Smitson v. Southern P. Co.

• Decision Date: 16 April 1900
• Citation: 37 Or. 74,60 P. 907
• Parties: SMITSON v. SOUTHERN PAC. CO.
• Court: Oregon Supreme Court

60 P. 907

37 Or. 74

SMITSON v. SOUTHERN PAC. CO.

Supreme Court of Oregon

April 16, 1900

Appeal from circuit court, Lane county; J.C. Fullerton, Judge.

Action by Jennie Smitson against the Southern Pacific Company. From a judgment in favor of the plaintiff and from an order denying a new trial, defendant appeals. Affirmed.

This is an action to recover damages for personal injuries. It is alleged in the complaint, in substance, that on July 29 1897, plaintiff was a passenger on defendant's train from Coburg to Springfield, Or., and as the train approached the latter station, about 9 o'clock p.m., the signal whistle was given, the speed gradually slackened, and the train stopped about 125 feet from the platform of the station that, the night being dark, the brakeman invited plaintiff to alight, whereupon she rose, and, with his knowledge, followed him to the front platform of the car while the train remained stationary, and, believing that the train had reached the station, plaintiff, with the brakeman's knowledge commenced to descend the car steps, without being notified that the train had not reached the station or warned that it was dangerous to alight, and while so descending the steps the train was suddenly started with a jerk, causing plaintiff to fall beneath the car, which ran over her legs, crushing them, and necessitating their amputation. The answer denies the charge of negligence, and alleges that plaintiff recklessly started out of the coach in which she was riding to the front platform, and down the steps of the car, while the train was moving, and before it reached the station, and sustained the injury of which she complains in consequence of her own carelessness. The allegations of new matter in the answer having been denied in the reply, a trial was had, resulting in a judgment for plaintiff in the sum of $10,000, and defendant appeals.

W.D. Fenton, for appellant.

H.W. Thompson and A.C. Woodcock, for respondent.

MOORE J. (after stating the facts).

At the trial, plaintiff having offered her testimony and rested, defendant's counsel moved the court for a judgment of nonsuit, on the ground that she had failed to show any negligence on defendant's part, but, the motion being overruled, an exception was saved. The rule is well settled in this state that a motion for a judgment of nonsuit is in the nature of a demurrer to the evidence, in the disposal of which all the testimony produced by plaintiff is to be regarded as true, together with every intendment and reasonable inference which can arise thereon, and, when so considered, if a difference of opinion may exist as to the conclusions of fact deducible therefrom, the issue should be submitted to the jury for their determination; it being sufficient if the evidence offered tends to support the action, even though remotely. Tippin v. Ward, 5 Or. 450; Herbert v. Dufur, 23 Or. 462, 32 P. 302; Barr v. Rader, 33 Or. 375, 54 P. 210. The plaintiff testified, in her own behalf, that her age was 21 years, 20 of which had been spent in Springfield; and, speaking of the injury, she said that as the train approached her destination, at about 9 o'clock in the evening, the whistle was sounded, and the train stopped; whereupon the brakeman, coming into the car, of which she was the only occupant, said to her, "I will help you out with your things now." That she rose from her seat, took a valise and a package in her right hand, and a package and a hat in her left hand, and followed the brakeman, who opened the door and held it back while she passed to the front platform; that the brakeman crossed over the coupling to the baggage car, and while he was standing with his side towards her, and looking towards the engine, she asked him to take her valise, but, not receiving any reply to her request, she started down the steps, after the car had remained stationary about 15 seconds, and, as she reached the third step, the train was suddenly started with a jerk, throwing her upon the rail, and the car passed over her legs, crushing them, and necessitating the amputation of the right about five inches above, and the left just below, the knee. Etta Smitson, plaintiff's sister, testified that she was at the station when the train arrived on the evening in question; that the night was very dark, and the station lamp unlit; that, standing in the door of the waiting room, she heard the signal whistle given, whereupon she went upon the depot platform towards the incoming train, which stopped about 50 feet from the station; that the train, after remaining stationary about 10 or 15 seconds, was started up with a jerk, and came to the depot. Minnie McPherson corroborates the preceding witness, and says the engine stopped so that the cowcatcher was about 15 feet from where she was standing on the depot platform with Etta Smitson, and that the train, having remained stationary about 10 seconds, moved up to the depot. Henry Smitson, plaintiff's father, testified that the engine stopped about 15 or 20 feet from where he was standing on the platform west of the depot, and that the train, after remaining stationary about 12 or 15 seconds, was started up with a jerk. H. Carter, plaintiff's witness, testified that he was at Springfield when plaintiff was injured; that the train came in that evening very slowly, and stopped about 5 seconds, when it pulled up quickly, the smoke coming in puffs from the engine.

