McDermott v. Chicago & Northwestern Railway Co.

Pinney, J. It is the duty of a common carrier of passengers to provide and maintain safe alighting places, and it must respond in damages to a passenger who, without contributory fault on his part, is injured by a negligent failure to perform this duty. It is the duty of the railway carrier to make it safe for its passengers to leave its cars, and in the case of female passengers, at least, they have a right to expect aid or assistance from the brakeman or some other employee of the company to assist them in alighting. Delamatyr v. M. & P. du C. R. Co. 24 Wis. 518; Patten v. C. & N. W. R. Co. 32 Wis. 531-585; Jeffersonville, M. & I. R. Co. v. Hendricks, 41 Ind. 48; Louisville, N. A. & C. R. Co. Lucas, 119 Ind. 589, 590, and cases cited; Cartwright v. C. & G. T. R. Co. 52 Mich. 606. In Robson v. N. E. R. Co. L. R. 2 Q. B. Div. 85-88, it is said that “ it is clearly the law that railway companies are bound to find reasonable means for passengers to alight at every station at which they choose to stop,” and that “the bringing up of a train to a final standstill, for the purpose of passengers alighting, amounts to an invitation to alight, at all events, after such a time has elapsed that the passenger may reasonably infer that it is intended that he should get out if he [252] purposes to alight at the particular station; ” and that “ an invitation to passengers to alight on the stopping of a train, without any warning of danger to a passenger who is so circumstanced as not to be able to alight without danger, such danger not Toeing visible cmd cvpgotwent, amounts to negligence.” It was contended, among other things, that the evidence of negligence on the part of the defendant was not sufficient to warrant the court in submitting the case to the jury; that the plaintiff was guilty of negligence materially contributing to her injury; and that the court improperly withdrew from the jury the consideration of the question of her contributory negligence. The testimony tended to show that the plaintiff delayed coming out of the car'to alight, in consequence of being incumbered and embarrassed with packages and parcels, until the other passengers had left; that all had left save one, who went out of the other end of the car, and had alighted and gone out of the gate, and that it was reasonable for the brakeman in charge to suppose that all had alighted, and he. accordingly left his post, supposing there was no occasion for him to longer remain. Accordingly, the court submitted it to the jury to say whether the plaintiff “left the car with reasonable diligence, such as could properly be required of a passenger in her circumstances and under the facts and circumstances of the case; ” and, if so, that “ the jury should find that she was not guilty of any want of ordinary care, because no other want of ordinary care is imputed to her either in the pleadings or in the evidence; certainly not in the evidence.” We think that this instruction is plainly erroneous. The defendant in its answer had averred that the plaintiff’s alleged injuries “ were caused by the negligence and want of care of the plaintiff while attempting to alight from said train,” and the testimony of the plaintiff herself tended directly to support the answer in this respect. By this in [253] struction the question of contributory negligence alleged, and which the testimony tended to prove, was taken from the consideration of the jury, and they could not do otherwise under it than find, as they did, that the plaintiff, in leaving and descending from said car, was not guilty of any negligence or any want of ordinary care on her part which proximately .caused or contributed to the injury of which she complains. The negligence imputed to the defendant company, and specified in the verdict, consists of the facts found — that the bench was nothin the absence of any brakeman or assistant stationed to assist passengers in alighting, a reasonably safe appliance; that although the plaintiff delayed her exit from the car so long as to justify the brakeman in supposing that all the passengers had left the car, and that he left the platform and bench and went about his other duties before the plaintiff and one other passenger had left the car, yet it was negligence on his part to do so without first ascertaining whether or not any passengers were still in the ear and might need his assistance in alighting; that this neglect was the proximate cause of the injury; that, though the movable bench was in a reasonably safe condition, it ■was not placed in a reasonaVhj safe position ¡ and that this, too, was a proximate cause of the injury. Although there was a general finding that the defendant, its officers, agents, or employees, were guilty of negligence which was the proximate cause of the injury, yet there is not the slightest proof of any act of negligence on their part that is not negatived by the verdict, save in the two respects mentioned,— the absence of the brakeman or other assistant when she came out of the car to alight, and the unsafe position of the bench, both of which facts were so obvious that she noticed them at once upon coming out upon the platform of the car, and she gives in her testimony a particular description of the alleged unsafe location of. the [254] bench. By a very slight delay and inconvenience, both of these alleged causes of peril could have been avoided. The train had arrived at the end of its routó, and there was no occasion for hasty or inconsiderate action on her part. She was incumbered and embarrassed by quite a number of packages or parcels, one of which was quite heavy; so she called for a man, who in fact was an employee of the company, to assist her, and he took part of them and laid them down on the floor of the station near the fence, and turned to render her further aid, when he saw that, with the remainder of the bundles, she had attempted to descend without awaiting the aid or assistance then at hand to enable her to do so in safety, and in so doing had fallen and sustained the injury for which she now. claims and has been awarded damages. She chose voluntarily, and under no occasion for haste or stress of circumstances or danger of the least injury, to encounter what seemed to her an obvious danger, without waiting to avail herself of the aid to descend then at hand. The jury concurred in their finding with her in her judgment of the situation, and found that the bench was not placed in a reasonably safe position. It is claimed that her own imprudence and precipitate action were the proximate cause of her injury, and that the result is not imputable to the negligence of the brakeman in leaving his post, for that had been obviated by the arrival of the other employee, whose assistance she had asked; and this contention derives very considerable support from the plaintiff’s own testimony. Upon the mere mention of anything which appeared unsafe in the position of the bench, that, too, would doubtless have been obviated. It was her duty to make the request, instead of encountering the danger which she had already discovered, embarrassed as she was by the parcels and packages. It is clear that it was error for the court to withdraw from the consideration of the jury the question of contrib [255] utory negligence in the manner it did, by the instruction complained of. For these reasons we consider the judgment of the circuit court erroneous. By the Oourt.— The judgment of the circuit court is reversed, and the case is remanded for a new trial.