Omaha St. Ry. Co. v. Craig

• Decision Date: 06 March 1894
• Citation: 58 N.W. 209,39 Neb. 601
• Parties: OMAHA ST. RY. CO. v. CRAIG.
• Court: Nebraska Supreme Court

39 Neb. 601

58 N.W. 209

OMAHA ST. RY. CO.

v.CRAIG.

Supreme Court of Nebraska.

March 6, 1894.

Syllabus by the Court.

1. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury; but, where the facts are such that all reasonable men must draw the same conclusion from them, the question of negligence is one of law, for the court. Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, and authorities in support of this rule collated in opinion, followed.

2. Whether alighting from a moving train constitutes negligence or not is a fact to be determined by the jury, taking into consideration all the circumstances in evidence in the case.

3. Negligence is a failure to do what reasonable and prudent persons would ordinarily have done under the circumstances and situation, or doing what reasonable and prudent persons, under the existing circumstances, would not have done.

4. Plaintiff sued the defendant, a street-railway company, for damages for injuries she alleged she sustained through the negligence of defendant's servants, while a passenger on its car. The car on which plaintiff rode was an open one, having seats crosswise, and on either side a platform on which persons stepped in entering or leaving the car. At the end of each seat was an upright provided with a handhold. Plaintiff testified that on entering the car she informed the conductor that she wished to alight at Cass street, to which he answered, “Yes, ma'am;” that, when the car reached the Cass street crossing, she rang the bell; the gripman applied the brake, and brought the car almost to a standstill; that, thinking it would stop every instant,--without using the handhold,--she stepped onto the platform, preparatory to stepping onto the street when the car came to a full stop, and while in that position, and seen by the gripman, he released the brake, and suddenly accelerated the car's speed, with a jerk, which threw plaintiff onto the street. Held: (1) Whether plaintiff was guilty of contributory negligence in stepping onto the platform of the car while in motion, and in not using the handholds on the uprights, were questions of fact, for the jury. (2) That the jury's finding that plaintiff was thrown from the platform by the cause and in the manner she testified would not be set aside, as not supported by the evidence, because two witnesses testified that she stepped from the platform onto the street, nor because two witnesses swore there was no sudden acceleration of the speed of the car, and three witnesses swore that they did not observe any.

5. This court will not weigh conflicting evidence, nor pass judgment upon the credibility of witnesses.

6. Certain instructions given by the trial court to the jury set out in the opinion, and approved.

7. Such expressions as “slight negligence” and “slight want of ordinary care” should never be used in instructions to juries, as such expressions tend to obscure and confuse what should be stated in plain and concise language.

8. To qualify a person to act as a juror, he should not only be unbiased and unprejudiced against all parties to the suit, but he should stand indifferent as to the success of either party thereto; and a person called as a juror, who testifies that his acquaintance with one of the parties will interfere with his judgment and finding in the case, should be excused.

Error to district court, Douglas county; Ferguson, Judge.

Action for personal injuries by Margaret Craig against the Omaha Street-Railway Company. There was judgment for plaintiff, and defendant brings error. Affirmed.

John L. Webster, for plaintiff in error.

Cowin & McHugh, for defendant in error.

RAGAN, C.

Miss Margaret Craig brought this suit to the district court of Douglas county against the Omaha Street-Railway Company (hereinafter called the company) to recover damages for a personal injury which she alleges she sustained by reason of the company's negligence, while she was a passenger on its car, on September 22, 1889. The defenses of the company were a general denial, and contributory negligence on the part of Miss Craig. There was a finding and judgment for Miss Craig, and the company prosecutes error.