The foregoing is the substance of the testimony produced by plaintiff relative to the cause of the injury, at the time the motion for a judgment of nonsuit was interposed, and, such testimony having tended to prove the allegations of the complaint, does the evidence establish a cause of action sufficient to be submitted to the jury? In Railroad Co. v. Van Horn, 38 N.J.Law, 133, the declaration averred that a conductor, in the nighttime, announced, in a car in which plaintiff was riding, the name of the station at which she intended to leave the train, which stopped before reaching it, and plaintiff, supposing that she had arrived at her destination, attempted to alight, when the train was suddenly put in motion, throwing her to the ground, in consequence of which she was injured, and it was held that the pleading was sufficient; Mr. Chief Justice Beasley saying: "The negligence here complained of was the giving of the false intelligence that the cars had arrived at the station, and by that means inducing plaintiff to go upon the car platform and to endeavor to alight. The court would not be warranted in saying that it is not negligence to give notice of the approach to a station, and then to stop the train short of such station, in the nighttime. Such a course would naturally tend to jeopard passengers; for it would induce them to believe that they had arrived at the station designated, and they would, in the ordinary course, go to the car platform. At night, this must be the inevitable result. It is said, in the brief of the counsel of the defendant, that it was right to give the notice at a long distance from the depot, so that the passengers might prepare to leave the cars. This may do when the train is not to stop before it reaches the station. When a station is called, the passengers have the right to infer that the first stop of the train will be at such station." To the same effect, see Hutch.Carr. § 615; Railway Co. v. Stringfellow, 44 Ark. 322; Boss v. Railroad Co., 15 R.I. 149, 1 A. 9; Taber v. Railroad Co., 71 N.Y. 489; McDonald v. Railroad Co. (Iowa) 55 N.W. 102; McDonald v. Railroad Co., 116 N.Y. 546, 22 N.E. 1068; Railroad Co. v. Farrell, 31 Ind. 408; McGee v. Railway Co., 92 Mo. 208, 4 S.W. 739; Smith v. Railroad Co. (Ala.) 7 South. 119, 7 L.R.A. 323; Railroad Co. v. Arnol (Ill.Sup.) 33 N.E. 204, 19 L.R.A. 313; Devine v. Railroad Co. (Iowa) 69 N.W. 1042; Ward v. Railroad Co. (Ill.Sup.) 46 N.E. 365; Lent v. Railroad Co. (N.Y.App.) 24 N.E. 653. A passenger, having reached his destination, is entitled to reasonable time and opportunity to leave the conveyance that has transported him, and if such vehicle is suddenly started while he is in the act of alighting, and he sustains injury thereby, the carrier is responsible for the negligence which produced the hurt. Hutch.Carr. § 612; 2 Wood, R.R. § 305; Railroad Co. v. Kilgore, 32 Pa.St. 292; Chollette v. Railroad Co., 26 Neb. 159, 41 N.W. 1106, 4 L.R.A. 135.

Under these rules, if the testimony produced by plaintiff was to be believed, the jury might have found that the train stopped before it reached the station; that plaintiff was invited to leave the car, which was then stationary; that she did not know that the train had not reached the depot platform; and that while she was in the act of alighting the train was suddenly started, in consequence of which she was injured. Whether 15 seconds was a reasonable time in which to leave the car was a question for the jury, or, at least, her departure was not so unreasonably delayed that a court could say, as a matter of law, that she was negligent in this respect, and hence no error was committed in refusing to grant the judgment of nonsuit.

When the cause was finally submitted, defendant's counsel renewed said motion, contending that the physical facts demonstrated by the nature of plaintiff's injury, the character of the train, the distance it is said to have moved after it is claimed to have been stopped, the destruction by plaintiff's counsel of a statement prepared by his client respecting the cause and manner of the injury, her admissions in relation thereto, and subsequent contradictory statements the testimony of the witnesses who saw the train, and testified that it made no halt till it reached the station, showed beyond a reasonable doubt that the train did not stop as...