144 Ill. 261 | Ill. | 1893
delivered the opinion of the Court:
In this country it is the almost universal practice to announce the station which the train is approaching before it is reached, and while the train is still in motion. And it is universally understood that such announcement is intended as notice to passengers, without warning to the contrary, that the next stop of the train will be at the station announced. The purpose is understood to be, to enable the passengers intending to alight at that station, to be ready to leave the cars promptly, without undue haste or inconvenience to themselves or unnecessary delay of the train. It is not to be expected that there will he the same particularity in drawing up to a station by a freight train, as by a train devoted to passenger service. The great length and weight of such trains and the appliances necessary in their operation render them less easy of control. And so the public, presumably, understand, and conduct themselves accordingly. In this connection, the errors assigned to the ruling of the court in refusing the tenth, eleventh, twelfth and thirteenth instructions asked by appellant may be considered.
These instructions severally told the jury that no recovery could be had under the first, second, third and fourth counts of the declaration.
The first, second and third counts allege that it was the duty of the defendant to safely carry plaintiff from Bloomington to Shirley, and there slacken the speed of its train with due care, and stop the same a reasonable time to enable plaintiff to alight, etc., and that the defendant did not use care and diligence in slackening the speed of its train, or stop its train at Shirley, etc., while the plaintiff was alighting therefrom, with due care, etc., caused the same to be suddenly and violently started forward, etc., whereby she was thrown down, etc., and injured.
The fourth count varies the same charge, and alleges, that: “ While the plaintiff with the consent and permission of defendants, with due care, etc., was arising from her seat to alight,” etc., the defendant caused the train to be suddenly started, etc., whereby, etc.
The implied contract to carry safely necessarily includes the furnishing of reasonable opportunity to alight from the train safely at the end of the journey. R. R. Co. v. Aspell, 23 Pa. St. 147; Imhoff v. Chicago, etc., R. R. Co., 20 Wis. 36; Jeffersonville R. R. Co. v. Hendricks’ Admrs., 26 Ind. 228; Burrows v. Erie Ry Co., 63 N. Y. 556; Dougherty v. Chicago, etc., Ry. Co., 86 Ill. 467; W., St. L. & P. Ry. Co. v. Rector, 104 id. 296.
Whether appellee was, under the circumstances shown, justified in assuming that it was the intention of those in charge of the train to discharge passengers for Shirley, at the time and place of the first stop of the caboose in which she was riding, was a question of fact for the jury. If the conduct of appellant’s servants and their management of the train amounted to an invitation to then alight, and would be so understood and acted upon by reasonable and prudent persons, and appellee, acting in good faith upon such invitation, arose, upon the train coming to a standstill, for that purpose, the jury would be justified in finding that she was in the exercise of ordinary care for her own safety. If she, by reason of such apparent invitation, was placed in peril from the farther movement of the train, the duty at once arose, on the part of appellant, to stop its train a sufficient length of time to permit her to leave it in safety, or to warn her of the danger in time to avert injury. And it could not, in such case, be material, whether the shock to the train producing the injury was an incident of the ordinary operation of" the train, or was extraordinary and unnecessarily violent. The duty of the carrier was to be measured by the peril to the passenger whom it had accepted and undertaken to safely carry, and who had been induced by the conduct of its servants to assume a position of danger. In McNulta, Receiver, etc., v. Ensch, 134 Ill. 46, speaking of the duty of the receiver, who was operating the railroad, we said.: “ Having, by the acts and conduct of his servants, justified the plaintiff in attempting to get off the train, the duty of defendant attached to stop his train at the station a sufficient length of time to enable the plaintiff to reach the platform in safety,” and held, that the duty related to the place where the plaintiff had been induced, by the conduct of the servants and the stopping of the train, to believe he was to alight, and not to the final stopping of the train after the injury, a few feet further on, at the same platform. See, also, Tabor v. Del., etc., R. R. Co., 71 N. Y. 489; Cent. Ry. Co. v. Van Horn, 38 N. J. L. 133; Columbus, etc., Ry. Co. v. Farrell, 31 Ind. 408; Bridges v. North London Ry. Co., L. R., 7 H. L. 213; Nance v. R. R. Co., 94 N. C. 619; Praeger v. Bristol, etc., Ry. Co., 24 L. T. (N. S.) 105.
But it is insisted that the rule announced in these cases has no application here, for the reason that appellee, having voluntarily taken passage upon a freight train, assumed all risk incident to the operation of such train, in the usual and ordinary manner in which such trains are managed and operated. Persons taking passage upon freight trains, or in a caboose or car attached to a freight train, can not expect or require the conveniences or all of the safeguards against danger that they may demand upon trains devoted to passenger service, and are accordingly held to have accepted the accommodation provided by the company, subject to all of the ordinary inconveniences, delays and hazards incident to such trains, when made up and equipped in the ordinary manner of making up and equipping such trains, and managed with proper care and skill. The passenger has a right to presume that the train is thus made up and equipped, and that the cars, machinery and appliances are not, of their kind, so materially defective as to increase the ordinary hazards of transportation by such trains. He may take the train or not, at his option, and if he voluntarily selects such a train he should be and is held to have accepted it in discharge of the liability of the carrier to provide a safer and better mode of conveyance, and to have assumed the risk and inconvenience incident to its proper management and operation.
