Sherwood v. Chicago & W.M. Ry. Co.

• Decision Date: 10 October 1890
• Citation: 46 N.W. 773,82 Mich. 374
• Parties: SHERWOOD v. CHICAGO & W. M. RY. CO.
• Court: Michigan Supreme Court

46 N.W. 773

82 Mich. 374

SHERWOOD v. CHICAGO & W. M. RY. CO.

Supreme Court of Michigan

October 10, 1890

Error to circuit court, Kent county; WILLIAM E. GROVE, Judge.

Smith, Nims, Hoyt & Erwin, (M. J Smiley, of counsel,) for appellant.

Fletcher & Wanty, (R. M. Montgomery, of counsel,) for appellee.

LONG J.

On September 4, 1888, plaintiff was a passenger on defendant's road from Benton Harbor to Watervliet, and in alighting from the train at her destination, was seriously and permanently inured, as she claims, through the negligence of defendant's servants. This action was brought in the Kent circuit court, where, on a trial before a jury, the plaintiff was awarded verdict and judgment for $13,388.88. Defendant brings error. On the trial in the court below, the plaintiff's claim was that, when the train reached Watervliet, the name of station was called by one of the trainmen; the train came to a full stop; she arose from her seat, went forward upon the platform, and down upon the steps of the car, and was in the act of stepping off upon the depot platform when the train, without any warning, suddenly started backward, throwing her down, and breaking her hip. That before she got off, the conductor at one of the platforms had assisted several passengers off, and every one aboard the train, except the engineer and fireman, supposed the regular stop had been made, and that all the passengers for that point were expected to alight. On the part of defendant company, it is admitted that the train came to a full stop, but that the engine had gone by the water tank where they expected to take water, and that the engineer backed the train as quick as he could operate the engine. The defendant claimed further, and introduced testimony tending to show, that the train on which the plaintiff was a passenger always stopped at the stand-pipe for water; that, as the engineer passed the standpipe on that occasion, he reversed his engine and released the brakes so that when the train stopped it would back up immediately; that it was impossible at all times to stop at the immediate point of taking water, and, in the event of running past the point a short distance, the usual and proper course is to back up immediately. It appeared from the testimony of some of the witnesses that they were standing in the aisle and on the platform of the car at the time the train was moved back, and did not notice the change in motion, or that the train was in motion until after they had alighted, or had seen the station lights at the depot. Testimony was given by Dr. Stratton and Mr. Lyon that they occupied seats in the chair-car, the one in the rear of the one in which plaintiff was riding; that they got off from the front end of that car, and walked in the direction of the rear of the train 25 or 30 feet, when their attention was attracted to the fall of the plaintiff; that they turned and walked back about 10 feet to where she had fallen. It was claimed from this and other evidence that the train was moving backward when the plaintiff attempted to alight, and, in fact, had moved back a car-length when she fell. The cause was submitted to the jury upon the theory of both the plaintiff and defendant. With their general verdict they returned special findings, which were submitted as follows: "(1) Did the plaintiff, on the occasion in question, attempt to alight from the front end of the car in which she had been riding? Answer. Yes. (2) Did the bell on the locomotive continue to ring until the final stop had been made? A. Yes." Defendant, by its counsel, submitted the following questions for special findings, which the court refused to submit to the jury: "(1) Did the witnesses Dr. Stratton and Mr. Lyon alight from the front end of the chair-car of the train in question? (2) Did they walk in the direction of the rear of the train a distance of about 25 or 30 feet, when their attention was attracted by the fall of the plaintiff? (3) When the attention of the witnesses Stratton and Lyon was attracted by the fall of the plaintiff, did they return to where she had fallen, and reach her in walking a distance of about 10 or 15 feet?" It is contended here by counsel for defendant that these were proper questions to be submitted, and upon which they had a right to a finding by the jury. The argument made in favor of this contention is that the length of time the train remained at a stand-still was of importance, inasmuch as their contention was that the train was moving backward, and had actually moved one car-length, at the time the plaintiff attempted to alight, while the plaintiff contended that it had come to a full stop for the purpose of allowing passengers to alight, and she, seeing others alighting, or about to alight, herself undertook to get off, and just as she was stepping from the car to the platform the train was suddenly started back, and she was thrown upon the platform, and injured. Counsel for defendant contends that if these questions had been answered in the affirmative by the jury their general verdict could not stand, as such answers would have been a finding in effect that the plaintiff was injured through her own negligence in attempting to step off while the train was in motion; for that if Dr. Stratton and Mr. Lyon got off the front end of the car next back, and then walked towards the rear of the train 25 or 30 feet, and, turning around upon seeing plaintiff fall, they reached her by going forward again only 10 feet, it would be a self-evident proposition that the plaintiff did not attempt to get off and step down while the train was at a stand-still, but rather while it was in motion, and had backed near a car-length.

The court was in error in refusing to submit these special questions to the jury. They are plain and unambiguous. They call for findings upon questions of fact. Testimony was given upon the trial tending to support the theory of the defendant that the plaintiff alighted from the train while it was yet in motion. The special questions point to a direct finding upon that branch of the case. Whether or not the plaintiff did alight while the train was in motion was a question of fact for the jury, and upon which the defendant had the right to a special finding. The questions presented the main issue in the case. While the court in its general charge very fairly presented the defendant's theory upon this branch of the case, yet the statute gives the right to either party upon the trial to present questions of fact for the finding of the jury, and, if the questions propounded are presented in unambiguous form, and relate to the questions of fact in issue, the court has no right to ignore them. Harrison v. Railway Co., 44 N.W. 1034. The court instructed the jury as follows: "If the jury find that at the time of the accident, the servants of the defendant brought the train into the station in the usual way, but that, not being able to stop the train at the usual place, it run by a short distance, and that the engineer reversed his engine and caused the train to back up to the proper place at the station without delay, and as quickly as it could be done, and that this was the usual, customary, and proper way of operating the train, then the defendant would not be guilty of negligence for operating the train in that manner, unless that the stop referred to was so made and for such a length of time as to indicate that it was an invitation to passengers to alight, and the movement back wards was made without warning while the plaintiff was in the act of alighting in response to such invitation. If the plaintiff, with the mistaken belief, at the time she arose from her seat for the purpose of leaving the train in question, that it had come to a stop for the purpose of enabling passengers to alight, when in fact the train had not come to a stop, but was running so smoothly and noiselessly that the passengers could only distinguish it by comparison with standing objects; that it ran past...