Omaha Street Railway Company v. Craig

• Decision Date: 06 March 1894
• Docket Number: 5519
• Citation: 58 N.W. 209,39 Neb. 601
• Parties: OMAHA STREET RAILWAY COMPANY v. MARGARET CRAIG
• Court: Nebraska Supreme Court

58 N.W. 209

39 Neb. 601

OMAHA STREET RAILWAY COMPANY v. MARGARET CRAIG

No. 5519

Supreme Court of Nebraska

March 6, 1894

ERROR from the district court of Douglas county. Tried below before FERGUSON, J.

AFFIRMED.

John L Webster, for plaintiff in error:

It is negligence to leap from a moving street car. (Hagan v Philadelphia & G. F. R. Co., 15 Phila. [Pa.], 278.)

If passenger signaled the car to stop and the car immediately began to slow down speed, and the passenger, without waiting for the car to stop, did step from the car while in motion and was injured, he cannot recover. (Harmon v. Washington & G. R. Co., 6 Mackey [D. C.], 64.)

A passenger in the act of stepping down from the front platform of a street car, and when his foot was nearly on the ground the driver let go the brake and the car started, and he was thrown down and injured, cannot recover. (Brown v Congress & Baker Street R. Co., 49 Mich. 153.)

The boarding or alighting from a moving train is presumably and generally a negligent act per se. It is not sufficient to rebut the presumption of negligence that the trainmen acquiesced in the action of the passenger, or that the company failed to stop at the appointed place. (Solomon v. Manhattan R. Co., 103 N.Y. 437.)

Where one is injured by attempting to get off a moving street car, unless some act of negligence on the part of the company or its servants producing the injury is shown, it is not error to enter a nonsuit. (Stager v. Ridge Avenue P. R. Co., 119 Pa. St., 70.)

In a case where it appeared a person attempted to board a street car while in motion, and that his foot slipped from the step caused by a jolt of the car, nonsuit was properly entered. (Reddington v. Philadelphia Traction Co., 132 Pa. St., 154.)

To alight from a moving street car without notice to the person in charge forbids recovery, though the injury resulted from the sudden starting of the car. (Nickols v. Middlesex R. Co., 106 Mass. 465.)

To alight after ringing bell to stop, and failure of car to stop, but only slackened speed, is not justified. (West End & Atlantic Street R. Co. v. Mozely, 79 Ga. 463.)

The fact that the train is about to pass the place of the passenger's destination without stopping will not justify him in jumping from the train. (Reibel v. Cincinnati, I., St. L. & C. R. Co., 114 Ind. 476.)

In alighting from a moving train, it is not sufficient to prove that a prudent person would have done the same thing under the same circumstances, but it must always be made to appear that the company did some act or was guilty of some negligence which contributed to the injury. (Gulf, C. & S. F. R. Co. v. Wallen, 65 Tex. 568.)

It is contributory negligence to jump from a moving train just before it has stopped, but while train is being brought to a stop. (Savannah, F. & W. R. Co. v. Watts, 82 Ga. 229.)

Where conductor promised to let passenger off, not at a station but at a street crossing, and then neglected to stop at the street crossing, and passenger got off while train was in motion, no recovery can be had in suit for damages for injury sustained. (Watson v. Georgia Pacific R. Co., 81 Ga. 476.)

It is negligence for a passenger to jump from a railroad train moving from six to twelve miles an hour, although the conductor advised him that it was safe. (Bardwell v. Mobile & O. R. Co., 63 Miss. 574; Chicago & A. R. Co. v. Randolph, 53 Ill. 510; Baltimore & P. R. Co. v. Jones, 95 U.S. 439; Dowell v. Vicksburg, 61 Miss. 579; Lake Shore & M. S. R. Co. v. Bangs, 47 Mich. 470; Burrows v. Erie R. Co., 63 N.Y. 556; Morrison v. Erie R. Co., 56 N.Y. 302; Vimont v. Chicago & N. R. Co., 71 Iowa 58; Missouri P. R. Co. v. Texas & P. R. Co., 36 F. 879.)

Attempting to board a train running six miles an hour is negligence per se, even though conductor told man to jump on. (Hunter v. Cooperstown & S. V. R. Co., 2 L. R. A. [N. Y.], 832.)

The residents of a municipality must be held to know the rule as to the place of stopping of trains of street cars prescribed by the ordinances of the city. (North Birmingham Street R. Co. v. Calderwood, 7 So. Rep. [Ala.], 360.)

