149 F. 658 | 5th Cir. | 1906
Lead Opinion
(after stating the facts). On a railway passenger train the announcement of the next station, although made on near approach to said station, is not an invitation to a passenger to leave his seat and attempt to alight before the train actually stops. This proposition is supported by Adams’ Adm’r v. Louisville, etc., R. Co., 82 Ky. 607; Railroad Co. v. Asbell, 23 Pa. 147, 62 Am. Dec. 323; Jeffersonville, etc., R. v. Hendricks’ Adm’r, 26 Ind 228; England v. Boston, etc., R. Co., 153 Mass. 490, 27 N. E. 1; Lewis v. London, etc., R. Co., L. R. 9 Q. B. 66; Bridges v. North London, etc., R. Co., L. R. 6 Q. B. 377.
According to Warren’s evidence, corroborated by his main witness, his brother-in-law, Kelly, on the announcement of the train porter that the next station was Oxford, Warren, for the purpose of resuming custody of the negro Mctílon and of getting off and away quickly, left his seat in the smoking compartment while the train was in motion, and went forward through the colored compartment to the front door of the car, which he opened, and stood there waiting evidently for the train to slow down, with his right foot on the door sill, his left foot on the platform, and his right hand on the door facing, from which position he was knocked or pushed, so that he fell off the car while the train was in rapid motion, and thereby was injured In thus going to the front of the car and taking the position described while the train was in rapid motion Warren was guilty of negligence, which unquestionably contributed to his subsequent injury. See Alabama R. Co. v. Hawk, 72 Ala. 112, 47 Am. Rep. 403; Blodgett v. Barfelett,
We conclude that on the evidence of the plaintiff and his witnesses the peremptory instruction to find for the defendant on the issue of contributory negligence should have been given. If the concluding statement in the bill of exceptions means' that the jury was unduly influenced in their verdict by their feelings and sympathies for the plaintiff, Warren, and his miserable condition, the trial judge should have granted a new trial on that ground. As, however, the statement of the judge does not specifically find the undue influence and prejudice as a fact, and as he refused a motion for a new trial based on this and other grounds, we must construe the bill of exceptions to mean that, while the facts were as stated, the jury was not unduly influenced thereby. • ,
The judgment of the Circuit Court is reversed, and the cause is remanded, with instructions to set aside the verdict and grant a new trial.
Dissenting Opinion
(dissenting). I respectfully dissent from the opinion just read.
The record shows that on February 3, 1904j James Warren was a passenger on one oJ the passenger trains of the plaintiff in error. As the train was approaching the station at Oxford, the porter announced the fact by calling, “Oxford! Oxford!” Warren arose from his seat, went to the front door of the coach, opened it, and while standing with one foot on the platform just outside the door, and one foot in the car or on the door sill, holding the door facing with his right hand,
Warren’s account of the accident has been given in the statement of the cpse by the court. His version is corroborated by J. H. Kelly, who, after describing Warren’s position in the door “with his hand placed on the door facing,” said that the porter “came rushing through with his lantern, ran against Warren, and knocked him out of the door and clean off to the ground.” The plaintiff in error, being a common carrier, was bound, so far as practicable, to protect its passen-, gers, while it was carrying them, from violence committed even by strangers; and there surely can-be no doubt that it undertakes absolutely to protect them against the violence and misconduct of its own servants engaged at the time in executing the contract. Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 588, 591, 43 Am. Rep. 185, and cases there cited; Dwinelle v. N. Y. Central & H. R. R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 221, 17 Am. St. Rep. 611.
It is said in the opinion of the court that “on a railway passenger train the announcement of the next station is not an invitation to a passenger to leave his seat and attempt to alight before the train actually stops.” I cannot see how the cases cited to sustain this statement are applicable, because the evidence on which Warren submitted his case to the jury was to the effect that the railway porter had knocked him off the train when he was standing holding to the door facing. Neither of the two witnesses on which he relied to show the negligence or violence of the porter testified that he left his seat and made “an attempt to alight before the train actually stops.” It is stated in the opinion of the majority that, “on the whole evidence, direct and circumstantial, the jurj* would have been fully warranted in finding that the train porter had nothing whatever to do with pushing or knocking Warren from the car.” Conceding that to he true — while I take a different view of the evidence — the court has not the right, I think, to take a case from the jury because there is evidence which would warrant a verdict for the defendant. The question of the credibility of Warren and Kelly was for the jury.
