38 Neb. 226 | Neb. | 1893
The amended petition in this case alleged the corporate existence of the Union Pacific Railway Company, and that it was operating a line of railroad through Kearney, Nebraska, at the time of the injuries complained of; that on April 29, 1890, plaintiff in said petition purchased a ticket entitling him as a passenger to be transported upon
The answer admitted the cor-porate existence of the defendant, and that at the time of the alleged injury it was operating a railroad, and seriatim denied each averment in the plaintiff’s petition contained, and alleged that whatever injury plaintiff had suffered was due wholly to his own negligence. There was a reply in denial of all allegations, of the answer inconsistent with the averments of the petition.
Upon a trial a verdict was returned in favor of the plaintiff for the sum of $1,314.49; and, a motion for a new trial having been overruled, judgment was duly rendered for the amount of said verdict.
There was but little evidence as to the manner of the accident, except such as was given by the plaintiff himself. Such evidence as there was, however, is found fully epitomized in the petition above described, and therefore requires no repetition. There was evidence, furthermore, that the railroad train which carried plaintiff from Grand Isl- and to Kearney made no stop at the water tank at the latter place, but that the stop which plaintiff believed was at the water tank was, in fact, made so as to allow the baggage to be unloaded from the baggage car in said train, directly opposite the baggage room of Kearney station. There was nndisputed evidence also that the train extended from the-baggage coach aforesaid to quite a distance east of the east end of the platform at the Kearney depot, and that the car-step upon which plaintiff was standing during the halt of the train was some distance east of the platform and incline at said station. There was a cinder walk along the track opposite to where plaintiff stood during the halt made by the train, upon which walk it would have been possible and safe for plaintiff to have walked to the Kearney depot, had he so chosen to have done. The time at which the
The facts were submitted for the determination of the jury solely upon the following instructions:
“First — 'The defendant company undertook to carry the plaintiff from Grand Island to Kearney. If the plaintiff was injured during the journey the defendant company is*234 liable for the actual damages which he sustained, unless the injury done arose from the negligence of the plaintiff.
“Second — It was the duty of the company to notify the plaintiff that he was approaching his destination. It is claimed by the plaintiff that the train stopped before it reached the platform at the depot. This is denied by the defendant. The court charges the jury that it was the duty of the company to cause its train to be pulled up to the depot platform, so that the passengers might alight upon said platform with convenience and safety; but it was not incumbent upon the company to build a platform as long as its train, nor to pull up each car so that it was abreast of the platform. If the railway company furnished to the plaintiff at Kearney such facilities as it had for leaving the train, and the length of the platform available for that purpose was used by the company in unloading its passengers, and the same was reasonably adequate for that purpose, it ought not in that particular be required to do more.
“Third — If the plaintiff, without fully realizing what he did and without time or opportunity to consider the natural consequences of his act, suddenly jumped from the train, and he was caused to do so by haste and a confusion of ideas as to what was right and proper under the circumstances, and such haste and confusion were the direct results of the conduct of the defendant’s agent in not sufficiently notifying the plaintiff as to his whereabouts when the train stopped, you will inquire and determine whether the company was negligent, and whether the injury resulted from the company’s negligence; and if you further find that the plaintiff in jumping from the train exercised the care, prudence, and intelligence of an ordinary person placed in like circumstances, and was excusable for leaving the train in the manner shown, you will find for the plaintiff. At the same time, if it was not the fault of the company that the plaintiff was mistaken as to the location of the train, if he was mistaken, or if the plaintiff, exercising*235 •ordinary care and prudence* could not have been so mistaken, if he was mistaken, of if plaintiff’s haste and confusion, if any, were not due to-the misconduct of defendant’s agent in running the tráin, - then plaintiff cannot recover. ’ -
“Fourth — If you find fór the plaintiff, you will be careful to allow'him only the-actual damage which he has sustained, and no more; and you will remember that the burden of proof is upon the plaintiff, and unless he establishes his case by a preponderance of evidence, you will find for the defendant.”
The greater part of the argument of plaintiff in error is devoted to the first instruction, which was, in effect, that as the defendant companyjiad undertaken to carry plaintiff from Grand Island to Kearney, if plaintiff was injured during the journey the defendant company was liable for the actual damages which he sustained, unless the injury done arose from the negligence of the plaintiff. Plaintiff in error insists that this requires the railroad company in all cases to become an insurer of the safety of its passengers. Perhaps there is some hidden meaning in this term, and that by conceding the position claimed, we might admit more than we would be willing to, if the same proposition was stated in other language, e desire that there shall be no uncertainty as to our views. Section 3, art. 1, ch. 72, Comp. Stats., is in the following language: “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 eases where the injury done arises from the criminal negligence of the persons injured, or when the jnjury complained of shall be the violation of some express rule or regulation of said railroad, actually brought to his or her notice.”
In the case of the Omaha & R. V. R. Co. v. Chollette, 33 Neb., 143, the following .instruction was approved by this court: “The term ‘criminal negligence,’ as it is used in
In the second instruction quoted we cannot find that the plaintiff in error had any ground of complaint. If the verdict had been for the railroad company it might admit of grave doubt whether, as stated in the last sentence of the second instruction, the railroad company had done enough to exonerate itself from liability in that respect by showing it had furnished for the plaintiff all the facilities it had for leaving the train, and a platform reasonably adequate for the purpose of'unloading passengers at said depot. A question might arise as to whether or not its facilities were all it should have had for unloading passen
The third instruction was confusing in its statements as to facts as to which it was assumed there was evidence. This confusion, however, was in its tendency rather hostile than otherwise to plaintiff’s right of recovery.
The judgment of the district court is
Affirmed.-