The ninth instruction was erroneous. The rule is that if the plaintiff was guilty of contributory negligence, or, in other words, guilty of negligence contributing to the injury, then the plaintiff cannot recover. (Philadelphia & R. R. Co. v. Boyer, 97 Pa. St., 91; New Jersey Express Co. v. Nichols, 33 N.J.L. 434; Wilds v. Hudson River R. Co., 24 N.Y. 430; Toledo & W. R. Co. v. Goddard, 25 Ind. 185; Baltimore & O. R. Co. v. State, 60 Md. 449.) In Illinois an exception to this rule exists to the extent and with the limitation that if the plaintiff's negligence is slight and the defendant's negligence in comparison should be gross, then such slight negligence of plaintiff will not prevent recovery. (Chicago, B. & Q. R. Co. v. Lee, 60 Ill. 501; Illinois C. R. Co. v. Hammer, 85 Ill. 526; Chicago, B. & Q. R. Co. v. Harwood, 90 Ill. 425; Chicago & A. R. Co. v. Langley, 2 Ill. App., 505; North Chicago Rolling Mills Co. v. Monka, 4 Ill. App., 664; City of Winchester v. Case, 5 Ill. App., 486; Pittsburgh, C. & St. L. R. Co. v. Shannon, 11 Ill.App. 222; Peoria, D. & E. R. Co. v. Miller, 11 Ill.App. 375; Moody v. Peterson, 11 Ill.App. 180; Union Railway & T. Co. v. Kallaher, 12 Ill.App. 400.) The supreme court of Nebraska has decided the question to the effect that if plaintiff's slight negligence, if any, contributed directly to the alleged injury, the verdict should be for the defendant. (City of Lincoln v. Gillilan, 18 Neb. 114.)

Cowin & McHugh, contra:

We maintain that the following propositions cannot be successfully controverted: (1.) The same degree of care and caution is not required of a person in getting on or off a street railway car as is required in getting on or off a steam railway car. (2.) The plaintiff, Miss Craig, was not guilty of negligence, when she found the car nearly at a dead still, in rising from her seat and putting one foot upon the side board step, ready to step off when the car should completely stop. (3.) If Miss Craig was guilty of negligence in rising from her seat, under the circumstances, and putting one foot upon the side board, ready to step off when the car should cease to move, yet, if the gripman saw her in that position and, instead of entirely stopping the car, propelled it forward, which caused more or less of a jerk, by reason of which she was thrown and injured, she is entitled to recover. (4.) If the conductor and gripman, one or both, knew that a passenger was to alight at Cass street and, in addition to that, the bell was rung for a stop, and that when the car nearly came to a stop, barely moving, Miss Craig arose from her seat, took a step with one foot upon the side board, ready to step with the other immediately after the car should cease moving, and the car suddenly started forward, before entirely stopping and giving her an opportunity to get off, and that such forward movement caused her to be thrown to the ground and injured, then she is entitled to recover, whether the gripman and conductor, or either, saw her in her standing position or not, for the reason that it was their, or one of their duties to see that the car came to a full stop, and that the passenger had alighted before accelerating the speed of or propelling forward the car. (5.) It is not prima facie evidence of negligence to get on or off even a steam passenger train, much less a street car, while the train is moving at a speed of four or five miles an hour. (Louisville & N. R. Co. v. Crunk, 21 N.E. [Ind.], 31; Birmingham U. R. Co. v. Smith, 8 So. Rep. [Ala.], 86; Evansville & C. R. Co. v. Duncan, 28 Ind. 441; Jeffersonville, M. & I. R. Co. v. Hendricks, 41 Ind. 48; Montgomery & E. R. Co. v. Stewart, 8 So. Rep. [Ala.], 708; Union P. R. Co. v. Mertes, 35 Neb. 204; Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551; New York, P. & N. R. Co. v. Coulbourn, 16 A. [Md.], 208; Lacas v. Detroit City R. Co., 52 N.W. [Mich.], 745; Britton v. Grand Rapids Street R. Co., 51 N.W. [Mich.], 277; Beems v. Chicago, R. I. & P. R. Co., 12 N.W. [Ia.], 223; Bowie v. Greenville Street R. Co., 10 So. Rep. [Miss.], 574; Central Railroad & Banking Co. v. Miles, 6 So. Rep. [Ala.], 696; Ridenhour v. Kansas City Cable R. Co., 13 S.W. [Mo.], 889; Houston v. Gate City Street R. Co. , 15 S.E. [Ga.], 323; Gallagher v. West End Street R. Co., 30 N.E. [Mass.], 480; Buck v. People's Street R. & E. L. & P. Co., 18 S.W. [Mo.], 1090; Lent v. New York C. & H. R. R. Co., 24 N.E. [N. Y.], 653; Hays v. Gainesville Street R. Co., 8 S.W. [Tex.], 491; Strand v. Chicago & W. M. R. Co., 31 N.W. [Mich.], 184.)

The following cases are cited in support of the ninth instruction: Orleans Village v. Perry, 24 Neb. 831; Lake Shore & M. S. R. Co. v. Johnson, 26 N.E. [Ill.], 510; Terre Haute & I. R. Co. v. Voelker, 22 N.E. [Ill.], 20.

OPINION

The facts appear in the opinion.

RAGAN, C.

Miss Margaret Craig brought this suit in 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 cars 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 foot-board upon which passengers stepped on entering or leaving the car. At the end of each seat there were uprights with...