53 Kan. 112 | Kan. | 1894
The opinion of the court was delivered by
This action was brought by Nevada Berry to recover damages for personal injuries sustained by her in getting off of one of the defendant’s freight trains. The facts of the case, as shown by the plaintiff’s own testimony, are, that she purchased a ticket at Fort Scott to Arcadia, and took passage on a freight train which left Fort Scott at 9 o’clock in the evening, and arrived at Arcadia at 10:20. The train was a long one) consisting of 31 cars and a caboose. . The train stopped so that the engine was a little way from the depot,
“The brakeman said, ‘All right; do you want to get off?’ I said, ‘Yes.’ He says, ‘Well, step to the door/ I says, ‘You will help me off in the yards, won’t you?’ and he says, ‘I ’ll put on the brakes.’ He says, ‘Can you make it? I will hold a lantern for you.’ He turned to set the brake. I turned to see whether he was going to assist me, and he says, ‘Step down and hurry up;’ and at the same time he turned a brake as if to set it and kicked it off, and the jumping forward of the caboose threw me off suddenly.”
The evidence shows that the plaintiff’s knee was badly bruised, and her side, shoulder and arm hurt. There is no dispute in the evidence as to the fact that the plaintiff had a ticket, but as to what took place between her and the conductor with reference to it, the evidence is conflicting. She herself testified that the conductor did not ask her for her ticket, •and for that reason she did not give it to him. The conductor and two other witnesses stated that he asked her for her ticket, and she answered, either that she did not have any ticket, or, that she did n’t have to have any ticket. She in fact neither delivered her ticket nor paid her fare. She testified that she was in the habit of riding on freight trains and knew that they did not stop at the platforms. She states that, while the caboose was stopping in the cut, she was not told by any train hand that she would have to get off there. On the other hand, the brakeman and other passengers testified that the brakeman told them that they would have to get off there, and that the plaintiff said she could jump off from the moving train as it pulled up towards the depot.
Counsel for the plaintiff in error argue at some length the proposition that the weight of the evidence is so overwhelmingly in its favor, that this court should reverse the judgment and grant a new trial, notwithstanding the fact that there is
We do not deem it necessary to cite the very numerous cases in which it has been held that, where there is competent evidence fairly supporting every material fact necessary to the plaintiff’s cause of action, which the jury has accepted as true, and where their verdict has been approved by the trial court, this court will not reverse the judgment and grant a new trial because these is an apparent preponderance, or even great preponderance, of evidence against the verdict. It is not for this court to try disputed questions of fact, in eases brought here for review.
Complaint is also made of the instructions, and first of the following, which was given at the request of plaintiff’s counsel:
“If the defendant company, through its trainmen (servants), undertook to carry this plaintiff as a passenger to the town of Arcadia, it was their duty then to stop at the town of Arcadia long enough for her to have a reasonable time to alight from the train, and, of course, that is not stopping somewhere else away from the town of Arcadia.”
The last portion of this instruction is criticised as being unfair and misleading, and, in view of the facts disclosed by the testimony, we think it is somewhat so. There seems to be no question that the place where the train stopped was reasonably near the station at Arcadia, and was near the point where such trains usually stopped. Were this the only question, however, we should be loth to reverse the case on account of the giving of this instruction.
A more serious difficulty arises on the general instructions
“ If plaintiff purchased a ticket on the day mentioned from Fort Scott to Arcadia, and was ready and willing, on demand of the conductor, to deliver it to him, and he permitted her to ride, it makes no difference whether he took up said ticket or not, or, if she had no ticket and offered him none, and he permitted and consented for her to ride from Fort Scott to Arcadia without ordering her off the train, she would be entitled to the rights of a regular passenger.”
In the case of Railroad Co. v. Wheeler, 35 Kas. 185, it was held that a person on a construction train with the consent of the conductor was not a trespasser, and that the railroad company was.bound to exercise ordinary care for his safety, but that it would not be bound to exercise that extraordinary care due to the passengers carried for hire. It will be observed that, in the last clause of the instruction quoted, the jury are told that, if the plaintiff rode in the car with the consent of the conductor, she would be entitled to the rights of a regular passenger. By this instruction, the court, in effect, withdrew from the consideration of the jury the conflicting testimony as to what took place between the plaintiff and the conductor with reference to a ticket. They were told, in effect, that the plaintiff was a regular passenger, whether her statement was true, or that of the conductor and other witnesses. Counsel for defendant in error, recognizing the force of this criticism, say in their brief:
“In view of the fact that the court did not instruct the jury upon the degree of care the passenger is entitled to from the hands of the railroad company when he is a passenger, and the court did not define the difference between degrees of care due from a railroad company or common carrier to a regular passenger, and when he is not a regular passenger, nor yet a trespasser, and who is permitted to ride upon the train without paying fare, we can see no reason for contending or supposing that plaintiff in error was prejudiced by the instructions complained of. The court simply used in every instance in its instructions the word ‘negligence’ without qualifying it by the words ‘slight/ ‘ordinary/ or ‘gross/ and*119 where that is done, this court has held that ordinary negligence is meant.”
We think this argument sound, if supported by the facts; but unfortunately the instructions also contain this language:
“A railroad carrying passengers is bound to use more than ordinary care in avoiding accident and injury to such passengers, and it would be liable for slight negligence when it causes or directly and materially contributes to such injury without the fault of the person injured.”
This is a statement of the measure of care due to regular passengers. There is nothing in the instructions to qualify these declarations as to the law, and, in order to affirm this judgment, we must hold that the same measure of extreme care which a railroad company is bound to exercise in favor of passengers transported for hire is due to one who rides on its train by the consent of a conductor without the payment of any compensation to the company for its services. To so hold would be not only to overrule the case of Railroad Co. v. Wheeler, above cited, but to establish a rule which does not seem to us founded in justice or supported by sound reason. The fact that the plaintiff’s own evidence is perhaps ample to show a want of ordinary care does not help the matter, for, under the instructions of the court, the jury were not required to determine whether the defendant was merely lacking in ordinary prudence, but were told, in effect, that slight negligence was sufficient to warrant a recovery. Under the instructions, the jury could hardly do otherwise than return a verdict for the plaintiff, even though they might not credit her statements as to all that transpired rather than those of other witnesses in the case. It necessarily follows that the judgment must be reversed, and a new trial ordered.