Vimont v. Chi. & N. W. Ry. Co.

• Decision Date: 04 March 1887
• Citation: 32 N.W. 100,71 Iowa 58
• Court: Iowa Supreme Court
• Parties: VIMONT v. CHICAGO & N. W. RY. CO.

71 Iowa 58

32 N.W. 100

VIMONT

v.CHICAGO & N. W. RY. CO.¹

Supreme Court of Iowa.

March 4, 1887.

Appeal from circuit court, Polk county.

The plaintiff, as assignee of one Oscar Johnson, brings this action to recover for a personal injury to Johnson. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.Hubbard, Clark & Dawley, for appellant.

Nourse, Kauffman & Guernsey, for appellee.

ADAMS, C. J.

Johnson took passage on the defendant's train at Marshalltown, having purchased a ticket either for Moingona, or Ogden, the next station west of Moingona. Soon after the train left Moingona, and while it was in motion, he got off, and, in doing so, he fell into a culvert several feet deep, and received an injury. The accident occurred between 3 and 4 o'clock in the morning of a very dark night. The culvert was 513 feet west of the Moingona station. The train, according to the strong preponderance of the evidence, had acquired a very considerable speed, probably at the rate of about 12 miles an hour. Johnson intended, when he left Marshalltown, to get off at Ogden, and did not conclude to get off at Moingona until after the train had left that station. The plaintiff averred that the conductor required Johnson to leave the train, and that he jumped off when and where he did in obedience to the conductor's requirement. The defendant denied that the conductor made such requirement.

The court instructed the jury in these words: “Whether Johnson had a right to travel on the train to Ogden or not, if the conductor required him to leave it at a time and place, and under circumstances that rendered it dangerous to do so, then it was negligence in the conductor to so require. You will first determine whether the conductor did require Johnson to leave the train at the time and place he did leave it. To constitute such requirement, it must appear that the conductor intended to be, and was, understood by Johnson as requiring that he should leave the train.” The defendant assigns the giving of this instruction as error. The objection made is that there was no evidence that the conductor required Johnson to leave the train at the time he did. It is undisputed that, after Johnson started from his seat to leave the train, something was said to him by the conductor. As to what precisely was said the witnesses differed somewhat. According to the testimony of a passenger, who appears to be entirely disinterested, the conductor said: “Don't try to get off, the train is going too fast.” The conductor's testimony, though differing a little in the words used, was to the same effect. According to the testimony of Johnson, what the conductor said was, “Jump off quick, if you are going to.” Now, while there is some difference, it is manifest, so far as the testimony alone is concerned, that the conductor might have said both what the passenger and what Johnson testified that he did. He might have advised him not to get off, but, if he was going to do it, to be quick about it. Such advice would not have been unreasonable, as the train was leaving the station and was probably gaining in speed. But Johnson testified in rebuttal of the testimony of the conductor and of the passenger, and denies that he was advised by the conductor not to get off. Now, while there is no question about the preponderance of evidence, so far as it appears from the record, it is not for us to pass on such question; and we must assume, for the purposes of the opinion, that the conductor said what Johnson testified that he did, and that he did not advise him not to get off. We have then the question as to whether the words, “jump off quick, if you are going to,” constituted a requirement to leave the train. It appears to us they did not. It was still nothing but advice, and good advice at that. Doubtless, the conductor might have given him better advice, and that is not to attempt to get off; but Johnson was a young man about 20 years of age, in the full possession of his powers, and the defendant is not...