72 Neb. 773 | Neb. | 1904
Lead Opinion
This action was brought by Axsel ITagblad, defendant in error, hereinafter styled the plaintiff', against the Fremont, Elkhorn & Missouri Valley Railroad Company, plaintiff in error, hereinafter styled the defendant. Judgment was rendered for the plaintiff below, and the defendant below brings error to this court. The sole error as
“1. The plaintiff for cause of action alleges that the defendant is a corporation duly organized under the laws of the state of Nebraska, and has been such corporation for ten years last past; that the defendant is a corporation engaged in the railroad business, and for ten years last past it has been a common carrier of passengers for hire upon its railroad, and has owned and operated a line of railroad in the counties of Madison, Antelope and Holt in the state of Nebraska; that Norfolk and Meadow Grove are stations upon the defendant’s line of railroad in Madison county where it receives and delivers passengers on and from its trains, and that the defendant on the 28 th day of December, 1902, was a common carrier carrying passengers from Norfolk to Meadow Grove, and that the station at Norfolk where such passengers are received is commonly known as Norfolk Junction.
“2. That on the 28th day of December, 1902, the plaintiff purchased from the defendant at Norfolk, Nebraska, a ticket entitling him to a safe passage on the defendant’s train from Norfolk to Meadow Grove, and insuring him against injury while a passenger on said train and while a passenger on the defendant’s premises at Norfolk; that while plaintiff was standing on the defendant’s station platform at Norfolk on the evening of said day, and after he had purchased and paid the defendant, for said ticket, and while he was a passenger on the defendant’s promises, and while he was waiting for the arrival of the defendant’s*776 train which was to carry him from Norfolk to Meadow Grove, he Aims struck by an engine and cars run and operated upon the defendant’s railroad track at Norfolk, and Avhich train Avas under the direction and Avith the knoAvledg-e, approval and consent of the defendant. That by being struck by said engine and said cars the plaintiff Aims throAvn down, mangled, bruised and injured, and sustained the following injuries.”
It will be observed that the petition does not allege that any act was negligently done. If the action had been brought against an individual for damages occasioned by his negligence AA'hich resulted in the injuries complained of, it Avould be essential to allege that the injuries Avere occasioned by the negligence of the defendant, either by setting forth facts AA'hich Avould constitute negligence as a matter of law, or' by pleading generally that the defendant was negligent in performing or omitting to perform the acts complained of as constituting negligence. Omaha & R. V. R. Co. v. Wright, 49 Neb. 456. The allegations of the petition under consideration do not set forth that the act by AA'hich the plaintiff Avas injured was done negligently, and no fact is alleged AA'hich constitutes negligence1 as a matter of laAv under the common law, nor by statute unless the plaintiff was one of a class embraced under the provisions of section 3, article I, chapter 72, Compiled Statutes, 1903 (Annotated Statutes, 10039), relating to injuries to persons AA'hile being transported over railroads in this state. Since the petition was assailed at every stage in the progress of the cause, the pleader will be presumed to have stated his case as fairly to himself as the facts AA'ill Avarrant, and the familiar rule applied that the allegations in the petition and all presumptions arising therefrom will be construed against the pleader, and no presumptions in his favor indulged in. Having these rules in mind, therefore, it will be observed that the only allegations of the petition AA'hich sIioav the manner, in AA'hich the plaintiff AA'as injured are that, AA'hile plaintiff Avas standing on defendant’s station platform at
The plaintiff contends that the petition states a good cause of action upon three grounds: First, it states a breach of contract to safely convey the plaintiff from the point where he purchased the ticket to the point of destination; second, it states a cause of action under the statute hereinbefore alluded to; third, it states a cause of action on the ground of negligence, by stating facts which as a matter of law constitute negligence on the part of the defendant.
