Carroll v. Burleigh

The opinion of the court was delivered by Scott, J. Plaintiff brought this action to recover for injuries sustained by being thrown from the defendant’s train, and, obtaining a judgment, the defendant has appealed. The train in question was a freight train, but it also carried passengers. On arriving at plaintiff’s desti [209] nation the train came to a stop a few feet distant from the depot platform and plainitiff arose to alight, and as she got upon the rear platform the train suddenly started and threw her to the ground, whereby she was injured. Appellant contends that the plaintiff should not have been allowed to recover because she was guilty of contributory negligence in getting up to leave the car before it had pulled up to the platform, or before notice to get off had been given.' But there was testimony to show that the train stopped at this time where it usually stopped, and that it was customary for the passengers to get of at that place, or when the first stop was made, and that the plaintiff had ridden upon such train several times before. Under such circumstances we could not hold as a matter of law that the plaintiff was guilty of contributory negligence in attempting to leave the car as she did. At most it could have been but a question of fact for the jury, and it was properly submitted to them under the instructions of the court. Several of the instructions are also complained of by the appellant. As to the first one, it is contended that the court in instructing the jury as to the right of the plaintiff to recover in case the defendant was negligent, left out of consideration the question of contributory negligence of the plaintiff. But, conceding this to be true, the court expressly instructed the jury later on, that notwithstanding the negligence of defendant, if the plaintiff’s negligence contributed to the injury, she was not entitled to recover, and consequently there was no error. We think there is no error in any of the instructions, that the cause was fairly submitted to the jury, and [210] that the proof was sufficient to sustain the verdict obtained by the plaintiff. . There being no other matter complained of calling for special attention, the judgment is affirmed. Anders, Gordon and Dunbar, JJ., concur.