Smalley v. Detroit & Mackinac Railway Co.

Grant, J. (after stating the facts). 1. The negligence alleged is the failure to stop the train a reasonable length of time for her to alight, and the sudden stoppage of the train without notice or warning, or giving her sufficient time to re-enter the car. It is admitted that no warning was given, but it is insisted that she knew of the danger, and was herself negligent in not re-entering the car, or taking reasonable precautions to protect herself. The conflict of testimony upon the length of time the train stopped rendered the question a proper one to submit to a jury. Every passenger is entitled to sufficient time within which to alight after the train has stopped. 3 Thomp. Neg. § 2876. It is also the duty of the passenger to move with reasonable promptness and speed. If- railroad companies see fit to permit their cars to be crowded beyond their capacity, either upon excursions or otherwise, they are bound to see that passengers have a reasonable time, and are afforded reasonable facilities, to extricate themselves from the crowd and alight. The length of time will depend upon circumstances. Where the train is crowded and passengers are occupying the-aisles, a longer time is required than when the train is occupied with the ordinary number of passengers. Whether, as a matter of law, the brakeman, under his own testimony, was guilty of negligence in giving no warning to or taking no steps to protect the plaintiff be [563] fore stopping the train, we need not determine. The question of negligence was left to the jury. If the conduct of the brakeman was negligence per se, the defendant has no cause of complaint because it was left to the jury. When a passenger has reached the platform in his efforts to alight, and finds the train moving, it is negligence to cause the train to be so suddenly stopped as to 'throw the passenger down, when no reasonable effort has been made to secure his safety. The evidence upon all these points was sufficient to .justify the court in submitting the question of the defendant’s negligence to the jury. 2. The question of contributory negligence was properly left to the jury. Plaintiff was notified and invited to alight. According to her evidence, she had exercised diligence in moving to the platform for that purpose. Arriving upon the platform, she found the train in motion. Instantly the brakeman signaled the engineer to stop. Evidently it was but a few seconds between her informing the brakeman that she desired to alight and the sudden stoppage of the train. The brakeman: acted in great haste. The risk of stopping a train under these circumstances was not one of the risks assumed by travelers. We cannot say that she was guilty of contributory negligence in not attempting to re-enter the car, or to let go of her dress and take hold of the railing to protect herself. Her conduct, in view of all the testimony, became a question for the scrutiny of the jury. It cannot be said that the average prudent person would have acted differently from what she did, in view of the entire surroundings. It is unnecessary to discuss the facts further. The case is squarely within Strand v. Railway Co., 64 Mich. 216 (31 N. W. 184). 3. The learned counsel for defendant have selected a few isolated sentences from the charge of the court, and allege error upon them. When read in connection with the entire charge, they become harmless, even if they were erroneous. The learned judge very clearly in his charge, read as a whole, left to the jury the two questions [564] of negligence and contributory negligence, with ample evidence on which to sustain the conclusions reached by the jury. The judgment is affirmed. Hooker, C. J,, Moore and- Montgomery, JJ., concurred.