Union Pac. Ry. Co. v. Porter

• Decision Date: 08 November 1893
• Citation: 56 N.W. 808,38 Neb. 226
• Parties: UNION PAC. RY. CO. v. PORTER.
• Court: Nebraska Supreme Court

38 Neb. 226

56 N.W. 808

UNION PAC. RY. CO.

v.PORTER.

Supreme Court of Nebraska.

Nov. 8, 1893.

Syllabus by the Court.

1. Negligence, as ground of recovery or defense, is a question of fact to be submitted to the jury upon the evidence, as is any other question of fact.

2. Under the provisions of section 3, art. 1, c. 72, Comp. St., it is only necessary to a right of recovery against a railroad company to show that the person injured was at the time being transported as a passenger over the defendant's line of railroad, and that the injury resulted from the management or operation of said railroad. A presumption thereupon arises that such management or operation was negligent, and it can be met only by showing that the injury arose from the criminal negligence of the party injured, or that the injury complained of was the result of the violation of some express rule or regulation of said railroad company, actually brought to the notice of the party injured.

Commissioners' decision. Error to district court, Buffalo county; Hamer, Judge.

Action for personal injuries by J. J. Porter against the Union Pacific Railway Company. Plaintiff had judgment, and defendant brings error. Affirmed.J. M. Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error.

Thompson & Oldham, for defendant in error.

RYAN, C.

The amended petition in this case alleged the corporate existence of the Union Pacific Railway Company, and that it was operating a line of railroad through Kearney, Neb., at the time of the injuries complained of. That on April 29, 1890, plaintiff in said petition purchased a ticket entitling him as a passenger to be transported upon one of the trains of said railroad company from Grand Island, Neb., to the aforesaid station of Kearney on said railway company's line of railroad. That when the train upon which plaintiff had ridden from Grand Island reached Kearney, it was stopped before the car on which plaintiff was located, or any part of the train, had reached the station house or platform of said railway company. That thereupon plaintiff passed out of said car to the platform thereof to alight, thinking he was at the station and platform of the defendant, but, finding that said train and coach on which plaintiff stood had not yet arrived at said station and platform, but that said coach was over 300 feet from said platform of the station, and the engine of the defendant was taking water, as plaintiff believed, and there being no platform or place to alight from said car opposite the same, and it being in the nighttime and dark, and there being a windmill, engine house, mail catcher, and water tank between where plaintiff then was and the east end of the platform, and plaintiff not being notified by defendant's servants to alight there, plaintiff, standing on the lower step of the car, waited for defendant to pull its train up to said platform and station house, so that he might with safety alight from said coach. That said train moved up to the platform, but did not stop thereat, and when the coach on which plaintiff stood was opposite said platform, and while said train was moving slowly by said platform, plaintiff, believing it was safe to alight therefrom, and being suddenly convinced that defendant was not going to stop its train at said platform, stepped from the lower step of said car upon said platform, and in doing so plaintiff fell on said platform, and in so doing two bones of his leg were broken as a result of said accident. Plaintiff by further averments negatives the existence of any negligence on his own part causing or conducing to the accident and injury aforesaid, and having alleged pain and suffering and disability to practice his vocation as a physician for a long time, and that permanent disability had been caused him by the aforesaid accident and injury, the plaintiff prayed judgment for $1,999.99 and costs. The answer admitted the corporate existence of the defendant, and that at the time of the alleged injury it was operating a railroad, and seriatim denied each averment in the plaintiff's petition contained, and alleged that whatever injury plaintiff had suffered was due wholly to his own negligence. There was a reply in denial of all allegations of the answer inconsistent with the averments of the petition. Upon a trial a verdict was returned in favor of the plaintiff for the sum of $1,314.49, and, a motion for a new trial having been overruled, judgment was duly rendered for the amount of said verdict.

There was but little evidence as to the manner of the accident, except such as was given by the plaintiff himself. Such evidence as there was, however, is found fully epitomized in the petition above described, and therefore requires no repetition. There was evidence, however, that the railroad train which carried plaintiff from Grand Island to Kearney made no stop at the water tank at the latter place, but that the stop which plaintiff believed was at the water tank was in fact made so as to allow the baggage to be unloaded from the baggage car in said train, directly opposite the baggage room of Kearney station. There was undisputed evidence also that the train extended from the baggage coach aforesaid to quite a distance east of the east end of the platform at the Kearney depot, and that the car step upon which plaintiff was standing during the halt of the train was some distance east of the platform and incline at said station. There was a cinder walk along the track opposite to where plaintiff stood...