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LUSBY

V.

ATCHISON, TOPEKA & SANTA FE R. Co. (U. S. Circuit Court, D. Colorado, January 21, 1890.) Passenger on Freight Train-Injuries-Weight of Evidence.-Where plaintiff who was injured while a passenger on a freight train testifies that as the train neared the station he arose to look out, when a sudden jerk threw him down, and that he lay in the caboose in pain whilst switching was going on at the station, and the defendant's witnesses testify that the injury occurred as the train was preparing to leave the station, and not whilst it was approaching it, a verdict for the plaintiff will not be set aside, the weight of the evidence and credibility of the witnesses being for the jury.

Same-Contributory Negligence - Rising to Look Out.—The question whether a passenger in the caboose of a freight train is guilty of negligence contributing to his injuries by rising to look out upon approaching a station is for the jury.

AT LAW. On motion for new trial.
Peterson & Thomas for plaintiff.
C. E. Gast and Wells, McNeal & Taylor for defendant.

PHILLIPS, J.-This is an action for personal injuries sustained by the plaintiff while a passenger on one of defendant's freight trains running from Pueblo, Colo., to the town of Coolidge, in the state of Kansas. The case was tried by a jury, before HaLLETT, J. Verdict for plaintiff. The case now stands on motion for new trial; and, by request of Judge HALLETT, I sat with him on the hearing of this motion. Not having time and opportunity, while holding court at Denver, to confer with him respecting the motion, at his request I submit for his consideration the views entertained by me respecting the merits of the motion.

The facts of the case, about which there is little controversy, are, briefly, as follows: The plaintiff

, aged about 60 years, had some time prior to the accident been in defendant's employ at its train yards at Pueblo as a machinist, and had thereby become acquainted with the conductor and trainmen in charge of the freight train in question. He was not, however, so in the employ of the defendant at the time of the injury. On the 12th day of July, 1885, it being Sunday, he applied to the conductor in charge of a freight train on defendant's road to be carried as a “dead-head" from Pueblo to Coolidge, and was admitted by the conductor as a passenger on this train.

Facts.

The evidence showed that defendant was in the habit of carrying, passengers in the caboose usually attached to such freight trains. This freight train was composed of about 46 freight cars with air brake appliances connected with only a small portion of the front cars. On the other cars there were the customary hand-brakes, and there were brakemen for their operation. There was one other passenger in the caboose with the plaintiff. The plaintiff's testimony, in substance, was that, as this train approached the railroad station called Blackwell, the cars whistled the usual signal for approaching a railroad station; whereupon the plaintiff left his seat, and started to the rear door of the caboose, for the purpose of looking out to see the station or town which they were approaching. Just as he had gotten upon his feet, and started towards the door, the car made a sudden and violent stop, which threw him backward, in the direction the car was going, with such violence as to carry him several feet, and falling in the door of the partition separating the front and rear parts of the caboose. * The fall was so violent as to dislocate his hip, and cause great, if not permanent injury. The evidence on the part of the defendant tended to show that this accident occurred after the train had gone into the station and stopped, and done some switching, taking on another freight-car, and occurred just as the train started out of the station, and that the sudden jerking resulted from the fact that the brakes were fastened upon the tender; that is, the air in some way, from exclusion by pressure in the cylinder, had fastened the brakes upon the wheels, and the engineer stopped for the purpose of taking them off. The engineer testified that it was necessary to stop suddenly for that purpose. On this latter branch of the case, the court in its charge to the jury instructed that if the injury occurred at this point, and under such circum stances,—that is, if it was necessary, in the judgment of the engineer thus to suddenly stop and unfasten the brakes from the wheels—the plaintiff could not recover.

Counsel for defendant, on the hearing of the motion for a new trial, insist upon two propositions as the basis of its application for rehearing: First, that the weight of evidence is so overwhelmingly in favor of the proposition that the injury occurred, not as they approached the station, as claimed by the plaintiff, but just as they were preparing to leave the station, and in the manner testified to on behalf of defendant, that the court ought not to permit the verdict to stand; and, second, that the plaintiff's own evidence shows that he was guilty of such contributory negligence on his part that he ought not to recover.

cident

Upon a careful reading of all the testimony, as taken at the trial by the stenographer, I cannot see that the court would have been justified in taking the case from

Place of acthe jury on the first proposition. Certainly, when the plaintiff rested, there was not such evidence

