The Leavenworth Electric Railroad Company v. Cusick

• Decision Date: 10 June 1899
• Docket Number: 11139
• Citation: 60 Kan. 590,57 P. 519
• Parties: THE LEAVENWORTH ELECTRIC RAILROAD COMPANY v. BRIDGET A. CUSICK
• Court: Kansas Supreme Court

57 P. 519

60 Kan. 590

THE LEAVENWORTH ELECTRIC RAILROAD COMPANY v. BRIDGET A. CUSICK

No. 11139

Supreme Court of Kansas

June 10, 1899

Decided January, 1899.

Error from Leavenworth district court; LOUIS A. MYERS, judge.

Judgment affirmed.

John H Atwood, and W. W. Hooper, for plaintiff in error.

Fenlon & Fenlon, and B. F. Enderes, for defendant in error.

OPINION

DOSTER, C. J.:

This was an action brought by Bridget A. Cusick, the defendant in error, against the Leavenworth Electric Railroad Company, the plaintiff in error, to recover damages for injuries negligently inflicted upon her as a passenger on one of the defendant's cars. The case is brought to us upon the evidence, under a claim that such evidence fails to show negligence upon the part of the company and does show negligence upon the part of the defendant in error. The claim of negligence made in the petition was that, while the plaintiff was descending the steps of the car for the purpose of leaving it, the conductor negligently and without notice to her signaled the motor-man of the car to go ahead, which signal was obeyed, the car started, and the plaintiff in consequence thrown from the car steps to the street. The evidence showed that plaintiff and her child were passengers on a south-bound car on Third street in the city of Leavenworth. She told the conductor, one Flora, to let her off at Pine street. As the car approached Pine street it was quite full of passengers. The conductor desired to occupy his time in collecting fares, and in order to enable himself to do so asked one Buckley to stop the car at Pine street and let the plaintiff and her child off. This Mr. Buckley promised to do. Buckley was a conductor on another car belonging to the company, and at the time in question was off duty, riding on Conductor Flora's car. It was the habit among conductors to assist one another in such cases. Conductor Flora testified: "Ques. But as far as the management of the car was concerned, he (Buckley) was a stranger, wasn't he? Ans. Comparatively so. But still, it had been done on numerous occasions. One conductor would help another one out."

Whether the company was aware of these frequent and friendly transferences of duty between its conductors and assented to them was not shown by the testimony. Buckley gave the signal to stop for Pine street, and left the car at that point in advance of the plaintiff and her child, without giving the starting signal. The plaintiff's child descended in safety from the car steps to the street, and the plaintiff herself went as far as the platform steps, when some unauthorized and unknown person gave the starting signal to the motorman. He obeyed it. The car started with the plaintiff on the steps. She grew dizzy, her head swam, she could not hold on to the platform railings, and because thereof, as she testified, fell to the street, sustaining the injuries for which she sued. The car had gone a quarter of a block, perhaps more, from the point of starting when the plaintiff fell. Conductor Flora supposed that Buckley had given the starting signal, and supposed that the plaintiff had safely alighted. Very soon after the car started he went out upon the rear platform, and finding her apparently about to leave the moving car directed her to wait for him to stop it. There is conflict in the testimony as to whether she jumped off or fell off. However, the jury having found in her favor upon this point, we are concluded by the finding.

Two claims of error arising upon the facts thus far stated are made. One is that the plaintiff's fall, according to her own testimony, was not caused by the premature starting of the car, but was caused by the attack of dizziness which overcame her and prevented her from holding on to the platform railings. It is argued that the plaintiff in error cannot be held responsible for the consequences of sudden attacks of vertigo, or other like ailments, which disable people from maintaining their balance on its cars. As a reply to this, it is sufficient to say that it is fairly inferable from plaintiff's testimony, although not stated by her in direct terms, that the cause of her dizziness and inability to hold on to the car was its premature and sudden starting but beyond this, and as a proposition of law, it is undeniably true that if the car was negligently started, the company is liable for such injuries as resulted from its negligence concurring with plaintiff's physical ailments or disabilities. To be subject to vertigo is not a fault. To be seized with an attack of it at a time when the defendant was performing a negligent act toward the plaintiff was not contributory negligence in the plaintiff. Street-railway companies must have a care for the physically diseased and infirm. They must know that some of such unfortunates are perhaps among their passengers, and they are therefore bound like other railroad companies to the observance of the highest possible diligence to protect the lives and insure the safety of such passengers. (The Citizens' St. R. W. Co. v. Carey, 56 Ind. 396.) We do not mean to say that street-railway companies must know of the latent infirmities of their passengers and regulate their own conduct and that of their employees accordingly, but we mean to say that general rules which will insure the safety of the possibly diseased and infirm as well as the healthy, alert and active among their passengers should be observed, because they...