102 Neb. 537 | Neb. | 1918
Lead Opinion
Mbs. Marion Leon, plaintiff and appellee, aged 22, sued defendant for personal injuries alleged to have been sustained by her in being thrown from the lower step of one of defendant’s coaches that was “negligently and carelessly moved, jerked and suddenly started,” as alleged, at its Omaha depot as she was about to alight therefrom after accompanying into the coach one of defendant’s outgoing passengers who was her guest and about to leave the city. , She recovered a judgment for $1,350, and defendant appealed. This cause is before us. on rehearing. The former hearing was before the commission, and on their recomméndation we reversed the judgment of the district court.
• Plaintiff’s petition alleges in substance that she was permitted by the employees of defendant to pass through the depot gate and to board a coach in defendant’s train that an employee negligently and carelessly represented to her “would remain stationary for a period of four to five minutes from the time she boarded it; that, relying and depending upon said permission, advice and representation, plaintiff boarded said car and remained there * * * not more than two minutes; that she then immediately left said car, and that while she was in the act of stepping. therefrom * * * defendant, acting by and through its agents, negligently and carelessly moved, jerked and suddenly started said car without giving plaintiff any notice or warning whatever that said car was about to be moved, thereby throwing plaintiff violently to the ground and upon said brick pavement; * * * that, as a direct, immediate and proximate result of the negligence and carelessness of defendant,” she received the injuries complained of.
Miss Grojinsky had been plaintiff’s guest at her home in Omaha for about two weeks. She was a stranger there, and being unacquainted with the streets and car service plaintiff accompanied her to the depot at about 3 o’clock in the afternoon of August 3, 1914. Together they were permitted to proceed through the station gate to the train, upon Miss Grojinsky showing her ticket to the gatekeeper. Miss Grojinsky testified that when they arrived at the coach this conversation took place between her and defendant’s brakeman who was standing at the steps: “I showed him my ticket and said, ‘Red Oak?’ He said, ‘Yes, ma’am. This is the train.’ I said, ‘How many minutes before my train leaves?’ He said, ‘Ten minutes.’ I said, ‘Then my friend'will have time to go on the train a minute to say good-bye?’ ‘Yes, lady, plenty of time;’ and he ushered us on.” She said that at the time she told the brakeman that Mrs. Leon was there merely to see her off. She added that plaintiff was in the coach with her not to exceed two minutes, and that a few seconds after Mrs. Leon left her seated in the coach “there was a sudden lurch of the car. * * * I was jarred, kind of thrown forward in my seat. * * * Q. What did you observe when you looked out of the window? A. Marion Leon had fallen from the car. A gentleman was assisting her. * * * Q. Where was she when you looked out of the
Plaintiff testified that she left her guest seated in the coach about two minutes after her entrance, and that as she was descending the steps, and, just at the moment when her left foot was on the lower step and her right foot was in position to step down on the pavement, and while she was holding to the hand-rail of the ear, “this train gave a sudden jerk and I was thrown * * * to the pavement.” She added that she was not warned and did not know the train was about to be moved, and that as a result of its sudden movement she fell violently to the pavement on her right side, thereby incurring the injuries complained of. Her testimony was substantially to the same effect as that of Miss Groj insky respecting the conversation with the brakeman at the car steps. She testified that no box" step was in sight, nor was any employee of defendant to be seen when she came out of the coach, and that when she fell she was assisted to her feet by a young man of about 18, a stranger, who partly supported and partly carried her through the depot' gate and up the steps into the main waiting-room, and that after a brief period of rest, though in great pain, she boarded a street car that carried her to the store of her husband, and that he at once called a physician who came and administered first aid, and that she was again examined by the physician the same evening after being taken by her husband in a taxi to her home. She testified that as a result of the fall her entire right side was bruised and her arm was bleeding and her right foot was sprained, and that she
The attending physician testified that he examined plaintiff two times on the afternoon and evening of August 3. He said that on arriving at the- store of plaintiff’s' husband “Mrs. Leon was sitting on a box at the rear end of the store, * * * suffering quite a bit of pain, and pretty sick, and .1 simply bandaged up the leg. It was badly swollen, and I ordered her to be taken home at once, and I saw her late in the afternoon again.” He testified that plaintiff was in the third Or fourth month of pregnancy, and that she bled internally, and that her injuries threatened to result in a miscarriage, and that because of the pain she suffered he administered morphine hypodermics for about two days. He also said that plaintiff was “flat on her back * * * from seven to ten days, and she was under observation for about four or five or six weeks after that.” He was acquainted with her for about' a year before he attended her and said that her health was good before the injury.
