Chicago, Rock Island & Pacific Railway Co. v. Lindahl

Hart, J., (after stating the facts). It is first contended by counsel for the defendant that the plaintiff is precluded from a recovery in this case by the principles announced in the case of Memphis & Little Rock Ry. v. Salinger, 46 Ark. 528; but we do not think so. There Salinger had a seat in the car, and went out on the platform to smoke, and was warned by the conductor that it was dangerous to ride there, but replied that he would go inside as soon as he finished his cigar. The court said: “It is contributory negligence for a passenger to remain on the platform of a car propelled by steam when there is no reasonable excuse for his so doing and after he has been specifically warned of his danger; and if an injury happens to him under such circumstances through the negligence of the company, yet, if it also appears that the injury would not have fallen on him but for his being in that particular position, the company may successfully defend an action for such injuries.” Here the facts are essentially different, and were not such that it would be said as a matter of law that plaintiff had no reasonable excuse for riding on the platform. It is next contended by counsel for defendant that the fact that there are no vacant seats in railroad cars does not justify a passenger in riding on a platform while the train is in motion, and that he is guilty of contributory negligence in standing upon the platform when he can obtain standing room inside, though the train is crowded and ther are no vacant seats. On this question, the authorities are divided, one line holding with the contention of defendant and the other holding that, as the question of contributory negilgence of plaintiff depends upon circumstances, it should be left for the determination of the jury. Many authorities on both sides have been cited by counsel in their respective briefs, and they may also be found in the case note of Norvell v. Kanawha & Mich. Ry. Co. (W. Va.) 29 L. R. A. (N. S.) 325, and Rolette v. G. N. Ry. Co., 91 Minn. 16 (1 Am. & Eng. Ann. Cases 313). The railway company had notice in advance that an unusual number of people would ride on its cars to and from Hot Springs during the State fair, and it was its duty to have used reasonable efforts to prepare for them. It does not appear that the crowd was so unexpected and unusual that provision reasonably could not have been made to afford seats to passengers and to prevent overcrowding the car. The passengers who had tickets to entitle them to go by that train were entitled to seats. Plaintiff held such a ticket — the return coupon of a round trip ticket. These facts are undisputed. In addition to this, it appears from the testimony of the plaintiff that he walked into one car, and could not find a seat there; he then walked out on the platform of the car, and looked through the door of the other car, and saw he could not obtain a seat there. He then remained on the platform, and was jostled to one side by the crowd going from one car to the other. • He said that when he got back on the car after alighting at the water tank the plaftorm was so crowded that he could not have re-entered the car without jostling and shoving the other passengers around. It is true that his testimony in this respect is contradicted by the evidence adduced on behalf of the defendant; but, when the surrounding facts and circumstances are considered, we are of the opinion that the negligence of the defendant and the contributory negligence of the plaintiff were questions for the. jury. The instructions on this question were somewhat loosely drawn, but instructions are always given with reference to the particular facts of the case; and, when so considered, we think the instructions fairly submitted to the jury the contributory negligence to the plaintiff and also the negligence of the defendant, and that the judgment should not be reversed because the language used in the instructions was not aptly chosen and might in some respects be open to criticism. 6 Cyc. 654; Trumbull v. Erickson, 38 C. C. A. 536; Werle v. Long Island Rd. Co., 98 N. Y. 650; Bonner v. Glenn, 79 Tex. 531; Hutchinson on Carriers, (3 ed.), § 1198; Graham v. McNeill, 20 Wash. 466, 72 Am. St. Rep. 121. It is next urged by counsel for defendant that the court erred in permitting counsel for the plaintiff .to argue to the jury that in determining the question of plaintiff’s contributory negligence they might take into consideration the boy’s age. There was no error in this. Even if it be conceded that it was not proper to instruct the jury that it might take into consideration the plaintiff’s age and inexperience in determining the question of his contributory negligence in the' absence of proof that he was less able than an ordinary person to look out for his safety, still, in determining the question of contributory negligence, the jury had a right to consider the age of the plaintiff in connection with all the other surrounding facts and circumstances, and it was not error for plaintiff’s counsel to argue that fact to them, for it was the duty of the jury to consider all fates and circumstances adduced in evidence. Judgment will be affirmed.