“There is a class of cases arising out of contract, where, by reason of the contract, the law raise',s a duty, for the breach of which duty an action on the case may be maintained ; and in such cases the contract, being the basis and gravamen of the suit, must be alleged and proved. * * * But when the gist of the action is a breach of duty and not of contract, and the contract is not alleged as the cause of action, and when, from the facts alleged, the law raises the duty by reason of the calling of the defendant — as in case of innkeepers and common carriers — and the breach of duty is solely counted upon, the rules applying to actions ex delicto determine the rights of the parties.” Frink v. Potter, 17 Ill. 106. See also Wright v. Geer, 6 Vt. 151; Bank of Orange v. Brown, 3 Wend. (N. Y.) 158; M’Call v. Forsyth, 4 W. & S. (Pa.) 179.
We conclude therefore that the gist of this action under the allegations of the petition is a breach of duty arising from the obligations imposed by law upon common carr riers, and that it is not an action upon the contract of carriage.
We have already considered the third ground upon which the plaintiff asserts the petition is sufficient, and decided that his position as to this is unsound. There remains, however, to be considered the contention that the petition states a cause of action under section 3, article I, chapter 72, Compiled Statutes, 1903 (Annotated
Defendant argues that the common law recognized two classes of passengers, those being transported and those' not being transported, and established different degrees of care, and in case of injury different rules as to the bur
As to the first proposition there1 is no difference of opinion worthy of mention. The doctrine that the carrier must exercise the highest degree of care is accepted as the settled rule in nearly all jurisdictions. The reason for this rule1 is well stated by the supreme court of the United States in an early case, Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) *468, decided in 1852: “When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence, in such cases, may well deserve the epithet of ‘gross.’ ” “Any relaxation of the stringent policy and principles of the law affecting such cases, would be highly detrimental to public safety.”
As to the second proposition, however, the authorities are not uniform, one class of cases following the doctrine laid down in 2 Shearman and Kedfield,. Law of Negligence (5th ed.), sec. 501, as follows:
“Alien Ordinary Care Only Required. The requirement of extraordinary care, being founded upon the special risk of human life involved in the business of carrying passengers, is not to be extended to incidents of the business which do not involve such risk, and in which the carrier stands in the same relation to the passenger as do*781 oilier business men from Avhom such peculiar care is not required. Hence, AA'liile a carrier must use ordinary care to malee the means of approach and departure and other accessories safe for the use of passengers, he is not required to use any higher degree of care AAÚth reference to these things. Therefore, AArith regard to platforms, stairs, Avaiting-rooms in a station, the ground surrounding it and other premises of a railroad company, its obligation to passengers is only one of ordinary care, in common Avith that of all other occupants of land or buildings, inviting persons to enter thereon, for compensation; since passengers are no more endangered, in such places, than they are in similar premises not belonging to a railroad company.” Pennsylvania R. Co. v. Marion, 104 Ind. 239; Kelly v. Manhattan R. Co., 112 N. Y. 443; Lafflin v. Buffalo & S. R. Co., 106 N. Y. 136; Falls v. San Francisco & N. P. R, Co., 97 Cal. 114; Moreland v. Boston & P. R. Co., 141 Mass. 31; Jordan v. New York, N. H. & H. R. Co., 165 Mass. 346; Stokes v. Suffolk & C. R. Co., 107 N. Car. 178; McDonald r. Chicago & N. W. R. Co., 26 Ia. 124; Southern R. Co. v. Reeves, 116 Ga. 743.
