Strand v. Chicago & W.M. Ry. Co.
| Decision Date | 13 January 1887 |
| Citation | 64 Mich. 216,31 N.W. 184 |
| Parties | STRAND v. CHICAGO & W.M. RY. CO. |
| Court | Michigan Supreme Court |
Error to Kent.
Birney Hoyt, for appellant.
Smith Nims, Hoyt & Erwin, for defendant.
Plaintiff fell when leaving one of defendant's trains, and had his foot crushed. He sued for damages, and the court refused to allow him to recover, because he was held to have been contributing by negligence to the injury. The case comes up on error, and he claims he had a right to have the jury pass on the facts. In such a case the plaintiff has a right to have his own side of the controversy assumed to be true, and it cannot be affected by counter-proofs. There was in this case some conflict on material facts, and on the argument, through inadvertence, allusion was made more or less to defendant's proofs. Taking plaintiff's case as he and his witnesses present it, he and several other persons were in the smoking car of a regular passenger train having tickets for Diamond Lake, in Newaygo county. Just before reaching that place, it was called. Plaintiff sat within four or five feet of the door, and, as soon as the train stopped, he rose, and moved out, preceded by one person, and followed by two others. On reaching the car-door he went out, and down the steps on the platform side, and when he stepped off he fell. He testified that his coat was caught or held by something or somebody, and that threw him down. The other persons who followed him got off after he did, on the other side, safely. The person who preceded him also got off safely on the same side, and is not certain whether the car had then started. All testify that they got out and off as fast as they could. When plaintiff got off the cars were moving, and there is a very great conflict of testimony how fast they moved. The conductor was behind plaintiff, on the same steps, and got off with or after him. One of defendant's witnesses said they came off together and it seemed to him as if the conductor was holding him on.
In considering the particular question before us, it must be assumed that all those parties moved immediately on the stopping of the car, and got out as fast as they could, and that the cars moved on before they could get off. There is more or less testimony about minutes, and similar divisions of time; but they were not timed by any watch, and must be taken in the popular sense, which does not indicate any particular number of seconds. And the question is simply whether a person near a car-door, who is warned to get off, and endeavors to do so as soon as he can, and steps off the cars, which have started in that brief interval, is necessarily negligent. Their speed was in some controversy. In order to make him so, he must, as in all other cases decide upon facts, as they appear, as a man of ordinary care would do under the same...
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