McDonald v. Chicago & N. W. R. R.

Dillon,- Ch. J. 1.Amendment: increase of damages. — Appellant’s various grounds for a reversal of the judgment, we notice in the order in which ^ey are presented by counsel. 1.There was no error in allowing the plaintiffs to amend the petition so as to increase the amount claimed as damages. 2. Railroad: duty to provide station accommodations. 2.There was no error in the action of the court in allowing witnesses to testify as to the condition of the passenger room with respect to tobacco smoke. ' , _ x I he evidence was proper as part of the trans- . n ... . . . action out of which the injury arose, and as showing why the plaintiffs did not remain in the passenger room, or return to it. The effect of this circumstance, upon the rights of the parties was not stated to the jury. It would not justify the plaintiffs in violating a known rule of the company if there was one, as to the particular place where passengers were required to enter their cars. . But I have no hesitation in saying, that, without any statute enacting it, there is a common law duty on these [139] companies to provide reasonable accommodations at stations for the passengers who are invited and expected to travel on their roads. See Caterham R. R. Co. v. London R. R. Co., 87 Eng. C. L. 410. If the station room is full, or if it is intolerably offensive, by reason of tobacco smoke, so that a- passenger has good reason for not remain1 ing there, while this will not justify him in violating reasonable rules and regulations of the company, which are known to him, respecting the place, mode and time of entering the cars, it will justify his endeavor to enter the cars at as early a period as possible, especially if it is dark and cold without, if in so doing he uses proper care and violates no rule or regulation of the company of which he has actual knowledge, or which, as a reasonable man, he would be bound to presume existed. He would not, of course, be justified, by the condition of the passenger room, in rashly endeavoring to board a train in- motion, or the like; but if the train had arrived, was on the track, the car doors open, and if, as is frequently if not generally the case, passengers are allowed, or at least not forbidden, to enter the ears before they are drawn ujo in front of the station, we think a passenger may reasonably and properly make the attempt to reach and enter the cars, if he is not aware of any rule or regulation to the contrary; and if he receives an injury in so doing (he using proper care) from the unsafe and dangerous condition of the platform or the steps in a place where passengers would naturally go, the company are liable therefor. This subject, and some of the leading and recent decisions bearing upon it, will be alluded to in considering the instructions of the court to the jury. 4. Evidence: Carlisle table. 3. There was evidence tending to show, that the injuries to the wife were permanent in their nature, and Ekely to disable her during her life from ren<qering effectual service to her husband and [140] family in the discharge of her household duties; and that, in consequence'a woman'had been and was and probably would* have to be employed to do the work she had been accustomed to perform. Under these circumstances, there was no error in the admission of the Carlisle tables- to show the expectancy of the life of the wife. It was shown, that, at the plaintiff’s age, the expectancy of life was about fifteen years. If the jury believed the injury was permanent, and that it would disable the plaintiff for life from doing labor, the length of time that she would probably live affords some data proper for the jury to consider in determining the amount of pecuniary damage occasioned by the injury. 5. parties : husband and wife. At common law where the action was for a tortious injury to a married woman, the husband suing alone might recover for the expenses of a cure, for , ° , , . . r. loss of service, and of the society of his wife. But in a suit in the name of the husband and wife, the cause of action was the injury to the wife, and the recovery was limited to damages for that injury, including, of course,' the mental sufferings of the wife, and did not embrace the. injury to the husband, who alone was liable to pay the medical attendant, and who alone was considered damnified by the loss of the services and society of his wife. Fuller and wife v. R. R. Co., 21 Conn. 557, 571; 2 Redf. on Railways, 213, 3d ed. But our statute' has changed the common law rule as to parties in such cases. Bev. 2775. This provides 'that “in an action brought by a man and his wife for an injury done to the wife, in respect of which she is necessarily joined as co-plaintiff, it shall be lawful for the husband to join thereto elaims in his own right.” See Rev. § 2771. This was done in the present ease. If there were doubt as to the propriety of the testimony as tending to show the extent of the injury to the wife, there can be none as [141] to its propriety as tending to show the extent to which it would deprive the husband of the services of the wife. 6._attorney who receives per cent of recovery. 4. The point that the agreement of the plaintiffs with Mr. Latham was champertous, does not appear to have.been presented to the District Court. This agree-™®“t was set iip in the answer as showing that the proper parties plaintiff had not joined in the action. The point made was, that Latham, by virtue of this agreement was a real party in interest, and ■ought to have been a party to the action. The court held, that this was not 'such an assignment as would defeat the right to recover (see 4th instruction refused), or make it necessary that Latham should be a party plaintiff (see 3d paragraph of court’s charge). And in this view the court was correct. 2. Railroad: rules of company as to entering cars. . 5. It is next insisted, that the court erred in refusing to instruct as prayed by the defendant, and also in the charge of its own to the jury. The view taken by the court below will appear from ^ instructions refused and given, which are set out in the statement of the case and need not be here repeated. By recurring to the court’s charge in chief it will be seen that he made the deféndant’s liability turn' upon the question whether the step, which caused the accident, was loose. The jury were told in the charge that, if one of the steps was loose and not nailed down, by reason of which the accident happened, the defendant is liable unless the plaintiffs’ own want of care contributed to the injury; and such want of care does not exist if the jury find that an ordinarily prudent person would have gone down the steps of the platform, and would not have waited until the passenger cars were opposite the passenger depot. See paragraphs 4, 5, 6, and 1 of the charge. [142] These instructions assume, and necessarily imply, that the plaintiffs had the right to enter the cars when and where they attempted it, if an ordinarily prudent person would have pursued the course which the plaintiffs did, that is, if such persons would have gone down the steps and not have waited for the cars to be drawn, up to the platform opposite the passenger depot. The law on this subject