightfully riding on the platform the high degree of care commensurate with the circumstances and its act in undertaking to carry him there.
Injury to a passenger while excusably riding on the platform because of the overcrowding of the train usually constitutes a prima facie case of negligence on the part of the carrier.
The liability of the carrier to one excusably riding on the platform is not absolute. If it used reasonable diligence to provide cars for his safe carriage, and, with fair excuse for failing to provide them, exercised the increased care demanded by the passenger's enforced position on the platform, it is not liable for injury to him.
If a railroad company negligently and unreasonably fails to provide sufficient cars so that passengers are compelled to ride on the platforms and then accepts passengers for carriage in such hazardous places, it is liable for damages to one injured therein, unless he has contributed to the injury by negligence on his part.
The conductor of a train represents the railroad company in relation to the transportation of passengers on his train and his act in receiving and carrying passengers on the platforms when the train is overcrowded binds the company.
The court cannot properly direct a verdict in a case turning on a conflict of evidence which makes the material facts so doubtful that a verdict for either party would be sustained.
A written release or acquittance of a claim for personal injury will not sustain a plea of accord and satisfaction in the premises if its execution was obtained by deception and fraud.
(Additional Syllabus by Editorial Staff.)
Whether a release of liability for injury was obtained by a carrier from a passenger by fraud, held, under the evidence to be for the jury.
Error to Circuit Court, Mason County.
Action by J. C. Norvell against the Kanawha & Michigan Railway Company. Judgment for defendant, and plaintiff brings error. Reversed, and new trial granted.
Charles E. Hogg and Somerville & Somerville, for plaintiff in error.
Brown Jackson & Knight, for defendant in error.
ROBINSON P.
Norvell, the plaintiff, riding on a platform of a crowded train, fell therefrom and was injured. He sued the railroad company for damages. The company defended upon the ground that there was no negligence on its part; that plaintiff's injury was caused by his own negligence; and that, at any rate, full accord and satisfaction for the injury had been made. The case came on for trial and all the evidence was adduced before the jury. The defendant moved the court to direct a verdict in its favor. The motion was granted, verdict for the defendant was returned, and judgment upon the same was entered. The plaintiff asks a reversal of that judgment.
Was the case one for jury determination? It is contended that the evidence was conflicting and that therefore the case should have been submitted to the jury. The pleadings made the case to involve two main inquiries--whether negligence on the part of defendant in the overcrowding of its cars caused plaintiff's injury, and, if so, whether accord and satisfaction therefor had been made. A conflict of evidence as to each of these propositions is claimed.
It is negligence in a passenger, under ordinary circumstances, to stand upon an open platform of a rapidly moving railroad car. If one voluntarily and unnecessarily takes such position and is injured while there he cannot recover damages. His contributory negligence bars recovery. But to ride in such place is not always a negligent act. Whether it is negligent to ride on the platform may depend on circumstances. If the train is so crowded that one cannot reasonably enter a car, and no safer place on the train is reasonably obtainable, it is not negligent to ride on the platform when the circumstances thus force the passenger to do so and the carrier acquiesces in the use of such accommodations by collecting fare for the same or by some other indicative act. What other choice has a passenger but to ride on the platform when the carrier, negligently or unavoidably, fails to provide safer accommodations for him? Must he forego his journey and the engagements dependent upon it, or his return to home at the expected time? It is not reasonable to say that he is obliged to do so. He may accept such accommodations when they are the best offered to him and rely upon the carrier to take the greater care and diligence in transporting him which are commensurate with the increased dangers of the situation in which it has placed him as a passenger. The carrier's duty to him in such situation is to use the high degree of care which its act in undertaking to carry him on the platform demands. If it fulfills that duty, and is free from negligence in other particulars, it may be absolved from damages if he is injured. Its liability for injury to him in the premises is not absolute. But injury to him in such dangerous situation, if he is obliged to take that place of carriage for want of a safer one, may make a prima facie case of liability. The liability will not exist, however, when the carrier shows that it exercised reasonable diligence to provide cars for his safe carriage, and, with a fair excuse for failure to provide them, used the increased care demanded by the lack of a safer place for his transportation. Nor will the liability exist when it appears that the passenger, by not conducting himself with the care and prudence which his position on the platform required, did that which was the proximate cause of his injury. Baldwin on American Railroad Law, 309; Moore on Carriers, 856; Hutchinson on Carriers (3d Ed.) §§ 1197, 1198; 6 Cyc. 623, 653.
If a railroad sees fit to earn a revenue by offering to the public hazardous accommodations on the platform, why should it not assume liability for the dangers incident to its own act in so doing? In justice and reason it must do so, unless it shows that it provided the best accommodations that it could under all the circumstances attending the running of its train and then exercised the degree of care that it owed to those it undertook to carry in those accommodations. This is neither a strict nor an unjust rule. If the carrier is taken unawares by unusual and unexpected demand for passage and has not safe accommodations to offer, it may justly and without liability decline to take
on board more than the room within its cars will admit. The conductor in charge of the train may refuse to...
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