Cousins v. Lake Shore & Michigan Southern Railway Co.

96 Mich. 386 | Mich. | 1893

Montgomery, J.

Tbe plaintiff was a passenger on the defendant’s regular train, and received the injuries which she complains of while attempting to alight from the train at Pittsford. The plaintiff’s contention is that the train failed to stop a sufficient length of time to afford reasonable opportunity for getting off; that while attempting to alight with all possible dispatch, and following closely after another passenger, she was thrown to the ground, and received serious injuries. It appears that the plaintiff discovered that the train was in motion while on the platform or in the door of the car. She recovered a verdict of $7,000, and defendant appeals. The assignments of error are numerous, but we shall advert only to those which present questions which are likely to arise upon a new trial.

1. The first error relied upon is the refusal of the learned circuit judge to instruct a .verdict for the defendant. We think that, under the circumstances of this case, the defendant was not entitled to this instruction. The law upon the subject ought no longer to be in doubt. It is undoubtedly prima facie negligent for a passenger to attempt to alight from or board a moving train, but it is not in all cases negligence per se to attempt to do so. If one is, by the wrongful act of the carrier, placed in a position where, under a sudden impulse to save himself from serious inconvenience, he attempts to alight from a moving train, where the danger is not imminent, and where persons of ordinary care and caution would make the attempt, it is not necessarily negligent. In such cases it becomes a question for the jury. See Beach, Contrib. Neg. (2d ed.) § 147; Bish. Non-Cont. Law, § 1101; Whart. Neg. § 377; Thomp. Trials, § 1684; 2 Amer. & Eng. Enc. Law, 762; Shannon v. Railroad Co., 78 Me. 52; Crissey v. Railway Co., 75 Penn. St. 83; Strand v. Railway Co., 64 Mich. 216; McCaslin v. Railway Co., 93 Id. 553.

2. Error is assigned upon the refusal of the circuit judge to submit the following special questions to the jury:

“1. Did the conductor assist Mrs. Pettyt to alight from the train?

Did he wait at that point, to see if other passengers were coming, before starting for the head of his train?

“3. Did he walk from that point to the baggage car before giving the signal to the engineer to go ahead?

"4. Had the car gone a distance of about 30 feet when Mrs. Cousins stepped off.”

We think the court was right in refusing to submit these questions. Whatever the finding of the jury might have been thereon, such finding would not have been inconsistent with the general verdict for the plaintiff. It is not the duty of the trial judge to submit mere questions of evidence to the jury. The questions must be so framed as to call for an answer which may be controlling of the main issue. Balch v. Railroad Co., 78 Mich. 654; Crane v. Reeder, 25 Id. (Ann. ed.) 304, and note. Reliance is placed by defendant’s counsel upon Sherwood v. Railway Co., 82 Mich. 374; but a careful reading of that case will disclose that the main issue was whether the plaintiff attempted to alight while the car was in motion, and the pleadings were so framed as to make that the vital issue in the ease. It was held that an affirmative answer to the questions proffered would have demonstrated that the train was in motion when the plaintiff descended the steps to alight, and that, under the pleadings in that case, such a finding would have been inconsistent with the general verdict. But in the present case, while it may be true that an affirmative answer to these questions would have demonstrated that the train was in motion, yet this was not necessarily conclusive of her right to recover. The theory of plaintiff was that the train was in motion before she attempted to alight, but that she discovered this fact after she had reached the platform of the ear, and that she acted as a reasonably prudent person might be expected to act under the circumstances, in the excitement occasioned by the defendant’s alleged default.

3. The plaintiff is a married woman, and offered no testimony which tended to show that she had expended any money in an attempt to be cured of her injuries. The circuit judge, in stating the plaintiff’s claim to the jury, said that it was a part of her claim that she had been put to a considerable expense in seeking to be cured of the difficulty which was brought upon her by the negligence of the company, as it is claimed by her; and further instructed the jury that, if the- plaintiff was entitled to recover,—

“ She would be entitled to recover such amount as would reasonably compensate her for the injury which she received, and the moneys which she may have expended in seeking, reasonably, to cure herself of injuries which she so received^ since such injury- and before the bringing of this suit; and more particularly she is entitled to recover for the pain, suffering, loss of capacity to work and enjoy herself as a member of society, as well as for moneys she may have expended in seeking to cure herself of this malady.”'

There was error in giving these instructions to the jury.. See Reed v. Railroad Co., 57 Iowa, 23; Eckerd v. Railway Co., 70 Id. 353; Folkerts v. Standish, 55 Mich. 463; Seligman v. Ten Eyck Estate, 60 Id. 267; Hudnut v. Gardner, 59 Id. 341; Stilson v. Gibbs, 53 Id. 280.

The judgment will be reversed, and a new, trial ordered.

Hooker, C. J., McGrath and Long, JJ., concurred. Grant, J., did not sit.