The other class of cases hold in the main that the carrier’s duty to a passenger is the exercise of the highest care at all times that the relation subsists, from the time that a person becomes a passenger until he ceases to be such, his journey is completed and lie1 has left the carrier’s premises. A ícav of the cases holding the carrier to the. same degree of care with reference to a person Avho has become a passenger, from the time he assumes such relation until Avithin a reasonable time after his alighting from the train and departure from the platform or station at his destination, are the following: Gaynor v. Old Colony & N. R. Co., 100 Mass. 208, 97 Am. Dec. 96; Grand Rapids & I. R. Co. v. Martin, 41 Mich. 667; Knight v. Porland S. & P. R. Co., 56 Me. 234; Warren v. Fitchburg R. Co., 8 Allen (Mass.), 227; Dodge v. Boston & B. Steamship Co., 148 Mass. 207; Weston v. New York Elerated R. Co., 73 N. Y. 595; Norfolk & W. R. Co. v. Galli
The .question as to which of these two rules governs the, liability of railroads for injuries to passengers upon their station platforms or premises in this state, as presented by the pleading in this case, depends upon the proper construction to be given to the phrase, “a passenger while being transported over its road.” If the intention of the. legislature was that this phrase should be construed literally, then a passenger not actually in process of being moved or carried from one point to another would not be within the protection of the statute. This court, however, has recently had occasion to construe this phrase to some extent. In the case of the Chicago, R. I. & P. R. Co. r. Sattler, 64 Neb. 636, 646, this provision is discussed with reference to the facts in that case, where a passenger left the train on his own volition for a purpose not incident to the journey. In that case it is said:
“We are agreed that the words ‘while 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 cannot, however, agree with the 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 over 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*783 to furnish, and which • it invites him to partake of, is no less stringent than to furnish him safe passage on its cars. While seated in tin; dining room of the company he is under its control, and must conform to its rules, as fully as while on the train; and, while 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 while seated in the car, proceeding on his journey. Yde believe and hold that it was intended to include in the svords ‘while 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 for any necessary purpose incident to their journey, such as a change of cars, or to procure refreshments at any point where the same is furnished by the company, and where an express or implied invitation is extended to the passengers to leave the car for that purpose.” The phrase then is not in all cases to lx; literally construed.
If a person who has left the train for any necessary purpose incident to the journey, such as to procure refreshments at a point where the same is furnished by the company, is, while upon the platform on his way to the eating honse and during his return to the train, “a passenger being transported” within the contemplation of the statute, is not the intending passenger who has purchased his ticket and who may walk side by side with him upon the station platform'on his way to the same coach equally a passenger being transported? lie is upon the company’s premises furnished to him for the purpose of procuring his ticket and giving him access to the train, and has begun his journey. Should an injury occur to both, can one rule be applied to an action brought by the passenger who was returning from the dining room to the train, and another rule to the passenger who was walking with him from the waiting room or ticket office to the same train? Further than this, how can a reasonable distinction be drawn between the duty of the railroad company to the
It is argued in the defendant's brief that the legislature, in adopting the language of the courts when defining the class of passenger's entitled to the highest degree; of care, adopted tin1 same meaning and construction as was given to that language by those courts. But as we have seen the courts are not uniform in their holdings in this respect, and from the whole course; of legislation and judicial construction within this state we believe that the legislature, by the use of the language quoted in the section under cemsideratiem, intemded no more and no less’ than that every individual to whom the carrier owe;el the care due a passenger shemlel, as long as the relation existed, be Avithin its terms, but that Avlien the relation ceases, either by voluntary disregard of reciprocal rights and duties of the passenger as in the Battler case, or by disregard of the reasonable rules and regulations of the carrier on the part of the passenger, or by his criminal negligence, the carrier becomes absolved upon his part from the presumption of negligence created by the statute; or, to place the idea in other words, that from the time the intending passenger places himself-under the charge of the carrier as he begins his journey until he is afforded the opportunity to leave the premises of the carrier at its termination, he is “a passenger being transported,” unless by some act not attributable to the carrier the relation ceases.
When does the relation of carrier and passenger begin? With but minor differences depending upon the circumstances in each particular case, the courts are generally agreed upon this point. The general rule seems to be that Avhere a person intending to take passage upon a train goes into a station Avithin a reasonable time prior to the hour of departure of the train, in a proper manner, and there;, either by the purchase o-f a ticket or in some1 other manner, indicates? to the carrier his intention to take
“One becomes a passenger on a railroad when he puts himself into the care of the railroad company to be transported under a contract, and is received and accepted as a passenger by the company. There is hardly ever any formal act of delivery of one’s person into the care of the carrier, or of acceptance by the carrier of one who presents himself for transportation, and so the existence of the relation of passenger and carrier is commonly to be implied from circumstances. These circumstances must be such as to warrant an implication that the one has offered himself to be carried on a trip about to be made, and that the other has accepted his offer, and has received him to be properly cared for until the trip is begun, and then to be carried over the railroad. A railroad company holds itself out as ready to receive as passengers all persons who present themselves in a proper condition, and in a proper manner, at a proper place to be carried. It invites everybody to come who is Avilling to be governed by its rules and regulations. In a case like this, the question is whether the person has presented himself in readiness to be canned, under such circumstances in reference*786 to time, place, manner, and condition that the railroad company must be deemed to have accepted him as a passenger.”
