Pennsylvania Co. v. McCaferey

• Decision Date: 21 April 1898
• Citation: 173 Ill. 169,50 N.E. 713
• Parties: PENNSYLVANIA CO. v. McCAFEREY.
• Court: Illinois Supreme Court

173 Ill. 169

50 N.E. 713

PENNSYLVANIA CO.

v.McCAFEREY.¹

Supreme Court of Illinois.

April 21, 1898.

Appeal from appellate court, First district.

Action by Daniel J. McCaffrey against the Pennsylvania Company. From a judgment for plaintiff, defendant appealed to the appellate court, which affirmed the judgment (68 Ill. App. 635), and defendant again appeals. Affirmed.

Phillips, J., dissenting.

Geo. Willard, for appellant.

Duncan & Gilbert, for appellee.

This is an action on the case, brought by the appellee against the appellant company, to recover damages for injuries received by him on December 11, 1894. The appellant company had a double-track line of railroad, running north and south along what is known as Stewart avenue, in Chicago, and across Archer avenue and Twenty-Second street, in that city. On December 11, 1894, appellee was a passenger on one of appellant's in-bound passenger trains, going north from Roby on its east main track. The station of the appellant is a small building near Archer avenue, on the east side of the tracks. The next street north of Archer avenue is Twenty-Second street. On the day in question, the passenger train on which appellee was a passenger consisted of 10 or 11 cars. Appellee was in the third car from the front. When the train stopped, the forward end of the third car stood about in the middle of Twenty-Second street, and a portion of the rear cars stood south of said station, across Archer avenue. There was a track belonging to the appellant west of the east track, on which the train was. Upon the arrival of the train, appellee went forward to the front platform of the third car in which he was riding, and alighted from the car on the west side thereof. His intention was to proceed westerly on Twenty-Second street to his home. There was a space of about seven feet between the east track, on which was the train from which he alighted, and the west track. As he left the car and stepped upon the west track, an engine thereon, bound south, struck him, and threw him in such a way that his left foot was crushed and mangled by the engine wheels so that amputation of the same became necessary; and his right leg was also seriously injured. Upon the trial of the case below, the jury returned a verdict in favor of appellee. Motion for new trial was overruled, and judgment rendered upon the verdict. This judgment has been affirmed by the appellate court, and the present appeal is prosecuted from such judgment of affirmance.

MAGRUDER, J. (after stating the facts).

The first error assigned is that the trial court refused to give the first instruction asked by the appellant. That instruction was as follows: ‘The court instructs the jury that, the pleadings and all the evidence considered, your verdict should be for the defendant.’ The contention of the appellant is that it had provided a station and depot grounds on the east side of the east track, on which the passenger train stopped; that it was the duty of the appellee, when he alighted from the train, to alight upon the east side thereof, where there was no track; and that by alighting upon the west side, where there was a track, he was guilty of what amounts in law to negligence per se, and on this account is not entitled to recover. The declaration consists of three counts, and three additional counts filed by leave of court. These counts alleged, in substance, that it was the duty of the company so to manage its railroad and passenger stations and grounds that passengers could alight from their trains and depart therefrom in safety, and that the company did not regard its duty in this respect, but permitted a locomotive engine to be run upon a track, forming a part of its line of railroad, parallel with the track upon which the passenger train was, and while the latter train was discharging its passengers. The evidence of the plaintiff below, and of many other witnesses, tended to show that for many years it had been the custom or habit of passengers upon the incoming trains of appellant to alight from the cars at Twenty-Second street on the west side thereof. It was also shown that upon the arrival of trains, including the train in question, the company never gave passengers any notice not to alight on the west side of the train upon Twenty-Second street, which is a public thoroughfare in the city of Chicago, nor warned them in any way (by the erection of barriers on the west side of the platforms of the cars, or by stationing an officer to notify them not to alight on the west side) that there was any danger in doing so. There was also introduced in evidence a rule of the appellant company, made and published for the guidance of its servants, which rule is as follows: ‘A train approaching a station where a passenger train is receiving or discharging passengers must be stopped before reaching the passenger train.’ In the present case the evidence tends to show that the passenger train in question had stopped, so that the third car thereof was standing across Twenty-Second street, and that the train which injured appellee, approaching from the north on the west track, did not stop before reaching the passenger train on the east track. Under the circumstances thus detailed, it cannot be said that the act of the appellee is alighting on the west side of the train was in itself, as matter of law, an act of negligence. It was for the jury to determine, from all the facts and circumstances, whether or not the appellee was exercising ordinary care, and whether or not the appellant was guilty of negligence in suffering a train to be moving upon its west track at the time stated.

When appellee alighted, the lreation between himself and appellant was that of passenger and carrier. This relation between a passenger and a railroad company does not cease upon the arrival of a train at the place of the passenger's destination, but the company is still bound to furnish him an opportunity to safely alight from the train. It is its duty not only to exercise a high degree of care while the passenger is upon the train, but also to use the highest degree of care and skill, reasonably practicable, in providing the passenger a safe passage from the train. Railroad Co. v. Hodgson, 18 Colo. 117, 31 Pac. 954; Railroad Co. v. Chancellor, 60 Ill. App. 525. Bishop, in his work on Noncontract Law (section 1086), says: ‘The tracks around the platforms and places for entering and leaving the cars * * * should be made safe, and kept so.’ In McDonald v. Railroad Co., 88 Iowa, 345, 55 N. W. 102, in discussing the question as to the right of a passenger to alight from the rear platform of a car, instead of the front platform thereof, it was said that it was a general custom for passengers to leave the cars from both platforms, and that, because of this custom, passengers had the right to presume, until in some way the contrary appeared, that either platform of a car was accessible for egress, and that, if the right was to be restricted in particular cases, it was the duty of the persons in charge of the train to use precautions against such egress, as by locking the door, or placing a person there to give directions. In Railroad Co. v. Kane, 69 Md. 11, 13 Atl. 387, it was held that, where safe and convenient means of going on and off the cars have been provided by the company, it is the duty of the passenger to make use of such means; but it was at the same time held that this was true only when the railroad recognized the means so provided as the only place where passengers would be received and discharged, and had so ordered. In that case it was said: ‘Wherever a railroad company is in the habit of receiving passengers, whether at the station, or some point outside, passengers have a right to assume that such parts of the premises are in safe condition for such purpose. * * * If the company intended to prohibit passengers from alighting elsewhere than at the platform in front of the station, notice to that effect should have been given.’ In McKimble v. R. R., 139 Mass. 542, 2 N. E. 97, the supreme court of Massachusetts used the following language: ‘If a passenger, he would continue to be such while rightfully leaving the train and station. * * * The defendant [railroad company]...