Imhoff v. Chicago & Milwaukee Railroad

PaiNe, J. The nonsuit in this case should not have been granted. There was clearly evidence to go to the jury upon the question of the defendant’s negligence — evidence tending to show that the train was backed, at the time the plaintiff was attempting to get off, without any notice either by the bell or whistle. The evidence of the plaintiff and her sister tended to show that she was in the act of getting off at the time' the train was backed. The evidence of the plaintiff’s sister, and of the policeman Paulus, which is very material on this point, as well as other testimony, tended to show that the train was backed without the bell being rung or whistle sounded. The only point upon which there seems [684] room for doubt is, whether, assuming that the train was thus backed without notice, there was evidence enough to submit to the jury the question whether this caused the injury. Upon this the testimony is not direct, nor entirely clear. Yet there is circumstantial evidence enough to require that the jury should pass upon it. On a motion for a nonsuit, the court is bound to give the evidence the most favorable construction for the plaintiff which it will possibly bear. Colgrove v. R. R. Companies, 20 N. Y., 494; Ernst v. Hudson River R. R. Co., 35 N. Y., 25; Ellis & Martin v. Ohio Life Ins. & Trust Co., 4 Ohio St., 645-47. In the latter case, on page 646, Judge RaNNEY says: “ All that the evidence in any degree tends to prove must be received as fully proved; every fact that the evidence, and all reasonable inferences from it, conduce to establish, must be taken as fully established.” So in Langhoff, Adm’r, v. Mil. & Pr. du Ch. R. R. Co., 19 Wis., 497, the court says: “It is only where there is an entire absence of evidence tending to establish the case,” that a nonsuit may properly be ordered. See also Dodge v. McDonnell, 14 Wis., 554. Applying this rule to the evidence in this case, it was to be assumed, on the motion for a nonsuit, that the plaintiff was in the act of getting off the cars, and had got on to the platform or steps, at the time the train started to back; and also that it started without any notice.' It further appeared, that immediately afterwards she was under the cars, and badly injured. We think these circumstances are sufficient to require the question to be submitted to the jury, whether the injury was not occasioned by the sudden stai’ting without notice. It appeared that the plaintiff had some articles in her hands, and that at the time of starting she was in a position where a sudden starting, without notice would be likely to throw her off. She was found injured immediately afterwards. Certainly it cannot be said, as a matter of law, that the jury [685] could not properly find from tins evidence that the starting without notice caused the injury. It was a question for them, and not for the court, to determine. When the case was formerly here, there was no express allegation in the complaint that the cars were started without notice. It alleged generally that they were wrongfully and carelessly started, without having waited a reasonable time. The plaintiff’s cause of action was held by the court below, upon the first trial, to depend, as the pleadings then stood, on the continuance of the relation of carrier and passenger between the parties. Much of the evidence bearing upon the question whether the defendant waited a reasonable time before backing the train, and whether the plaintiff had a reasonable time to get off, relates to this aspect of the case. But the complaint was afterwards amended so as to allege that the cars were started “ without due notice.” And under this general allegation, evidence was introduced on the last trial, tending to show that there was no notice by the bell or whistle. If, as the case now stands, the cause of action depends on the continuance of the relation of carrier and passenger at the time of the injury, it would still have been a question for the jury, whether the plaintiff had a reasonable time to get off the cars. In determining it, they should have considered all the circumstances of the case, the character and condition of the plaintiff and the family with her, the fact that the train arrived in the night, that it was the terminus of the road, etc. But as the pleadings now stand, it is doubtful whether the cause of action depends on the continuance of that relation. Eor, even though she remained on the ears long enough to terminate that relation, this would not relieve the company from liability for an injury occasioned afterwards by its negligence, and without fault on her part. And the mere fact of so remaining would not necessarily constitute such fault or [686] negligence on ber part as would preclude a recovery. Tbe extraordinary liability of tbe carrier might bave terminated, but it was still bound to use due care to avoid injuring persons lawfully on or around tbe cars. And certainly it could not be said that tbe plaintiff was not lawfully on tbe cars, although she might bave remained a little beyond tbe time to which tbe extraordinary liability of tbe carrier extended. Tbe counsel for tbe respondent contends that tbe amendment of tbe complaint should not be held to bave changed tbe case, because be says that amendment ought not to bave been allowed. But that is a question which this bill of exceptions does not present. Tbe case was tried upon that amended complaint, and we can only determine those questions presented by tbe bill of exceptions. And that presents no question as to whether tbe complaint ought to bave been amended. But, although tbe question is not presented, we may say that' it is our impression that tbe amendment was within tbe discretion of tbe court below to allow, and that it would not come within the ruling in Sweet v. Mitchell, 15 Wis., 641. Tbe cause of action is still for an injury to tbe plaintiff by tbe negligent starting of tbe cars of tbe defendant, and tbe amendment only seems to introduce a new act of negligence contributing to tbe injury. Tbe counsel for tbe respondent relied very strongly on tbe testimony of Search, whose deposition was taken in behalf of the defendant, and was introduced by tbe plaintiff on tbe last trial. Undoubtedly, if full credit is given to bis statements, they go to disprove any negligence by tbe defendant. Perhaps, if tbe case bad been submitted to tbe jury, they might bave credited him in preference to tbe other testimony tending to show negligence. But they might also bave believed tbe other testimony, and discredited Mm. They are at liberty to find according to' their actual belief [687] upon tbe weight of evidence. But on a motion for a non-suit tbe court bas no sucb liberty; but in case of a conflict in tbe plaintiff’s own evidence, tbe court is to credit that part wbicb tends to sustain bis action. Doubtful questions are to be resolved in bis favor. And tbe court then determines, as matter of law, whether there is enough to sustain bis case. Tbe fact that some portions of Search’s evidence went positively to disprove negligence, can make no difference in tbe application of this rule. By the Court. — The judgment is reversed, with costs, and . tbe cause remanded for a new trial.