Defendant does not complain of the amount of the recovery; but, in view of its contention that the accident complained of by plaintiff was not sustained by her upon the premises of the railroad, we have discussed the pleading and the testimony at unusual length. In its brief defendant argues that the testimony adduced in support of plaintiff’s petition, “viewed in the light of the uncontradicted and unimpeachable
The following facts seem to have been established to the satisfaction of the jury: That appellee was permitted by the carrier’s agents to enter the railroad yards and-the coach with her guest, and that they were informed by an employee at the car entrance that the train would not leave for ten minutes, and that she, in reliance thereon, remained in the coach about two minutes, when the train was negligently “jolted” or “jerked” forward several feet without warning to her, and that as a'direct result of such negligent movement of the train as she was about to step from the coach she was thrown violently to the brick platform and' thereby seriously injured. We conclude that the trial court properly refused to sustain appellant’s motion for a directed verdict either on the ground of insufficiency of the petition or of the testimony. When different minds may reasonably arrive at different conclusions from the same state of facts, as to whether the facts proved establish negligence, the question of negligence in such case is for the jury. Appellant assigns numerous errors respecting the giving and refusing of instructions and also on the admission of testimony. We have examined the assignments and find that no reversible error, was committed in the respects noted.
, On the question of the liability of a common carrier for negligence in this class of cases, the weight of authority seems to be in accord with the conclusion we have adopted. Plaintiff was not a trespasser. She
In boarding the coach of a common carrier a person is bound to anticipate such movements of the coaches as are usual and ordinary in making up its trains, such as the attaching of the engine or additional coaches or the like. But the duty devolves upon the carrier to rise ordinary care under such circumstances. The carrier should anticipate that persons who have a right to be upon its coaches at its stations may be in the act of boarding or alighting therefrom, and it should therefore at such times use ordinary care to avoid violent and abrupt movements of its trains without warning. We would be loath to hold that a person, with the knowledge and under the implied invitation of the carrier, could not enter one of its coaches with a passenger to speed a parting guest who had' been an inmate of the home and practically a member of the family without assuming the risk of injury from the negligence of its employees.
Defendant charges that plaintiff’s petition does not allege that she entered the coach for the purpose of bidding her guest farewell, nor to render to her any necessary assistance.. ( No motion to make plaintiff’s petition more definite and certain in the particulars complained of appears in the record, nor was the objection that is now made to the pleading brought to the attention of the trial court in the motion for a new trial. In such case the practice is well settled that the case may be disposed of as if such issue had been pleaded, or amendments may be allowed at any time to conform to the proof. In the present case we find the petition was sufficient and no amendment was required.
Affirmed.
Dissenting Opinion
dissenting.
There is no doubt that any one has a right to go upon a passenger train of a common carrier to accompany a departing guest, or for any lawful purpose, and “in boarding the coach of a common carrier a person is bound to anticipate such movements of the coaches as are usual and - ordinary in making up its trains, such as the attaching of the engine or additional coaches or the like. But the duty devolves upon the carrier to use ordinary care under such circumstances. The carrier should anticipate that persons who have a right to be upon its coaches at its stations may be in the act of boarding or alighting therefrom, and it should therefore at such times use ordinary care to avoid violent hnd abrupt movements of its trains without warning.” (Majority opinion.) The cars did not leave the station within the time that the trainmen informed the plaintiff they would remain there, and if the starting of the car was an ordinary matter, such as passengers and others might expect at any time when a passenger train is standing, then passengers and others getting on and off the train should have that in mind and should - not put themselves in a position where they would be thrown down by such a movement of the car. The question as to just how much the record shows that the car was jarred or moved is a very important question. The fact that the plaintiff fell and was severely hurt does not prove that there was any extraordinary movement of the car. It does hot prove negligence on the part of the defendant. Her. fall is equally consistent .with a failure on her own part to use due care under the circumstances.