The rule stated in this case has been approved and cited many times since its announcement, both by text writers and by courts, and we believe the doctrine stated to be sound. If the plaintiff has not brought himself Avithin this rule he was not a passenger, and never became such in the eye of the laAV, and unless by the allegations of his petition he is Avithin the class his petition will not state a cause of action. It will be observed that the petition contains no allegation in regard to the time when the train upon which he was intending to take passage Avas due to depart from Norfolk. It alleges the purchase of a ticket, but that alone does not make a person a passenger.
In Illinois C. R. Co. v. O’Keefe, 168 Ill. 115, 39 L. R. A. 149, it is said:
“One does not become a passenger until he has put himself in charge of the carrier and has been expressly or impliedly received as such by the carrier. * * * The purchase of a ticket does not make one a passenger unless he comes under the charge of the carrier and is accepted for carriage by virtue of it.”
This case is reported in 61 Am. St. Rep. 68, with a monographic note upon the general subject of who are passengers and when they become such.
In Illinois C. R. Co. v. Laloge, 113 Ky. 896, 62 L. R. A. 105, the facts were that a passenger went to the railroad station five hours before her train was due, and Avas assaulted. A statute of Kentucky requires the ticket office and Availing room to be opened, lighted and AArarmed 30 minutes before train time. The court held that it Avas the duty of the carrier to provide such facilities for intending passengers within a reasonable time before the departure of its trains. That 30 minutes Avas a reasonable time, and that, by coming to the station five hours before the schedule time for the departure of the train, the. plaintiff did not become a passenger. That there Avas no obliga
In Phillips v. Southern R. Co., 124 N. Car. 123, 45 L. R. A. 163, the circumstances were that a person went to the railroad station five hours before train time. The carrier had a rule to close its waiting room until 30 minutes before the time of departure of each train. The night was cold, the plaintiff was ejected, and was injured by the contraction of a severe cold and subsequent illness. In the opinion the court say:
“A party coming to the railroad station with the intention of taking the defendant’s next train becomes, in contemplation of law, a passenger on defendant’s road, provided that his coming is within a reasonable time before the time for departure of said train. To constitute him such passenger it is not necessary that he should have purchased his ticket, as seems to have been considered by his Honor. 1 Fetter, Carriers of Passengers, sec. 288. But the purchase of the ticket would probably be considered the highest evidence of his intention. But still, it is his coming to the station within a reasonable time before, with the intention to take the next train, that creates the relation of passenger and carrier.”
Another instructive case is Louisville & N. R. Co. v. Reynolds, 71 S. W. (Ky.) 516. The plaintiff had gone to the station to take a train at 11 P. M. His train was late, though he testified he did not know this. While he was standing on the platform about 15 feet from the track, he was struck by a piece of coal which fell from a train which Avas passing rapidly by with loaded coal cars, and Avas severely injured. The court said:
“Appellee was * * * rightfully on the platform, and sustained the relation of passenger to the appellant for he*788 Avas there to take flu; train, and, the Availing room being closed, had a right to be on the platform. It Avas train time, and so he had a right to come to the station at this time to take the train; and if it be true, that he was told that the train Aims late, being at tin1 station lie had a right to remain there, and Ava.it for it.”
With these aIoavs we concur.
A railroad company is not bound to furnish a place1 of entertainment for persons avIio may intend at some future1 time to become passengers oven its road, and such a person who resorts to its station, or aaüio stands upon its platform exposing himself to such dangers and risks as may naturally and obviously occur at such a place by reason of rapidly moving trains, SAvitching of freight cars, or engines passing by or by the moving of articles of freight, assumes and takes upon himself the risk of injury, and i-e entitled to the carrier’s protection in no greater degree1 than any other licensee. Ordinary care under all the circumstances of the; time and place is all ho is entitled to. The fact that he may have procured a. ticket is immaterial.
