Ohio & Mississippi Railroad v. Schiebe

Mr. Justice Walker delivered the opinion of the Court: This was an action on the case brought by appellee, in the St. Clair Circuit Court, against appellants, for negligence in operating their trains, whereby he was injured. It appears that appellee became a passenger at Illinoistown for Lebanon, on a passenger train of appellants. That, on arriving at Lebanon, a freight train, being too long for the side-track, had stopped on the main track, and the passenger train, having slackened up, moved upon the side-track to permit the freight train to pass. As the passenger train started, appellee attempted to get off, and in doing so, fell, and one of his arms was crushed, and was afterward amputated. He insists that the injury was produced by the carelessness of the employees of the company, while they contend that it árose from his own want of care and prudence. Appellee swears, that, after the train had stopped and was starting again, some one said the train was going to Summer-field, which was the next station. That he thereupon took his baggage and went out upon the platform, and just at that time “ the locomotive gave a push backward, and I fell down by the wheels, and the locomotive then went backward and the wheel went over my right arm,” and the doctor amputated it. “ The locomotive came back with great force.” “ I think a man and his wife got out before me safely; it was forty or fifty yards from the station where I was hurt; I cannot tell whether Lebanon was announced or not; I did not hear it; I did not see any thing of the conductor, or any brakeman when I went to the door of the car, and no one told me not to get out.” He says the night was very dark, and in this he is supported by other testimony. Two witnesses, besides the conductor, testified that the conductor told him not to get off there; that it was not the station. They say they heard the warning. They were just behind him and had started to pass from the car. They say this occurred at the door of the car, and as the conductor met appellee on the platform in coming from the next car. Another passenger in the same car testifies, that, as the crowd started to go out, he heard some one at the door say, “ We have not got to the station yet;” that it was about the time appellee was hurt. He says he does not know who it was that gave the warning; that he was about the middle of the car. The conductor testified, that, as he came out of one car to the platform, appellee was coming out of the opposite car with some bundles in his hands; that witness said to him, “ Do not get off here; we are not at the station;” but appellee walked along and stepped down on the steps of the car, and that he (witness) took hold of his shoulder and said, “ Don’t get off herebut appellee was too heavy for him to hold, in the position which witness then occupied, and he fell. There seems to be no other witness than appellee who testified that there was a violent jerking by the train at the time the accident occurred. Some of the witnesses gave it as their opinion that appellee was under the influence of -liquor at the time; but this he denied, and said he had only drunk one glass of beer that day, and that was in the morning. If the testimony given by appellee was alone considered, the jury might have been warranted in the conclusion at which they arrived; but his testimony is overcome by the testimony of at least four witnesses as to the warning given, “ That they had not reached the stationand three of them state positively that he was directed by the conductor, not to pass from the ears at that place. These witnesses, so far as we can see from this record, stand unimpeached, and are entitled to credit. This evidence may, no doubt, be reconciled. Appellee may have been so fully possessed with the idea of getting from the cars, and thus avoid being taken to the next station, that he failed to give ordinary attention to what was said and done at the time. If his mind was greatly preoccupied with such an apprehension, and he was not giving his attention to what others were doing, he might and probably would not hear the warning or directions given by the conductor. The others, however, seem to have been giving proper attention, and state positively that the warning was given, and that they heard it distinctly. Appellee states that the conductor did not take hold of him, while the latter states that he did, and is fully supported in the statement of Ellen Macicen. We are wholly unable to comprehend how so many witnesses could be mistaken as to what they saw and heard. On the other hand, appellee may have been, and no doubt was, badly stunned by the fall, and would be less likely to recall the circumstances, than others not subjected to such a peril. It is more than probable that the conductor took hold of him while he was in the act of falling, and if so, it was natural for appellee to have been entirely occupied with his situation, and the apprehension of its results; under such circumstances it would be remarkable if his attention was attracted to the fact that the conductor had hold of him, or, if noticed at the instant, that he could recall it to memory. The evidence, we think, preponderates largely in favor of the occurrence as detailed by appellants’ witnesses. This case proceeds upon the ground of negligence on the part of appellants. But, when we consider the circumstances, we are unable to see that they have been derelict in any duty. Appellee says he did not hear the name of the station announced, and it was, we presume, not done, as the train had not reached the station. He either failed for want of attention to hear the emphatic warning of the conductor, or he failed to regard it. Nor was there any negligence shown in running the train on the side track, to permit the freight train to pass on the main track. The evidence shows that such a course was not unusual, and in this instance it was necessary. And the weight of evidence is, that there was no violent jerking of the train; but if there had been, it was not negligence, as the train had not reached the platform where passengers were expected to get off. Appellee was attempting to pass from the train while in motion, and at an unusual place. If there was negligence it was on the part of appellee. The judgment of the court below is reversed and the cause remanded. Judgment reversed.