64 Neb. 636 | Neb. | 1902
John P. Sattler, tte defendant in error, is administrator of the estate of Emanuel Leveroni. The deceased was killed by a train of the railroad company at the station of Alvo, in Cass county, Nebraska, on the 11th of April, 1899. The jury returned a verdict against the company for $4,000, upon which judgment was entered, and the com
There is little or no dispute over the facts in the case. Leveroni, the deceased, was a through passenger over the railway of the plaintiff in error from the city of Denver to Chicago. The train upon which he was traveling arrived at the station of Alvo from the west on schedule time at 2:52 in the afternoon. On its arrival at the station the train went upon a side trade to await the arrival and passage of a west-bound train which was then due at that point; its schedule time being the same at that station as the train upon which the decedent ‘was traveling. The train from the east was behind time, and, whthe the train upon which Leveroni -was a passenger was wai ting on the side track, Leveroni left his train, crossed over the main track to the depot platform and to a pump a few feet wrest of the depot, to get a drink of water. About the time that he reached the pump the west-bound train was heard to .whistle, wrhen Leveroni left the pump and started on a run for his car, and in crossing the track upon which the Avest-bo.und train was approaching the station, was struck by the approaching train and instantly killed. The eastbound train upon which he wa.s a traveler did not move from the side track until after the deceased was killed, nor had any signal or order been given that said train would move or start. It might be further stated that the. (vidence is undisputed that there was plenty of good drinking water in the car upon AAhich the deceased was a passenger, and in all the cars of that train.
Two questions are presented by this record for our determination: (1.) Was the deceased a passenger, within the legal meaning of that word, after leaving his car whthe it was standing upon the side track for the purpose of allowing an approaching train to pass? (2.) If he was such passenger can his administrator claim for him or his estate the benefits of the provisions of section 8 of chapter 72 of the Compthed Statutes of 1901?
Relating to the first question, the courts may be said
Of the two classes of cases which we have been examining, we think that the latter establishes the better rule. In this country of long journeys by railway trains, there can be no impropriety in a passenger claiming the right, which may be said to be established by long custom, to leave his car at any intermediate point on his journey, where a stop of any considerable time is made, to send a message, to obtain exercise and relief by walking up and down the platform, or to gratify his curiosity, provided he does not interfere with the employees of the company, or run counter to any established rule brought to his notice. In the exercise of this privthege he does not lose his character of passenger, and the common-law duties of the carrier are still to be exercised in his behalf, and injuries received on account of a failure on the part of the carrier to observe all its duties toward him required by the rules of the common law must be responded to in an action for damages. We think that the supreme court of Massachusetts has announced the true rule in Dodge v. Boston & Bangor Steamship Co., 148 Mass., 207, where the following language is used: “To determine the rights of the parties in every case, the question to be answered is, what shall they be deemed-to have contemplated by their contract? The passenger, without losing his rights whthe he
All the cases agree that the carrier must furnish safe ingress and egress to and from the train for its passengers. In many of the larger stations the passenger has to cross two or three or four tracks in going to or from his train. In such cases he may assume that the.company will see that his way across such tracks is clear and uninterrupted, and that no injury will be incurred in crossing the same. In Jewett v. Klein, 27 N. J. Eq., 550, it is held that a person who, in passing from the depot to the train he was about to take, was obliged to cross an intervening track, was not guilty of contributory negligence in that he did not, before approaching the train, look up or down the track to see whether there was danger from an approaching train, and in that he approached the train diagonally
We do not care to extend this rule to passengers who leave the train at an intermediate ¡Station at a place other than that used by the carrier for the ingress and egress of its passengers. One who leaves the train at a point not intended for the discharge of passengers, and whthe the train is standing for some other purpose, must himself assume all the ordinary risks incident to his action. The cases above cited differ from the case at bar in the fact that the passenger left or boarded the train at its regular stopping place, and at the point where passengers were regularly received and discharged.
In the case now under consideration no stop was made to receive or discharge passengers. The train was not run to the depot platform but was side-tracked to allow the passage of the west-bound train. It is probably true that parties who desired either to board or leave the train at Alvo, and who were aware of the custom of the train to side-track at that point to allow the west-bound train to pass, took advantage of the opportunity thus offered to take passage on the train, or to leave it whthe standing on the side track; but no inducement to do this was extended by the company, as the evidence discloses that it refused to sell tickets to passengers who desired to take this train at that station. Those on the train must have
Having now defined what we believe to be the rights of a passenger at common law, we will proceed to examine our statute relating to injuries received by passengers whthe bein’g transported oyer a railway, and the questions discussed in the briefs of counsel in the light of that statute.