The relation of carrier and passenger does not begin until Avithin a reasonable time prior to the time fixed for the departure of the train the prospective passenger intends to take, and not until he has in some manner, either expressly or impliedly, placed himself Avithin the carrier's charge. If, Avithin a. reasonable time before the departure of the train he intends to take, he goes to the place; provided for the reception of intending passengers, and there places himself actually or impliedly Avithin the carrier’s care, then, and not until then, the law places around him the protection vouchsafed to passengers, and charges the; carrier with the highest degree of care for his safety. To hold otherAvise Avould be to place a most unjust and onerous burden upon the carrier. In this day and age of “limited trains,” “lightning expresses,” “'’yers,” “cannon balls,” as they are sometimes fancifully designated, many stations and platforms upon main lines of railroads are passed by such trains at rates of speed as high as 60 miles
“It is not alleged that it was the intent of the plaintiff to go upon the then next regular train, or that his ticket was for such train. For aught that is alleged his ticket may have been for, and his intent to go upon, one of those trains called excursion trains that are advertised to run at some particular time, and for which tickets are sold many days in advance of the time of departure. In this respective think the replication is defective; the plaintiff*790 should have alleged that at the time, when, etc., he was at the station awaiting the departure of a train that was expected soon to leave, and on which he intended to go. The replication should show that the plaintiff was there intending to go upon a train that was expected to leave within such a short period of time thereafter, that, in view of the rule as before laid down, he would have the right to remain at the station until its departure. This replication, we think, does not show such a state of facts as are necessary to vest such right in the plaintiff, and therefore it is insufficient.”
So far then from having brought himself within the class of “a passenger being transported” as the statute prescribes, plaintiff in this case has not even pleaded facts sufficient to show that he Avas a passenger under the non-sta.tnte law prescribing the qualifications of the class of persons embraced under that general designation. For these reasons, Ave are of the opinion that the petition does not state a cause of action under the statute, and that the demurrer and objections to the introduction of evidence should have been sustained.
A bill of exceptions Avas settled and allowed in the case, but, since the sole question presented is the sufficiency of the petition, we have not examined the same.
We recommend that the judgment of the district court be reversed and cause remanded for further proceedings.
For the reasons stated in the foregoing-opinion, the judgment of the district court is reversed and the cause is remanded for further proceedings.
Rea^ersed.
Rehearing
The folloAving opinion on rehearing was filed March 8, 1906. Forme,r opinion modified:
A rehearing of this case was granted mainly upon the question of Avhether the proposition laid doAvn in the sixth paragraph of the syllabus of the former opinion, ante, p. 773, is a correct statement of the law. This praagraph is as folloAi^s: “Prom the time, a passenger, as defined herein, places himself under the charge of the carrier as he begins his journey until he is afforded the opportunity to leave the premises of the carrier at its termination, he is ‘a passenger being transported/ unless by some act not attributable to the carrier the relation ceases.” No attack has been made upon the principles laid down in the former opinion as to when the relation of carrier and passenger begins, nor is the applicability of the rule questioned requiring the highest degree of care to be exercised by the carrier for the safety of a passenger, but it is earnestly contended that the proposition above quoted Avas unnecessary to a decision of the case and is unsound as a statement of the law. In Chicago, R. I. & P. R. Co. v. Sattler, 64 Neb. 636, it is said:
“We believe and hold that it was intended to include in the Avords Svliile being transported over its road7 all 'passengers actually on the train, Avhether the same is in motion or standing on any part of the road: and it further includes those passengers leaving the train for any necessary purpose incident to their journey, such as a change of cars, or to procure refreshments at any point Avliere the same is furnished by the company, and where an express or implied invitation is extended to the passengers to leave the car for that purpose.77
In our former opinion it Avas asked Avhether one rule could'be applied to an action brought by a passenger returning from the dining room to the train, and another rule to a passenger walking Avith him from the waiting room or ticket office to the same train, and it was upon this statement in the Battler case that the proposition herein attacked Avas founded. After further argument,
Opinion modified.