The court below submitted the question of contributory negligence to the jury. The opinion just read is to the effect that Warren, on the evidence quoted, was guilty of contributory negligence as matter of law, for it is decided that the trial court should have- instructed a verdict for the defendant. In Washington & Georgetown R. R. Co. v. Harmon’s Adm’r, 147 U. S. 571, 580, 13 Sup. Ct. 557, 37 L. Ed. 284, the court, commenting on a case where the person injured was standing on the step of the car, observed:
■ “There was a conflict of evidence as to the condition of the platform, the posh ion of the plaintiff, and. the circumstances surrounding the accident. It is conceded that to he upon the platform, or even upon the step, might not*666 be negligence In all cases, and certainly not negligence in laic, but It Is Insisted that the plaintiff was voluntarily riding upon,the step of the car when moving, without any means of support, and that this, in the absence of justification or excuse, would necessarily be negligence.” (The italics are mine.)
I cannot concur in the view that it is negligence per se for a passenger to arise from his seat when the porter calls the station where he is to alight, and to walk to the door of the car and take the position described in the evidence. Under the circumstances, it could not be deemed .negligence per se “if he stood on the steps of the car.” Brashear v. Houston Central A. & N. R. Co., 47 La. Ann. 735, 17 South. 260, 28 L. R. A. 811, 49 Am. St. Rep. 382; Watkins v. Bham Ry. & E. Co., 120 Ala. 147, 152, 24 South. 392, 43 L. R. A. 297; Pa. R. Co. v. Reed, 60 Fed. 694, 9 C. C. A. 219; Doss v. M. K. & T. R. R. Co., 59 Mo. 27, 38, 21 Am. Rep. 371. If it is “certainly not negligence in law” to stand on the steps, can it be negligence in law to stand in the door, holding the door facing with the right hand, when the station which is the end of the passenger’s journey has been called, and the car is about to stop ?
If it were true that Warren was guilty of negligence in taking the position he assumed, it would not be a defense to this action if the conduct of the company’s employé, while engaged in the master’s service, was intentional and willful. Contributory negligence is not a defense against a willful injury. Beach on Cont. Negl. (3d Ed.) §§ 64, 65; 7 Am. & Eng. Ency. of Law, p. 443. From the violence of the assault which the porter made on Warren, as well as from other facts and circumstances shown in the evidence, the jury might reasonably have concluded that the assault on him was intentional and willful, and in that event the defense of contributory negligence could not have prevailed. In either aspect of the case, the learned trial judge, in my opinion, ruled correctly in refusing to direct a verdict for the defendant.
If the evidence of Warren and Kelly was true, the jury was reasonably justified in finding a verdict for the plaintiff. Taking the case from the jury, therefore, cannot be reconciled with the principles announced in Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485, nor with the decisions of this court. Nelson v. N. O. & N. E. R. Co., 100 Fed. 731, 40 C. C. A. 673; Texas & Pacific Ry. Co. v. Carlin, 111 Fed. 777, 49 C. C. A. 605; Southern Pacific Co. v. Covey, 109 Fed. 416, 48 C. C. A. 460; Mexican Central Ry. Co. v. Townsend, 114 Fed. 737, 52 C. C. A. 369. In Jones v. E. T., V. & G. R. R. Co., 128 U. S. 443, 9 Sup. Ct. 118, 32 L. Ed. 478, Mr. Justice Miller made an observation, .evoked, I think, by the fact that trial courts have been too quick to take cases involving personal injuries from the juries:
“We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others.”
A similar admonition is found in a single sentence of a recent act of Congress — .“All questions of negligence and contributory negligence shall be for the jury.” Act June 11, 1906, c. 3073, § 2, 34 Stat.
