St. Louis & S. F. R. Co. v. Lee

• Citation: 1913 OK 411,37 Okla. 545,132 P. 1072
• Decision Date: 11 June 1913
• Docket Number: Case Number: 2694
• Parties: ST. LOUIS & S. F. R. CO. v. LEE.
• Court: Supreme Court of Oklahoma

1913 OK 411

132 P. 1072

37 Okla. 545

ST. LOUIS & S. F. R. CO. v. LEE.

Case Number: 2694

Supreme Court of Oklahoma

Decided: June 11, 1913

Syllabus

¶0 1. CARRIERS--Injury to Person Accompanying Passenger--Liability. One who goes upon a train to render assistance to a passenger, in conformity with a practice approved or acquiesced in by the carrier, has a right to render the needed assistance and leave the train; and the carrier, in permitting him to enter with knowledge of his purpose, is presumed to agree that he may execute it, and is bound to hold the train a reasonable time therefor. If he is injured by reason of the sudden starting of the train or the omission to give the customary signals, the carrier will be liable.

2. SAME--Boarding and Alighting Passengers--Duty of Carrier. As a general rule it is not the duty of a carrier to station an employee at the entrance of a car for the purpose of assisting passengers off and on; the carrier is, however, required to announce the station as the train arrives, to stop the car at the platform, to hold the train a reasonable length of time to enable all persons using reasonable diligence to enter or depart, to furnish a safe and convenient mode of entering or leaving the train, and to give the usual and customary signals before starting the train.

3. SAME. It is not the general duty of a carrier to assist a passenger to alight from a train, unless some special circumstance imposes such duty. But in the case of a sick, old, or infirm passenger, or one making request for assistance, it undoubtedly is the duty of the company to assist them, and in cases where by the use of ordinary care the conductor, or other employee, sees that such help is needed, it becomes the duty of the company to furnish such assistance.

4. NEGLIGENCE--"Actionable Negligence"--Elements. In every case involving actionable negligence there must be a duty on the part of defendant, a failure to perform that duty, and an injury or damage resulting by reason of such failure.

W. F. Evans, R. A. Kleinschmidt, and E. H. Foster, for plaintiff in error.

Stewart & McDonald and Nelson & Steel, for defendant in error.

ROBERTSON, C.

¶1 On July 28, 1908, the plaintiff below, W. T. Lee, accompanied his mother-in-law, Mrs. A. C. Cabbler, an aged and infirm lady, to defendant's depot at Haworth, Okla., for the purpose of assisting her to take the train to Hugo, Okla.; he purchased her ticket and, when the train arrived, assisted her in entering the car and entered thereon himself, carrying two pieces of hand baggage. After having secured a seat for Mrs. Cabbler and deposited her baggage, he started to leave the train, which by that time had started; he claims that as he was in the act of getting off the train some person was attempting to get on and struck his foot and caused him to fall headlong on the platform, whereby he was seriously and permanently injured. The conductor testified positively that he, as was his usual custom, stood by the steps of the car and assisted passengers off and on; that he had no knowledge of plaintiff's intentions to get off the train, but supposed he was a regular passenger. In his original petition plaintiff alleges "that the defendant expressly agreed and promised that it would stop its locomotive engine and cars at said station a sufficient length of time, not only to permit the said Mrs. Cabbler to be assisted aboard the said cars by the plaintiff, but also a sufficient time for plaintiff to leave the cars in safety." There being a failure of proof on this issue, the trial court, over the objection of defendant, permitted plaintiff, after he had rested his case, to amend his petition so as to charge that none of the defendant's employees or agents were present at the time he entered the car, and that therefore he could not notify them, or any of them, of his intention to alight after finding a seat for Mrs. Cabbler, and contends that the train made a shorter stop that day than it ordinarily did, and that it started without notice to him and before he could get off. The testimony on this point is conflicting. The only question in this case is: Did the company, in the absence of knowledge of Mr. Lee's intent to leave the train, owe him the duty of holding the train until he had an opportunity to alight? The question is practically disposed of by the case of Midland Valley R. Co. v. Bailey, 34 Okla. 193, 124 P. 987. In that case plaintiff's daughter was sick and was taken to defendant's train by a physician and one or two others, for the purpose of being carried as a passenger. The physician notified the conductor that he had a sick patient whom he desired to put on the train and asked for time to put her on the car. The physician was intending to remain on the train in order to accompany the patient and said nothing to the conductor about getting off the train; plaintiff also went aboard the train. After the usual business had been transacted the train started, and plaintiff, after the train had gone a short distance, stepped off, fell, and was injured. She sued the company and recovered a judgment. On appeal the case was reversed on the ground that the company owed her no duty in the absence of notice that she intended to alight. In the body of that opinion it is said:

"The principal question in the case is whether or not the conductor of a train who is not informed that a person assisting a sick passenger desires to leave the train after the passenger has been seated, and who does not know that such person desires to leave the train, is bound to ascertain that fact before starting his train. To state the question is practically to answer it. In this case the petition did not allege that the defendant company had any knowledge that it was the purpose of the plaintiff to leave the train. It did not allege that there were any facts or circumstances which charged the defendant with notice that it was her intention to leave the train, and the evidence was in perfect harmony with the petition; there being no evidence of any kind whatsoever tending to show such knowledge on the part of the defendant company, or any circumstances tending to charge the company with notice. A demurrer was filed to the petition, which was overruled. Objection to the introduction of evidence was made and overruled. A demurrer to the plaintiff's evidence was interposed and overruled, and a request for a peremptory instruction was presented and denied, so that the point was saved at every step in the proceeding. There is no controversy but that it is the duty of a railroad company to stop at stations a sufficient length of time to permit reasonably careful persons to leave and enter the train and transact their business with the company. If the railroad company receives sick passengers, it is its duty to stop a sufficient length of time to enable these passengers, in the exercise of reasonable care, to enter the train. If persons not intending to become passengers desire to assist sick persons to enter the train, they have the right to do so; but, if they desire special service on account of their intention to leave the train after seating of their patient, it is only fair that they should notify the railroad company of this desire. The conductor cannot be expected to enter his train and inquire of persons whether they desire to get off; but, when reasonable time has been given and the platform is clear, he has a right to start the train, and, as the plaintiff in this case had not given the conductor or any other employee of the defendant any notice of her intention to leave the train after seating her daughter, it was not the duty of the defendant to hold the train indefinitely or make special inquiry concerning her plans. The doctor did speak about putting his patient on the train, but said nothing about wanting time to get off, and, in fact, did not get off, as it was his purpose to, and he did become a passenger, going with the patient to her destination. It would have been entirely convenient in that same conversation to have cautioned the conductor that the plaintiff desired to leave the train, but he did not do so, and therefore no special duty devolved upon the defendant to do more than

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