111 N.W. 609 | N.D. | 1907
Plaintiff brought this action to recover damages for alleged negligence of defendant resulting in injuries to her while
Appellant assigns as error the ruling of the court in directing such verdict. The evidence is incorporated in a .statement of case duly settled, from which we are required to say, according to the well-settled rule in this court, “whether there is any competent evidence in the record reasonably tending to sustain the plaintiff’s cause of action alleged in her complaint,” and in determining this question we are to disregard all conflicts in the evidence and construe the same most favorably to the plaintiff, and, “if the evidence is such that intelligent men may fairly differ in their conclusions thereon upon any of the essential facts of the case,” it is our duty to reverse the judgment and order a new trial. Cameron v. G. N. Ry. Co., 8 N. D. 124, 77 N. W. 1016; Vickery v. Burton, 6 N. D. 253, 69 N. W. 193; McRea v. Bank, 6 N. D. 353, 70 N. W. 813; Pirie et al. v. Gillitt et al., 2 N. D. 255, 50 N. W. 710; Zink v. Lahart, 16 N. D. 56, 110 N. W. 931. Plaintiff in her complaint, after alleging the fact that the defendant is a railroad company and engaged as a common carrier of passengers between Jamestown and Leeds, and alleging that she was a passenger on defendant’s train on April 6, 1904, bound for Sheyenne, states her cause of action as follows: “That on said trip and on said date she conducted herself in due care and caution as a railroad passenger, but 1116 defendant, by its negligence and by the negligence of its employes, the conductor and engineer of said train, committed gross negligence in the performance of their duties in carrying this plaintiff as a passenger, to wit: that said train stopped at the station of Sheyenne that date to permit this plaintiff and other passengers to alight from said train, the said station of Sheyenne being the point of their destination. This plaintiff alleges that upon the arrival at the station of Sheyenne aforesaid, the train was stopped opposite the station house, and adjacent to the platform between the station house and the railway track, and the announcement was made by the servants in charge of said train that the station, Sheyenne, was at hand; the train being at a standstill. At that point this plaintiff attempted to alight, using all due care in her movements. While stepping down the steps of the car platform to reach the station platform, the train was started. As the plain
Counsel for respondent earnestly contend, however, that there is no evidence from which a Jury could find that defendant was guilty of the negligent act charged; and hence they insist that the action of the trial court in directing a verdict must'be sustained. We think counsel are mistaken in their contention that plaintiff alleged one cause of action or ground of negligence, and sought to prove another. As before stated, the particular act of negligence complained of consists in starting the train while plaintiff was in the act of stepping 'therefrom, but counsel seem to think .that plaintiff’s proof at the trial, if it proved anything, merely tended to show that defend
Henry Flaskrood, a witness for the .plaintiff, testified: “Saw Miss Hall fall on the platform. When the train stopped, I was standing on the platform. Q. What did you see on the .platform? A. Three ladies were standing in the doorway, and a gentleman standing on the foot of the steps, with one hand on each side of the coach. Q. What happened next? They were standing there talking, and Miss Hall couldn’t get through and finally she kind of squeezed herself through, and got between the car and the ladies, and just at the time she was on the second step, and was going to get off, the car moved. I couldn’t say if the engine bell rang. She fell about four feet away from the car. It looked as though she struck hard. It was not running very fast when she got off, but still it was moving. The train began to move as she was about on the second step of the platform. There are two or three steps to the platform, I think, and she was on the second step from the bottom. At that time I saw a man standing on the last step, with a hand on each rail. He either moved or dropped off to let her get by, or so she could get by. If he had held 'his hands there, she would have fallen against him. He either raised or dropped his hands. She then fell off the second step from the bottom and fell onto, the platform.”
Plaintiff being recalled, testified: “It was the starting of the train that threw me. The train was not moving when I got down the steps to get off, and when it started it threw me.”
There was evidence tending to show that no warning was given before starting the train, and we are unwilling to say that the jury might not have inferred from all the circumstances that defendant’s servants in charge of the train should have known, if they had been exercising due care, that plaintiff was in the act of alighting from the car at the time the train was started.
While the testimony nowhere expressly shows that the train was started with “great violence and shock” as alleged, or in any manner other than the usual manner, still, we think, from the whole testimony, the jury as reasonable and intelligent men might have fairly drawn the conclusion therefrom on account of the way in which the accident occurred, and all the circumstances- appearing from 'the evidence, that the train was started in a sudden and reckless manner, and without warning, in disregard of the duty which defendant owed looking to the safety of its passengers. The defendant was in duty bound to afford plaintiff a reasonable opportunity to alight from its train in safety, and if, as alleged in the complaint, it failed to do so — in other words, if by reason of the carelessness of its servants in suddenly starting its train without warning while plaintiff was in the act of stepping therefrom, she, without carelessness on her part, fell and was injured — defendant would be liable, provided its servants in charge of the train knew or ought to have known, in the exercise of due care, that plaintiff was thus in the act of alighting therefrom. As stated by Chief Justice Gilfillan in Keller v. Railway Co., 27 Minn. 178, 6 N. W. 486: “It would certainly not be permissible ror them to be so reckless of the lives and limbs of pas
Upon the question of plaintiff’s contributory negligence, we are agreed that it was for the jury to say, under all the evidence in the case, whether or not plaintiff, at the time of the injury in question, was in the exercise of such care as a reasonably prudent person would be expected to exercise under the like circumstances. Cameron v. G. N. Ry. Co., 8 N. D. 124, 77 N. W. 1016; Richmond & D. R. Co. v. Powers, 149 U. S. 42, 13 Sup. Ct. 748, 37 L. Ed. 642; 5 Am. & Eng. Enc. Law (2d Ed) 652, and cases cited. Hence it would have been error to have directed a verdict upon the ground of plaintiff’s contributory negligence.
It follows that the judgment appealed from must be reversed, and a new trial ordered.