Section 3 of chapter 72 of our Compthed Statutes is as follows: “Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers whthe being transported over its road, except in cases where the injury done arises from the criminal negligence of the person injured, or when the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or her notice.” In Chicago, B. & Q. R. Co. v. Landauer, 39 Nebr., 803, it was held that this statute made a common carrier an insurer of the safety of its passengers, except as against the gross
“Although no one but passengers can be brought within the section, yet it is not designed to cover injuries to all passengers. By express provision, as clear and positive as language will permit, the section carved out of the general body of passengers of a company, the particular class thereof to which it applies. ‘Every railroad shall be liable for all damages inflicted upon the person of passengers’ (so reads the section) ‘while being transported over its road.’ The liability imposed by this section, with respect to injuries to passengers, extends only to those injuries which passengers receive while such passengers ‘are being transported over its road.’ The clause ‘while being transported over its road’ is a clear limitation modifying the general word ‘passengers’ in the section. Therefore, to bring a case within this section, it must be shown that when the injury was received by a person he was not only a passenger, but that at the time of the injury he was, as such passenger, ‘being transported over the line of the railroad company.’ There is, of course, a manifest reason for this qualifying clause. The purpose of the act was to relieve the passenger injured ‘while being transported over the line of the company’ from the necessity of specifically proving the act of negligence which caused the injury. The passenger who buys a ticket and takes his seat upon the train, may know that the court will presiime that any injury which he receives on account of the operation or management of the train, will be presumed*645 to be attributable to negligence on the part of the railroad company. The train and all agencies connected with its management belong to the railroad company. All knowledge with respect to the cause of injuries resulting from the operation or management of the train is known to the company, but these causes may be difficult for an injured person to ascertain. The section was designed to relieve the passenger, so injured, from the necessity of proving the specific act of negligence. This manifest reason for the adoption of this section shows the purpose of the insertion of its provision ‘while being transported over its road.’ After a. person leaves the train provided for his transportation, then whatever dangers he encounters are dangers not connected with the operation and management of his train; and if he is injured he must prove negligence, and recover, if at all, upon the common-law liability. while riding upon the train provided for his transportation, he may not be able to learn the cause of an injury so received, due to the operation and management of the train. Therefore, as was said, this section was provided to relieve him of the necessity of proving such acts. But when the passenger leaves the train provided for his transportation, and is injured by reason of dangers entirely disconnected from the operation and management of his train, then there will be no difficulty in his ascertaining the cause of his injury, and in alleging and proving it in case of suit. Therefore the legislature did not intend that the presumption of negligence provided by the section should apply to such a case; and, to make the meaning clear, the legislature expressly made the section apply not to injuries to all passengers, but to injuries received by passengers ‘while being transported over the road of the company.’ The legislature having expressly limited the operation of the statute to the cases of injury received by passengers ‘while being transported, over the road of a company,’ this court can not obliterate the qualifying clause referred to. This court, in construing this statute, must give effect to every provision thereof.*646 When the legislature expressly limited, this section to cases of liability for injuries to those passengers only who were injured ‘while being transported over the road of a company/ this court has no power or authority, nor will it have any inclination to nullify the express will of the legislature and to extend this section to cases which the legislature expressly excluded from its effect.”
We are agreed that the words “whthe being transported over its road” is a qualifying'phrase, intended to limit liability on the part of the company, and that we must give it the force intended by the legislature. We can not, however, agree with plaintiff in error that it was intended to exclude all passengers who leave the car provided for them by the carrier. It is well known that many—perhaps most—roads provide eating houses and other accommodations for the comfort or convenience of their patrons, and that regular stops are made for meals, requiring the passengers to leave the car in which they are being transported, and often to cross numerous tracks on their way to and from the car to the dining room or restaurant. In such cases one does not lose his character as a passenger in the course of transportation ovér the road, or the protection of the statute. The duty of the company to provide him safe egress and ingress for such necessities as are required on his journey, and which the road assumes to furnish, and which it invites him to partake of, is no less stringent than to furnish him safe passage on its cars. Whthe seated in the dining room of the company he is under its control, and must conform to its rules, as fully as whthe on the train; and whthe thus subject to the rules and regulations of the company, he is their passenger, entitled to like protection from damage from the operating of the road as whthe seated in the car, proceeding on his journey. We believe and hold that it was intended to include in the words “whthe being transported over its road” all passengers actually on the train, whether the same is in motion or standing on any part of the road: and it further includes those passengers leaving the train
We know of no rule of law that allows a recovery under such circumstances, and we recommend that the judgment of the district court be reversed find the case remanded for further proceedings according to law.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the case remanded for further proceedings according to law.
Reversed and remanded.