60 Kan. 590 | Kan. | 1899
This was an action brought by Bridget A. Cusick, the defendant in error,-against the Leavenworth Electric Railroad Company, the plaintiff in error, to recover damages for injuries negligently inflicted upon her as a passenger on one of the defendant’s cars. The case is brought to us upon the evidence, under a claim that such evidence fails to show negligence upon the part of the company and does show negligence upon the part of the defendant in error. The claim of negligence made in the petition was that, while the plaintiff was descending the steps of the car for the purpose of leaving it, the conductor negligently and without notice to her signaled the motor-man of the car to go ahead, which signal was obeyed, the car started, and' the plaintiff in consequence thrown from the car steps to the street. The evidence showed that plaintiff and her child were passengers on a south-bound car on Third street in the city of Leavenworth. She told the conductor, one Flora, to let her off at Pine street. As the car approached Pine street it was quite full of passengers. The conductor desired to occupy his time in collecting fares, and in order to enable himself to do so asked one Buckley to stop the car at Pine street and let the plaintiff and her child off. This Mr. Buckley promised to do. Buckley was a conductor on another car belonging to the company, and at the time in question was off duty, riding on Conductor Flora’s car. It was the habit among conductors to assist one another in such cases. Conductor Flora testified : “Ques. But as far as the management of the car was concerned, he (Buckley) was a stranger, was n’t he? Ans. Comparatively so. But still, it had been done on numer
"Whether the company was aware of these frequent and friendly transferences of duty between its conductors and assented to them was not shown by the testimony. Buckley gave the signal to stop for Pine street, and left the car at that point in advance of the plaintiff and her child, without giving the starting signal. The plaintiff’s child descended in safety from the.car steps to the street, and the plaintiff herself went as far as the platform steps, when some unauthorized and unknown person gave the starting signal to the motorman. He obeyed it. The car started with the plaintiff on the steps. She grew dizzy, her head swam, she could not hold on to the platform railings, and because thereof, as she testified, fell to the street, sustaining' the injuries for which she sued. The car had gone a quarter of a block, perhaps more, from the point of starting when the plaintiff fell. Conductor Flora supposed that Buckley had given the starting signal, and supposed that the plaintiff had safely alighted. Yery soon after the car started he went out upon the rear platform, and finding her apparently about to leave the moving car directed her to wait for him to stop it. There is conflict in the testimony as to whether she jumped off or fell off. However, the jury having found in her favor upon this point, we are concluded by the finding.
Two claims of error arising upon the facts thus far stated are made. One is that the plaintiff’s fall, according to her own testimony, was not caused by the premature starting of the car, but was caused by the attack of dizziness which overcame her and prevented her from holding on to the platform railings. It is argued that the plaintiff in error cannot be field re
“There is a marked difference between the duties the law imposes upon those who operate street-railways and those who operate ordinary steam-railways. The latter usually run upon schedule time, and have fixed places for receiving and discharging passengers. There is a higher degree of care imposed upon street-railways than upon ordinary steam-railways. When their cars stop for passengers to alight, it it the duty of their servants to stop long enougfe for the passengers to alight, and to see that the car does not start again, while any one is attempting to alight or exposed to danger. Stopping a reasonable time is not sufficient, but it is the duty of the conductor or those in charge to see and know that no passenger is in the act of alighting or in a dangerous position before putting the car in motion again."
Of course, what is meant by the rule that stopping a reasonable time is not sufficient is that assuming} without looking, that because a reasonable time has elapsed the passenger has safely alighted, is not sufficient diligence. Had the plaintiff been seized with dizziness while the car was standing waiting for her to alight, and she had in consequence fallen and been injured, no blame could attach to the company; but falling as she did from dizziness occurring while the car was negligently in motion, whether the dizziness was a consequence of its motion or otherwise, the company is liable for the resulting injuries.
Another claim of plaintiff in error arising upon the. facts hereinbefore stated is that the premature starting of the car was the act of the unauthorized person Avho rang the bell and gave the starting signal,- and not the act of the compan'y. The claim is that it was, the duty of the motor-man to obey the starting signal; that he could not know that it had not been given by-
We do not deny the legal doctrine advanced by counsel for plaintiff in error, which is that a railroad company cannot be held responsible for injuries to a passenger resulting from the act of an intermeddler which it could not foresee and guard against, but the facts of this case do not permit of its application. We will, however, for the purpose of meeting all phases of the contention of counsel for plaintiff in •error, assume that Buckley’s agreement to let the -.plaintiff off implied an obligation upon his part to give the starting as well as the stopping signal. He did -not do it, but, after stopping the car got off himself and left the remainder of his duty unfulfilled. Whose fault was this? If the custom among conductors to assist one another in exigencies such as the one under consideration, as testified to by Conductor Flora, was
If on the other hand the custom among the company’s conductors to lend one another assistance in such cases, as testified to by Conductor Flora, was unknown to the company and therefore unauthorized by it, or if no such custom existed, Conductor Flora was himself guilty of negligence in abandoning the duty of his position, or in deputing its performance to-another, and for such abandonment of duty by him the company is as much responsible as for the abandonment of the same duty by the man Buckley. There is no escape from these conclusions. They are irrefutable. If Flora rightly deputed the performance of his duties to Buckley — that is, rightly as to the company — and Buckley negligently omitted to perform them, the company is liable. If Flora had no right to turn the performance of his duties over to Buckley, but nevertheless did so, he must-be held to have negligently abandoned them, in which event the company is equally liable. If the authority of adjudged cases be necessary to enforce these manifestly sound propositions, it can be found in Haluptzok v. Great Northern Ry. Co., 55 Minn. 446, 57 N. W. 144, and Booth v. Mister, 7 Carr. & Payne, 66.
■ Some of the plaintiff’s testimony was in proof of an injury and resulting damages which had not been al
Some minor claims of error raising questions of variance between the 'pleadings and proof are made. They are, however, quite technical and unsubstantial and lacking in merit.
■ The judgment of the court below is affirmed.