121 Minn. 511 | Minn. | 1913
This action is brought by plaintiff as father of Edward Eox, his infant son, to recover damages for personal injury to said son. On October 28, 1911, plaintiff and his son were passengers on defendant’s train, arriving at Mankato about 8 o’clock p. m. The injury was occasioned by the child falling from the platform or steps of the ■car as the train was approaching the depot at Mankato. Several questions are involved: (1) Was the defendant negligent ? (2) If so, was its negligence the proximate cause of the injury? (3) Was there any negligence imputable to the child?
Defendant produced evidence that the train did not stop until it reached the depot platform; that the brakeman called the station and opened the door about a block from the depot platform; that ■plaintiff in fact sat in the smoking car; that at Eock street the train only slowed down for a curve; that, as it did so, plaintiff went to the :front vestibule of the smoking car; that the door of this vestibule
It was for the jury to say whether plaintiff’s evidence was true. The witnesses against him were a majority in number, but that does not warrant this court in setting aside the verdict. There is nothing inherently improbable in plaintiff’s story. This train did occasionally stop near Rock street because of other trains ahead. The accident did not come to the attention of defendant’s witnesses until the following day or later. It is quite conceivable that they should be mistaken in their recollection as to whether this was one of the evenings on which the train did stop at Rock street. The trial court has seen fit to let the finding of the jury stand. We shall not disturb it.
If the facts were as plaintiff stated, then the acts of the brakemen in calling the station, opening the doors of the car and vestibule, and then calling the station again, were clearly an invitation to passengers to alight as soon as the train came to a full stop. Thompson, Negligence, § 2881; Ellis v. Chicago, 120 Wis. 645, 98 N. W. 942, and if, after such invitation, without further notice or warning, and in the night time, the train stops at a place other than the station and suddenly starts again, there is such a breach of duty to passengers as will constitute negligence. 4 Elliott, Railroads, § 1628; Pennsylvania v. Hoagland, 78 Ind. 203; Larson v. Minneapolis & St. L. R. Co. 85 Minn. 387, 88 N. W. 994; Burnside v. Minneapolis & St. L. R. Co. 110 Minn. 401, 125 N. W. 895; 5 Am. & Eng. Enc. (2d ed.) 565; Philadelphia v. Edelstein, 1 Monaghan 205 (Penn.) 16 Atl. 847; Diggs v. Louisville & N. R. Co. 156 Fed. 564, 84 C. C. A. 330, 14 L.R.A.(N.S.) 1029; Englehaupt v. Erie, 209 Pa. St. 182, 58 Atl. 154.
Farrell v. Great Northern Ry. Co. 100 Minn. 361, 111 N. W. 388, 9 L.R.A. (N.S.) 1113, is readily distinguishable from this case. In that case plaintiff was riding in a stock car, with his brother-in-law. At a station 12 miles from St. Cloud he asked the conductor if he could go back to a car containing his own stock. The conductor replied, “You won’t have time here. The next stop will be St. Cloud.
Of course plaintiff was acquainted with the environment andr had he paid close attention to his surroundings, he would have known that the station had not been reached. He said that, by rea-1 son of the conduct of the brakeman, he did not pay much attention to his surroundings. There is evidence that this train frequently pulled up “past the depot,” and stopped at a point where the outlook was not greatly different from that at Eock street, and we cannot say as a matter of law that plaintiff’s inadvertence and not the act of the brakeman was the proximate cause of the injury.
The issues of fact were fairly and correctly submitted to the jury. The jury found for plaintiff, the trial court has refused to disturb the verdict, and there is evidence sufficient to sustain it.
Order affirmed.