Raben v. Cent. Iowa Ry. Co.

• Decision Date: 24 October 1887
• Parties: RABEN v. CENTRAL IOWA RY. CO.
• Court: Iowa Supreme Court

74 Iowa 732

34 N.W. 621

RABEN

v.CENTRAL IOWA RY. CO.

Supreme Court of Iowa.

October 24, 1887.

Appeal from circuit court, Keokuk county.

This is an action for the recovery of damages for a personal injury sustained by plaintiff, as is alleged, while alighting from a passenger train on defendant's railway. The cause was tried to a jury, and there was a verdict for plaintiff for $3,000. Defendant filed a motion in arrest of judgment, also a motion for a new trial. The circuit court overruled both of these motions, and entered judgment on the verdict. Defendant appealed.Blair & Daily and George D. Wooden, for appellant.

Sampson & Brown, for appellee.

REED, J.

1. The material allegations of plaintiff's petition are that defendant was engaged in operating a line of railroad on which it ran passenger trains, and carried passengers for hire. That plaintiff entered one of its trains as a passenger at Brighton, having purchased a ticket at that station to Clay, another station on defendant's line, and being accompanied by her two young children. That the conductor took up her ticket and knew she was a passenger for Clay. That when the train arrived at Clay she immediately started to leave it, but that the conductor, in violation of defendant's duty to her to permit the train to remain standing at the platform a sufficient length of time to enable her to alight from it with safety, caused it to be started forward before she had time to alight from it. That her children were taken from the train about the time it was started forward, and that she, believing that the speed of the train was not such but that she could with safety jump from the second step, and desiring not to be carried away from her children, did jump to the platform, but by the motion of the train she was thrown down upon the platform, and seriously and permanently injured. It is also alleged that the conductor did not assist her to alight from the train, or inform her that it would be dangerous for her to attempt to alight while it was in motion. Also that she was not herself guilty of any negligence which contributed in any manner to the injury.

The ground of the motion in arrest of judgment is that upon the facts stated in the petition plaintiff is not entitled to recover. The positions urged by counsel for appellant are: (1) That independently of any statutory provisions in the subject the act of alighting from a moving train is negligent, and the passenger who attempts to do the act, and is injured in consequence thereof, can have no remedy for the injury against the company; and (2) as the act is forbidden, and is punishable as a crime by express statute, the party sustaining an injury while committing it cannot recover damages for the injury.

With reference to the first position we deem it sufficient to say that it cannot be said, as matter of law, independently of the statute, that it would be under all circumstances an act of negligence for a passenger to attempt to alight from a moving train. But the question is ordinarily one of fact, to be determined by the jury from all the circumstances of the transaction. It is true, a case might arise in which it would be the duty of the court to determine the question as matter of law. This would be true if there were no disputed facts; and but one conclusion could fairly be drawn from the facts established. But if the facts are in dispute, or if different conclusions might fairly be reached by different minds from the facts established, the question is for the jury. Whitsett v. Railway Co., 67 Iowa, 150, 25 N. W. Rep. 104. By the allegations of the petition all negligence on the part of the plaintiff was denied, and under them she was entitled to prove, if she could, that the injury to her was not reasonably to be apprehended from the act. On the question whether the act of alighting from a moving train is negligence per se, see Nichols v. Railway Co., 68 Iowa, 732, 28 N. W. Rep. 44;Lindsey v. Railway Co., 64 Iowa, 410, 20 N. W. Rep. 737;Vimont v. Railway Co., 32 N. W. Rep. 100.

The statute relied on in support of the second position urged is section 2, c. 148, Laws of the Sixteenth General Assembly, which is as follows: “If any person not employed thereon, or not an officer of the law in the discharge of his duty, without the consent of the person having the same in charge, shall get upon or off any locomotive engine or car of any railroad company while said engine or car is in motion * * * he shall be guilty of a misdemeanor, and be punished by fine not exceeding $100, or be imprisoned not exceeding thirty days.” It is insisted that the facts alleged in the petition show that plaintiff's act in jumping from the train was in violation of this statute. It is to be observed, however, that the statute does not forbid the doing of the act under all circumstances. If plaintiff had the consent of the conductor to alight from the train while it was in motion, she did not incur the penalty imposed by it by doing the act. If she cannot recover because of the statute, it is because she acted in violation of its provisions. Her act was negligent, because unlawful. But she averred in her petition that she was not guilty of any negligence contributing to her injury. We think she was entitled to prove that she did the act with the consent of the conductor. No other averment was necessary to entitle her to prove that fact. The petition is therefore sufficient, and the motion in arrest of judgment was properly overruled.

2. There was evidence given on the trial which tended to prove that the circumstances of the accident were substantially as charged in the petition. There was no direct evidence, however, that the conductor, who was in charge of the train, consented that plaintiff might alight while it was in motion. Neither was it shown that he knew when he started the train that plaintiff had not yet alighted from it. Now, was the question whether his consent...