93 Neb. 419 | Neb. | 1913
This action was brought by the administrator of the estate of one Lloyd Painter for negligently causing the death of plaintiff’s decedent. On the trial in the district court for Hall county, and after the introduction of all of the evidence, the court, on motion, directed a verdict in favor of the defendant. Judgment was rendered on the verdict, and the plaintiff has appealed.
It is appellant’s main contention that the district court erred in directing a verdict for the defendant. By his petition it was alleged, in substance, that on the 29th day of December, 1908, his decedent bought a first class ticket from the defendant company at Ravenna, Nebraska, and on the morning of that day took defendant’s train No. 44, a full-vestibuled passenger train, for Grand Island; that he delivered his ticket to the conductor, Charles Holts, and that, as the train approached Grand Island, brakeman Prey, who was made a defendant, called the station; that decedent left his seat and started toward the door; that he stepped on the platform as the train was pulling into Grand Island; that he had every reason to believe that the platform was protected; that the vestibule was dark and not protected; that the platform was up and unguarded, and that the plaintiff’s.decedent, without any negligence on his part, fell through and was thrown from the train. It was further alleged that it was the duty of the railroad company to keep vestibule platforms closed; or, if left open, to have an employee, either brakeman or conductor, present to warn passengers and protect them from falling through the opening; that the platform door in said vestibule was not protected, and that Holts, the conductor, and Prey, the brakeman, individually and as employees of defendant, carelessly, negligently and unlawfully permitted the vestibule to remain open and unprotected, and negligently left the said open place unguarded; that, as a result of said negligence, Painter fell through the said opening and under said train, and that the defendants thereby caused his death.
There is no conflict in the evidence as to the fact that Lloyd Painter was a passenger on the defendant’s train from Ravenna to Grand Island at the time alleged in the pleadings. The plaintiff, to further maintain the issues upon his part, produced the testimony of certain witnesses, from which it appeared that after the defendant’s train left the station at Grand Island Painter was found lying beside the track between 400 and 500 feet north of the depot, in an unconscious condition, with both of his feet cut off; that it was apparent that he had received his injuries by being run over by the defendant’s train. Plaintiff produced no evidence, however, showing or tending to show that Painter fell from the defendant’s train in the manner alleged in his petition. In fact, plaintiff produced no testimony showing or tending, to show the manner in which Painter received his injuries. On the other hand, conductor Holts testified that he saw Painter in the depot at Ravenna before the train arrived at that,
Irwin Flynn, who was the passenger mentioned by conductor Holts, testified that he came to Grand Island on train No. 44, December 29, 1908. He said: “Upon arrival I got off the train and went in a bus from the Burlington station over to the Union Pacific depot. Then I went back to the Burlington station, arriving there about a half hour after the train had first arrived and found Painter lying in the men’s waiting room with his feet cut off. I recognized Painter. I had seen him on the train. I rode in the second seat from the front end of the north side of the car and Painter rode on the south side, a seat or two back from me. I got on at Mason City, and Painter got on at Ravenna. When I got up to get off the car at Grand Island, Painter was in the car there sitting-down. I got off the steps and the trainman was standing there, but I-can’t say who he was. The train had stopped when I got off. The opening at which I alighted was about six feet north of the bay window in the depot.”
One Stephen Yelda, a witness for the defendant, testified, in substance, that he was in the depot at Grand Island when No. 44 came in on the morning of December 29, 1908; that the train was standing still when he came out of the depot. He further said: “When I got out of the depot, I kept toward the north end of the depot, to get across the street, the train was in my way. While I was walking along the train I saw the man standing right next to the cars between the second and third coach, but it was on the rear end. I looked at him and saw there
- The brakeman, Harry Prey, testified, in substance, as follows: In the station at Ravenna before the train left that morning, I had seen a man who was said to be Mr. Painter. He wore a light hat and a black overcoat. He was on the train after we left Ravenna, sitting four or five seats back, on the south side of the chair car. I was going through to close the vestibule doors when he motioned to me, and said: “Will you see that I get off at Grand Island?” When near Grand Island I awakened him, and also awakened the rest of the Grand Island people; and after'they whistled for the station I started from the rear end, and took my time going through to see that everybody was awakened who was to get off at Grand Island. I came into the vestibule at the head end of the rear chair, car, and opened that vestibule. Conductor Holts was there. I then went on through the next car, where Mr. Painter was; that was the chair car right back of the smoker. I took my time going through there to see that everybody was awake. I came to Painter and touched him on the shoulder, and said, “Grand Island!” I called that car as I went through, and then went on into the smoking car, and did the same thing there, taking time to see that everybody was awake, and I came back to the end of the first chair car, behind the smoker, and opened that vestibule. I remained there until the train stopped at the depot. From the time that vestibule was opened until the train came to a dead stop at the station nobody got out of that opening. I opened the two vestibules. The rest of the vestibules were closed. After we stopped at Grand Island Painter got off at the
Plaintiff contends, however, • that, if the evidence was insufficient to establish his charge of negligence, still his cause should have been submitted to the jury on the theory that when his decedent was injured he was within the protection of section 3, art. I, ch. 72, Comp. St. 1911, which provides: “Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of the person injured, or when the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or her notice.” It must be observed that the cause was not tried upon that theory; and, as we view the evidence, it fails to show that plaintiff’s decedent was a passenger “being transported” over defendant’s railroad at the time the accident occurred. The section of the statute quoted above has been construed by this and other courts in many cases, and the rule is well settled that after a passenger, as defined in the statute, places himself under the charge of the carrier as he begins his journey until he is afforded
As we view the evidence, plaintiff’s decedent had ceased to be a passenger when he received his injuries. The defendant company had safely delivered him from its train to its depot platform, and afforded him an opportunity to. safely depart from the place where he was delivered. He had, in fact, left the depot and the depot platform, and must have wandered along the track by the standing train to a point at least 150 feet from the end of the depot platform. He had broken away from the gare of the defendant’s servants, and therefore was not a passenger “being transported” when he was injured. Plaintiff’s petition does not charge, nor does the evidence show, that the defendant company was guilty of any breach of duty to the decedent after his safe delivery upon the depot platform. Therefore we are of opinion that the district court properly sustained the defendant’s motion, and directed the jury to return a verdict in its favor.
For the foregoing reasons, the judgment of the district court is
Affirmed.