is this: Railroad companies are held to a strict rule of accountability for the safety of passengers. This is salutary and right. To enable them properly to discharge this duty they have the power to make reasonable rules and regulations. They may make such rules and regulations respecting the time, mode, and place of entering cars. These, tohen known to the passenger, whether they have ever been written or published, or are posted up or not, he is bound to conform to; and he cannot violate them, and pursue another course and hold the company liable for damages thus occasioned, and which would have been avoided by conforming to the rules and regulations of the company, even though the jury may believe that an ordinarily prudent person would or might have adopted the same course. A railroad company has a right to require all passengers about to enter their cars, to do so only when the cars are brought up to the platform for that purpose. We cannot say, that it is a rule of law that the mere existence of a platform in front of a depot is necessarily notice to the passenger that the train will be drawn up at that place to receive him, and that the company requires that he shall wait and enter the cars at that place, and is prohibited from entering them elsewhere. In many places passengers are required or allowed by the companies to enter trains elsewhere than from the platform in front of the passenger station or depot. In [143] many places, also, railroad companies-fail to discharge a duty which they owe to the traveling public, by leaving them, without any assistance, to find out as best they can where the train is which they wish to take, how to reach, and when and where to enter it. New persons traveling in strange places and on strange roads b'ut have experienced the embarrassment arising from the failure of the company to have sign-boards, or officers or agents in attendance to give information of this character. See observations of Maule, J., to the jury in Martin v. R. R. Co., 81 Eng. C. L. on pp. 186, 187. A company may require trains to be entered at a particular place, as, for instance, in front of the passenger depot. Often, however’, there is no such requirement, and passengers are allowed, or at least not forbidden, to enter elsewhere. Applying these general principles to the case in hand, we are of opinion that the instructions asked by the defendant were faulty, in so far as they assume, as a matter of law, that it is the duty of a passenger, irrespective of any knowledge on his part of any rule or regulation, to wait, before entering the cars, until the train is drawn up in front of the passenger depot or platform. If he knew that it was to be thus drawn up, and that passengers were expected and required to wait until this should be done before entering the cars, he could not, with such knowledge, be justified in seeking to enter the cars in an unusual place and at an unusual time, and hold the company for damages thus occasioned. Why? Because he is not in the line of his duty and in the exercise of his lawful rights at the time. If the plaintiffs attempted to enter the cars at a place which they knew, or from the nature of the circumstances surrounding them, ought to have known, was not prepared or designed for receiving passengers, and at which [144] they knew, or from the circumstances ought to have known, the company did not allow passengers to enter, the company would not be liable as common carriers upon their contract — -however it might be if they had not been declared against in this capacity — for an injury happening in the prosecution of such an attempt. Why? The answer is, that, in making such an attempt, the plaintiffs would not be in the line of their duty, or in the exercise of any right conferred upon them by their contract with the company. 8. _ injury from defective platform: liability of company as common carriers. Applying the general principles before expressed to the charge of the court, and it is obvious that the minds of ^e jm7 were not directed to the proper grounds on which the defendant’s liability or non-liability would depend. The jury should ^ave q,een ¿irected to ascertain from the evidence whether the railroad company had designated or set apart the platform as the place where it required all passengers to enter the cars. If so, and this was known to the plaintiffs, and they in disregard of such requirement, and in advance of time, and without justification for so doing, sought to enter the- cars at another place, and in so doing, the wife met with the injury for which she sues, the company is not liable in this action as common carriers; and this is the capacity in which it is sued. If, on the other hand, there was no rule or regulation known to the plaintiffs requiring them to enter at the platform, and they in good faith, and using reasonable care were seeking to find and enter the cars, the defendant would be liable for an injury caused by the defective platform or steps leading to it, since the plaintiffs, it being dark or nearly so, would have a right to presume that the platform and its approaches were in a safe condition. [145] 10___ general rule. [144] We will not undertake to lay down any rule applicable [145] to the ever varied circumstances of all cases .which may arise. The gist of such an action as the present, if no known rule or regulation of the company, reasonaT-,le jn character, has been violated, is negligence; and what constitutes negligence so as to give an action, it is impossible to define in a rule which shall comprehend all cases. The recent adjudications in the cases below cited, have been carefully examined, and they warrant us in laying down the general principles before expressed. Upon reason, that is, enlightened common sense, applied to the relation which railway companies sustain to the public, and applied to the nature of man and the mode in which the business of carrying passengers is practically and usually transacted, and upon the authority of decided cases, we are justified in laying down the following general rule as to the duty of such companies, to wit, that they are bound to keep in a safe condition all portions of their platforms and approaches thereto to which the public do or would naturally resort, and all portions of their station grounds reasonably near to the platforms, where passengers or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go. Burgess v. R. R. Co., unfenced hole in station ground near depot building (95 Eng. C. L. 923, 1858); Martin, v. R. R. Co., defective light in station grounds where passengers would naturally go (81 id. 179, 1855); Cormman v. R. R. Co. (4 Hurlstone & Nor. 781, 1859), remarks of Martin, B., and Watson, B., as to open place in platform; Crafter v. R. R. Co., 12 Jur. N. S. 272; S. C., 1 Law R. C. P. 300, 1866; Longmore v. R. R. Co., 19 C. B., N. S. 183; S. C., 115 Eng. C. L. 183, 1865; Sawyer v. R. R. Co., 27 Verm. 377; Murch v. R. R. Co., 9 Foster, 9, 39, 40, remarks of Bell, J.; Frost v. R. R. Co., 10 Allen, 387, 1865; [146] For the error before mentioned in the instructions of the court, the judgment is reversed, and the cause remanded for a new trial in accordance with the rules and principles of law herein expressed. Reversed.