Leggett v. Western N. Y. etc. R.

— 48 — Opinion, Mr. Justice Clark: This action is brought by Neva E. Leggett against the Western New York & Pennsylvania Railroad Company, to recover damages for personal injuries received through the alleged negligence of the company’s employees. On the 14th December, 1889, the plaintiff, who was a young lady of twenty-two years, was a passenger on the defendant company’s road. She took the train at Cory don, and arrived at Sugar Run, the place of her destination, about six o’clock in the evening. Putting her story in narrative form, she relates the occurrence substantially as follows: “ I sat in the rear car about midway. As we approached Sugar Run, the brakeman opened the door and called the station. He closed the door and walked out. The train came to a stop. I had with me a money satchel, a valise, and an umbrella. I gathered them together as quickly as possible, and started out. I didn’t stop anywhere or speak to any person between that and getting off: there was no one on the car I knew. I opened the door and walked out, and was on the steps, when I became aware that the train was moving. I saw that we were passing the lights in the depot: that was what- made me aware that it was moving. There was no brakeman or conductor to be seen, and there was no light, because we had passed the depot. It was very dark, dark as night could be: there was not even a star. In my right hand I had my umbrella and satchel; in my left, the valise. I have no recollection of making any effort to get off. The next thing I remember, I was lying on the ground, and heard the voices of two or three men who had just approached. The depot agent came then with his light. I could not tell whereabouts on the steps I was; I cannot remember. I had not hold of anything. I did not have hold of the guards. It was only an instant, and I still had hold of my baggage. I did not lose consciousness. I fell forward with the right arm extended, and it was dislocated at the shoulder. I did not fall toward the engine. I fell just straight forward from the steps. Mr. Lawson, the station agent, picked me up; there were two others; I didn’t know them.” On cross-examination, she testified, among other things, as follows: “I took the train about 5.40 p. M. It is six miles from Corydon to Sugar Run. When we arrived there it was not quite six o’clock. I under — 49 — stood the depot agent to say that night we were about two minutes late. The brakeman’s name I have since learned was Harry Farrand. There were two passenger-ears on the train. The satchel was about five inches square, a lady’s shopping bag. The valise was of good size, and was quite heavy. When they called the station, I got my baggage ready, and waited till they stopped. When I came on the platform, I did not notice the train was moving. When I stepped on to one of the steps, can’t say which, I noticed the train was moving. Can’t say how far it had moved; it was not moving more rapidly than usual, when it moves out of the station. Do not know how long they stopped. I realized they had stopped, and then that I was on the step. I just remember standing there for an instant, and I remember no more. I didn’t think anything about stepping off the train whilst it was moving: hadn’t time to, I was off so soon after I realized they were moving.” There is some evidence that after she had started to the door she seemed to have forgotten something at her seat, and that she returned for it before going out upon the platform. Of this circumstance, if it occurred, she makes no mention. The negligent act of the company complained of is that the train did not stop long enough at the station to give the plaintiff a reasonable opportunity to get off the cars in safety, and that in consequence of this she received the injuries. It was the undoubted duty of the company, not only to carry the plaintiff safely, but to set her down safely at the place of her destination, if, in the exercise of the utmost care, it could be done. The company was, of course, not answerable for the rashness or folly of the plaintiff; she was bound to exercise ordinary attention for her own safety, even though the company’s agents in charge of the train were also remiss in their duty. Richards, the conductor, testifies that the train made the “usual stop,” and that when the brakeman, as was customary, hallooed “ All right here,” he gave the signal to start. Crahan, the engineer, says they made the “ ordinary stop,” and he started as soon as he got the signal from the conductor. Tyler, the baggage-master, says he remembers nothing more than that it was the “ usual stop; ” and Davis, the fireman, that the train stopped the “ usual time,” and until they got a — 50 — signal to go. Harry Farrand, the brakeman, who hallooed “ All -right here,” as a signal to start, was not called as a witness. All that the testimony discloses concerning his movements and Whereabouts, during the occurrence, is that as soon as the train stopped, or before, he ran forward to the engine. He did not assist the passengers to get off the train, as it was his duty to do under the regulations of the company, nor was there any person with a light at the place of landing. If he had remained at his place of duty, he would have known that the passengers were not yet off, when he gave the signal to the conductor. As it was, although the accident occurred at the exact place where he should'have been, neither he nor any other of the trainmen appear to have been aware of its occurrence until they arrived at Kinzua, where the conductor received a telegram announcing the fact. John Wooster testifies that just as the train stopped he started out of the station, and 'when he had taken four or five steps it started; that he saw the two lady passengers who were in advance of Miss Leggett, the Misses Morrison, get off after it started, and that it “ staggered