Trumbull v. Erickson

• Decision Date: 13 November 1899
• Docket Number: 1,160.
• Citation: 97 F. 891
• Parties: TRUMBULL v. ERICKSON.
• Court: U.S. Court of Appeals — Eighth Circuit

97 F. 891

TRUMBULL v. ERICKSON.

No. 1,160.

United States Court of Appeals, Eighth Circuit.

November 13, 1899

This writ of error was sued out to reverse a judgment recovered by John Erickson, the defendant in error, and plaintiff below against Frank Trumbull, as receiver of the Union Pacific Denver & Gulf Railway Company, the plaintiff in error, and defendant below. The plaintiff was a passenger on one of the defendant's trains from Denver to Ft. Collins. It was at the close of the 'Festival of Mountain and Plain,' and all outgoing trains were very much crowded. The defendant had full knowledge of the large number of passengers his trains would be required to carry, having himself advertised the carnival extensively, and, as an inducement to persons desiring to visit Denver on that occasion to take his road assured them that ample accommodations would be provided for all passengers. The plaintiff obtained a seat in a coach, but when the car became crowded, and the seats were all taken, he surrendered his seat to two old and infirm women. There being no other seat in that car, he stood in the aisle, which was crowded with passengers, who were alternately pushing forward and backward; and the plaintiff was pushed out on the platform, where numerous other passengers were also compelled to stand. While thus standing on the platform, the train, in making a curve, jolted all the passengers with more or less violence; and the plaintiff was thrown or fell off the car, and was seriously injured. The answer denied negligence, and alleged the plaintiff was guilty of contributory negligence. The jury found the issues in favor of the plaintiff.

Elmer E. Whitted, for plaintiff in error.

Henry J. O'Bryan (J. Grattan O'Bryan, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge, after stating the case as above, .

It is alleged that the court erred in refusing to give the jury this instruction:

'You are instructed that if you believe from the evidence that the plaintiff, on leaving Denver, had a seat in one of the coaches, but of his own accord gave it up to some one else, and went upon the platform of the car, either in search of another seat, or for the purpose of riding there, he cannot complain in this action that the defendant did not furnish seats for all of the passengers. The defendant, under these circumstances, must be held to have performed his whole duty to this plaintiff, and is not responsible for any injury which the plaintiff received by reason of having a seat, or by reason of his not having a seat; and you are instructed that the verdict must be for the defendant.'

On that point the court, in its charge in chief, instructed the jury as follows:

'The court cannot say, as a matter of law, that a passenger surrendering his seat to one less able to stand than himself should be held guilty of contributory negligence upon that ground. The mere fact of surrendering his seat (as the testimony in this case, it seems to me, shows) to a couple of ladies who were old and infirm, would not, of itself, constitute negligence and relieve the defendant of liability. As I have explained, the burden of proof is upon the plaintiff to establish the defendant's negligence, and that his injuries resulted therefrom, by a fair preponderance of the evidence.'

The charge the court gave meets our fullest approval. It properly left it to the jury to determine whether, under the peculiar circumstances of the case, it was an act of negligence on the part of the plaintiff to surrender his seat. The defendant, in effect, asked the court to declare, as a matter of law, that, when an able-bodied passenger in a crowded car surrenders his seat to an infirm old person, he is guilty of an act of negligence. It is a matter of everyday occurrence for passengers on crowded street cars to surrender their seats to women, and to men as well, who are old, crippled, and infirm; and this practice obtains under like circumstances on passenger cars on railroads, also. While the law does not make it obligatory upon a passenger to do this, the consensus of opinion in this country does; and one failing to extend this courtesy, under the circumstances that existed in this case, would justly subject himself to public scorn and censure. It is an act of courtesy which is practiced and approved by all men of ordinary social instincts, and only a corporation, which is a creation of man, and therefore has neither soul nor conscience nor social instincts, nor any principles outside of its coffers, would seek to have such a polite and gracious act declared one of culpable negligence. 'It cannot be held, as a matter of law, that a passenger surrounding his seat to one less able to stand than himself, contributes to an injury caused by the carrier's negligence, but which would not have been received had he remained in his seat. ' Lehr v. Railroad Co., 118 N.Y. 556, 23 N.E. 889.

Nor was the plaintiff guilty of contributory negligence in standing upon the platform, under the circumstances. The receiver had ample notice that there would be an extraordinary number of passengers on this occasion. He had invited them by alluring posters which assured them they would receive first-class accommodations, which, of course, included seats. All passengers who had tickets that entitled them to go by that train were entitled to seats. The plaintiff held such a ticket,-- the return coupon of a round-trip ticket. Under these circumstances, it was negligence in the receiver not to furnish reasonable seating accommodations for his passengers; and the plaintiff was not guilty of contributory negligence by standing upon the platform, with others, when the seats and aisle were full. 'The passenger is not guilty of contributory negligence by standing upon the platform while the car is in motion, if there be no vacant seat inside the car. Room inside the cars for the sufficient accommodation of the passengers means a seat for each passenger, not standing room in the passageway. ' Willis v. Railroad Co., 34 N.Y. 670-681.

There was conflicting evidence upon the question whether the plaintiff was intoxicated at the time, and upon that subject the court told the jury:

'If, from the evidence, you should find that the plaintiff was intoxicated at the time of the injury, this, of itself, does not constitute a defense to the plaintiff's right of recovery, unless you should further find that such intoxication was the proximate cause of the injury suffered by the plaintiff. If his intoxicated condition was the proximate cause of the injury, then he could not recover. The fact of plaintiff's intoxication, if you should find that he was intoxicated at the time of the injury, is, in itself, as a matter of law, not such negligence as would bar a recovery. The mere fact of intoxication will not establish want of ordinary care; nor is it, of itself, more conclusive evidence of his negligence, unless you further find that the intoxication of the plaintiff was the cause, and contributed to the injury. And if it was not the immediate cause, or did not contribute to the injury, it is of no importance; and you

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