The car on which Miss Craig was a passenger was the last of a train of two cars moved by an endless cable. The rear car was an open or summer car, having seats across the same, and on either side a footboard, upon which passengers stepped, on entering or leaving the car. At the end of each seat there were uprights, with handholds attached. The train was in charge of a conductor and gripman. Miss Craig boarded the train at the intersection of Dodge and Twentieth streets in the city of Omaha, and occupied the rear seat. The train was moving north on said Twentieth street, and Miss Craig was to alight at the intersection of Twentieth and Cass streets, and on the north side of the latter. It was the rule or custom of the company to stop its Twentieth street cable cars just on the north side of said Cass street. Miss Craig's evidence of the casualty was substantially as follows: “A. Well, when he came to collect the fare at Davenport street, I told him to stop at Cass street. He answered, ‘Yes, ma'am.’ And when the car was crossing Cass street, I noticed they wasn't going to stop, and I rang the bell, and sat back in the seat, and waited for quite a little while. And finally they slowed up the car, and it didn't-- And they slowed up the car, and it was going very slow; and I looked at the gripman, to see if he was going to bring the car to a standstill, and he looked back at me,--it was moving very slow,--and then I took the step, to step off. Q. Where did you take the step? Onto what? This rail? A. On that side rail, yes, sir. Q. When you took the step-- When you put your foot out, and took that step, onto the east rail, for the purpose of stepping off, what was the motion of that car then? A. Oh, you could tell it was just slowly moving. You would think it would stop in a second. Instead, when I went to take my last step, why, he let the brake off, and the car started forward with a sudden jerk, and that jerk threw me. Q. When you arose up to step on the rail, how near had the car stopped? A. Well, it was just moving along very slowly. It was not-- It hadn't come to a standstill,--stopped altogether,--but it was moving. You would think it would stop at any time. And I waited quite a little after I raised from the seat, to give him plenty of time to bring the car to a stop. Q. When you were on this rail, ready to step off one step, was the gripman looking at you? A. Yes, sir. Q. Did you see him? A. Yes, sir; he looked around to see--I had an idea--if I got off, or was going to get off. Q. But when you were there, and it was going slow, was he looking at you,--when you were there, on the rail, ready to step off? A. Yes, sir; he turned and looked at me the second time, before I got off. Q. And then the car jerked ahead? A. Yes, sir.” Cross-examination: “Q. But the train had not got quite to a full stop when you did step off? A. I had not yet stepped. Q. So, from the seat you were sitting in, if you wanted to alight from that car, the first thing you would do would be to put your foot out on this footboard that ran along the side of the car? A. Well, I didn't do that. Q. Well, I am not asking you how you did it. Isn't that the first thing you would step onto,--would be the platform? A. Well, I would raise out of the seat. I would stand in a straight standing position, first, before I would attempt to step down. Q. Now, why did you not wait till the car had come to a full stop? A. Why, the car was moving so slow that you would think it would stop every instant, and it was merely moving, and I had stepped down onto the side rail or footboard, and thought all the time it would stop. And I took that step onto the footboard, thinking that the car would be stopped; and, in place of coming to a real standstill,--stopping perfectly still,--it gave a sudden jerk forward, and that jerk had thrown me off of that footboard. Q. Why didn't you wait until the car had come to a full stop before you stepped out on that footboard? A. Well, the car was moving so slow, and the gripman looked-- I noticed the gripman twice, to see if he was going to bring it to a stop, and he looked back twice, to see if I had got off; and it was moving so slow that I thought it would be stopped all the time, and I would step onto that footboard. And it didn't. It went on. And, if it had moved at the rate it was going then, I could have stepped off in perfect safety, but that sudden jerk threw me. Q. So you assumed or thought you could step down with safety off the car, if the car maintained simply the motion it then had? A. Well, I wasn't going to try it. Q. Well, but, if you had grabbed hold of that, [the post,] you would not have fallen, would you? A. Well, I would, with the jerk the car had taken. Q. You think you would, anyhow? A. Yes, sir; it jerked forward very suddenly. Q. Now, you say, after you had got onto that footboard, that the car made a jerk? A. Yes, sir. Q. That is the way you think it was? A. Yes, sir. Q. When you got onto that footboard, which way were you looking? A. Well, I glanced at the gripman just as soon as I took the step down on the footboard, for I thought, every second, the car would come to a standstill. Q. And you didn't know at the time of this accident any more about it than you know? A. Well, I know he let the car go forward when he hadn't ought to-- Q. You think that you didn't step from that footboard onto the ground? Is that correct? A. That I didn't step? Q. Yes. A. Why, no; I didn't. I didn't step. The car jerked forward, and threw me, before I had time to step. Q. Then you didn't step from the platform onto the ground? A. No, sir.” This testimony is contradicted by the witnesses...