one of them, and she ran quite a ways.” Fannie Morrison says the train was in motion just as she got off; when asked how long the train stopped, she replied, “ I should say five seconds.” She further says that neither the conductor nor the brakeman was present to assist them, nor was there any light. Her sister Maud, who alighted from the train after Fannie and was called as a witness for the company, says the train made something of a halt, but she did not recollect of it stopping entirely: it was moving when she got off. Miss Leggett was behind both these ladies, and the testimony would seem to show that the train had moved some sixty feet before she went off. Mr. Sheldon testified that the train made a very short stop, and started about the time the first two ladies got to the door. He says he looked out of the window “ to see where some of them landed.” In view of this evidence, the court was obliged to, and did very properly, submit the question to the jury; as follows: “ Now, did the defendant company discharge this duty to the plaintiff? It is alleged by the plaintiff that when the cars arrived at Sugar Run station, which was the point of her destination, the ' train was not stopped a sufficient time to enable — 51 — her to get off in safety, and that in consequence thereof she sustained serious injuries. This is the first question that presents itself for your consideration; for, if the defendant was not guilty of negligence, if the train stopped a sufficient time to enable the plaintiff to get off in safety, by using that degree of care required of every prudent person, then there can be no recovery in this case.” The reference to the facts which followed was full and fair: we find nothing to complain of. The charge upon this branch of the case was impartial, and not one sided, as the appellants contend. The trainmen testified to nothing of value to the defendant bearing upon this question, excepting that they made the usual stop, and their testimony to that effect was called to the attention of the jury. Under this instruction of the court, the verdict of the jury convicts the company of negligence, and it is difficult to see how any jury could have determined otherwise. The negligence of the company being thus established, the question arose, was the plaintiff guilty of contributory negligence ? Upon this branch of the case the burden of proof was upon the company. The company’s contention in the court below was that the plaintiff had voluntarily stepped or jumped from the train whilst it was in motion, and there is some testimony to this effect. Mr. Morrison testifies that, after the train was in motion, he saw her “walk down the steps off and get off,”—“saw her walk off, step to the ground.” But, as the night was dark, and he was some fifteen feet distant, the jury may well have believed it impossible for him to know whether she actually stepped off, or fell off, as she states. Mr. T. H. Jones says the plaintiff told Wilmarth, the company’s detective, three or four days after the injury, in his presence, that she threw the packages and jumped off the train. Mrs. T. F. Jones, however, who was present at the same conversation, says that the plaintiff said she “ threw the packages ” and “ that was all she remembered,” and that she said she thought if she hadn’t so many packages she might have got off safely. This testimony was, of course, proper for the jury. It was not specifically or particularly referred to in the charge; there was much testimony on both sides to which no reference was made. But the general subject to which it referred was fully discussed. Whether or not she stepped down, or jumped from — 52 — the moving train, was a question of fact very fairly submitted to the jury, to be determined upon all the evidence, with specific and plain instructions that if she did so, unless in a sudden emergency, with danger threatening in either event, she was guilty of contributory negligence, and could not recover. This qualification of the general rule, so well settled in our cases, is only applicable to the case at bar if the jury should find that she left the step of the car voluntarily. The points submitted by the defendant’s counsel proceed wholly upon the hypothesis that the plaintiff left the steps of the car either by deliberately stepping or jumping off, and undertakes to define the precise and only circumstances which would justify such an act. The court simply supplemented the points by adding another state of facts, which would justify the act. But the other circumstances thus suggested, like those suggested in the point, were only applicable to the case under the defendant’s theory upon the facts, and was pertinent in that aspect of the case only. If the plaintiff was believed, the instant she found herself in an emergency she went off the train. She says that when she came upon the steps of the car she for the first time knew that the train was moving, and at that instant, although she was conscious of no effort on her part to leave the car, she went off the train, falling on her shoulder. She does not pretend that she acted upon her best judgment, in an emergency, with danger threatening, whether she remained upon or left the car. She says she had no time for deliberation, and she did not pretend to have deliberated. The defendant cannot complain of instructions, even in the general charge, which were thus invited in the points, and without which the answers would have been imperfect. Besides, we think the effect was to give the defendant another chance with the jury, more than it would otherwise have had. Upon an examination of the whole case, we are of opinion that it was fairly tried. The company failed to satisfy the jury that the plaintiff, by her own negligence, had contributed to the injury, and, as the company’s negligence was clearly established and found, The judgment is affirmed.