But if a railway company consents to carry passengers for hire by such trains, the general rule of its responsibility for their safe carriage is not otherwise relaxed. From the composition of such a train and the appliances necessarily used in its efficient operation, there can not, in the nature of things, be the same immunity from peril in traveling by freight train, as there is by passenger trains, but the same degree of care can be exercised in the operation of each. The result in respect of the safety of the passenger may be wholly different, because of the inherent hazards incident to the operation of one train and not to the other, and it is this hazard the passenger assumes in taking a freight train, and not hazard or peril arising from the negligence or want of proper care of those in charge of it. Ordinarily, carriers of passengers for hire, while not insurers of absolutely safe carriage, are held to the exercise of the highest degree of care, skill and diligence, practically consistent with the efficient use and operation of the mode of transportation adopted. Tuller et al. v. Talbott, 23 Ill. 357; C., B. & Q. R. R. Co. v. Hazzard, 26 id. 373; C. & A. R. R. Co. v. Pillsbury, 123 id. 9, and case cited. And this rule applies, in the absence of a valid contract limiting the liability of the carrier, whenever the relation of passenger and carrier is established. While it is said that the “ utmost care ” and the “ highest degree of diligence ” is to be exercised, it is to be understood that the care and diligence exacted is not such as will exclude all possible peril, or required to be of that degree that will render the use of the instrumentalities of transportation, known to be employed, impracticable; but it always has relation to the mode of conveyance accepted and used, and the conditions and circumstances necessarily attendant. In the operation of freight trains, the primary object is the carriage of freight, and the appliances used are, and are known by the passengers to be, adapted to that business, and the carrier is not, when transporting passengers thereon, held to a degree of care in its operation that would destroy the use of the train for its primary purpose. But the law does require that the highest degree of care be exercised that is practicable and consistent with the efficient use of the means and appliances adopted. And the carrier must accordingly be held to the same strict accountability for negligence of its servants injuriously affecting the passengers, as it would be, if the transportation had been by a train devoted to passenger service exclusively.
We need not extend this opinion by further discussion of the reasons for the rule; it is based upon a wise public policy, as well as upon the plainest principles of reason and justice and is sustained by authority. R. R. Co. v. Muhling, 30 Ill. 9; C., B. & Q. R. R. Co. v. Hazzard, 26 id. 381; S. C., 1 Biss. 513; I. & St. L. R. R. Co. v. Horst, 93 U. S. 291; Ohio, etc., Ry. Co. v. Dickerson, 39 Ind. 317; R. R. Co. v. Doane, 115 id. 435; P. & C. Ry. Co. v. Thompson, 56 Ill. 138; Edgerton v. N. Y. & H. R. R. Co., 35 Barb. 389; S. C., 39 N. Y. 227; DeLaye v. N. Y. Cent. Ry. Co., 56 Barb. 227; Dunn v. G. T. Ry. Co., 58 Me. 187.
If, therefore, appellee was, in consequence of conduct of appellant’s servants and their management of the train, placed in danger of injury from its farther movement, and the train was jerked forward without notice or warning of the danger, and she was thereby injured, appellant would be liable. It is no answer to say that the train was operated in the ordinary and usual manner of running and operating freight trains. The duty of the carrier was to be measured by the peril of the passenger, whom it had accepted and undertaken to safely carry, and who had been needlessly put in danger by the acts of its servants, and its responsibility by the consequences that might result to her, from a failure to observe that duty. There being evidence tending to establish a neglect of the duty charged in the first, second, third and fourth counts of the declaration, the tenth, eleventh, twelfth, thirteenth and fourteenth instructions asked by appellant were properly refused.
It is objected that the court erred in giving appellee’s second and third instructions. These instructions were based upon the theory that it was the duty of appellant to stop its train long enough at the first stop, shown by the evidence, to permit the plaintiff to alight in safety, and while, perhaps, not strictly accurate, they each state the law as applicable to the fact shown, with substantial correctness.
It was undoubtedly the duty of the railway company to bring its train to a full stop, “ with due and proper care and caution, with reference to the personal safety of the passengers, and, thereupon, not to start or move forward such train in an improper and dangerous manner at a time when such passengers might rightfully, in the exercise of due care and caution, arise from their seats and prepare to leave the train at such station.” In our view the proposition quoted contains a substantially accurate proposition of law, and no further discussion will be necessary.
Nor will it be necessary to discuss or determine whether there is evidence to sustain the allegations of negligence charged in other counts of the declaration, or whether permitting the nineteen freight cars to run free upon the down grade, without any attempt to control them, thereby communicating an accelerated jerking motion to the caboose, was negligence in the operation of the train.
We find no error in this record for which the judgment of the Appellate Court should be reversed, and it is accordingly affirmed.
Judgment affirmed.