Weight ofi of this fact as would have justified its withdrawal

testimony. from the jury. The general rule of practice is that the court may take the case from the jury at the conclusion of the plaintiff's evidence, when, in its opinion, admitting the evidence to be true, no cause of action is shown: but, when the failure of the plaintiff's case is made to depend upon the defendant's evidence, its credibility, weight, and probative force are questions for the jury. Woods v. Atlantic Mut. Ins. Co., 50 Mo. 115, 116; Herriman v. Chicago & A. R. Co., 27 Mo. App. 443. Where, however, the defendant's evidence is so overwhelming and indisputable in its nature and character as to leave no ground for variant conclusions in the minds of reasonable men, the court may direct the jury to find accordingly. So long, however, as the right of trial by jury exists, suitors are entitled to take the opinion of the jury on disputed facts; for they are the sole judges of the weight of evidence, and the credibility of witnesses. The court responds to the law, and the jury to the facts. The plaintiff is a competent witness under the law. His credibility, and the weight to be attached to his testimony, are essentially questions for the jury. It may be conceded that the evidence on the part of the defendant quite clearly shows that the injury in question occurred after the train had gone into the station of Blackwell; but the plaintiff's evidence just as clearly shows that it occurred before the station was reached, and was the result of the manner of slowing up the train on its approach thereto. And there are some facts and circumstances testified to by the plaintiff, which, if they existed, very strongly corroborate his statement as to the time and place of the accident. He testifies, inter alia, that just after he fell he was picked up by the other passenger, and laid upon the seat or bench in the car, and that he lay there some 20 minutes, until they made the second start. He also testified that, while he was so lying prostrate and helpless upon this bench, the cars were doing some switching or making some movements in the switch-yards, and he made these significant statements: “I was lying on the bench, suffering with intense pain. When they hooked on to start off I remarked to the man that picked me up: ‘My God, they will kill me yet.' They were then either starting off, or doing something.

I know they were jerking things around pretty lively. I could not tell what they were

*

doing: I was lying there in such intense pain I could not get up. I know every jerk they gave me there. I was afraid they would jerk the life out of me." This would show that when the movements and violent jerking occurred about the switch-yards, and when the train started off, the plaintiff had received his injury, and was prostrated. The jury, who looked upon and heard the witness, should be allowed to say whether they believe him or not. And this is the whole matter of this issue.

The only remaining question to be considered is as to whether the plaintiff's evidence shows such contributory Contributory negligence on his part as to make it the duty of negligence- the court to take the case from the jury. I know Rising to look no sounder or safer rule respecting this muchout.

mooted question of contributory. negligence than that announced by courts of the highest character, as follows: “There is no doubt that negligence is in many cases a question of law to be determined from the facts agreed or found by the jury. But where the facts in evidence may, in the judgment of sensible men, lead to very different conclusions, as to whether they establish want of care or contributory negligence, the jury is the tribunal selected to determine the question.” Norton v. Ittner, 56 Mo. 352; Sioux City & P. R. Co. v. Stout, 17 Wall. (U. S.), 657.

The observations of that eminent jurist, Chief Justice Cooley, in Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 120, are entitled to respect : “When the judge decides that a want of due care is not shown, he necessarily fixes in his own mind the standard of ordinary prudence, and, measuring the plaintiff's conduct by that, turns him out of court upon his opinion of what a reasonably prudent man ought to have done under the circumstances. He thus makes his own opinion of what would generally be regarded as prudence a definite rule of law. It is quite possible that if the same question of prudence were submitted to a jury collected from the different occupations of society, and perhaps better competent to judge of the common opinion, he might find them differing from him as to the ordinary standard of proper care. The next judge trying a similar case may also be of a differ. ent opinion, and, because the case is not clear, hold that to be a question of fact which the first has ruled to be a question of law.

While there is any uncertainty, it remains a matter of fact for the consideration of the jury. * * The difficulty in these cases of negligent injuries is that it very seldom happens that injuries are repeated under the same circumstances, and therefore no common standard of conduct by prudent men becomes fixed or known.

Negligence cannot be conclusively established by a state of facts upon which fair-minded men may well differ."

It is insisted that because the plaintiff was upon a freight train that he must take notice of the manner of running and managing such trains; and that he must have known from observation that such trains, on approaching stations, were liable to sudden jerks in the effort to stop them, which rendered it unsafe for one to get upon his feet on approaching a station; and that no one so getting upon his feet, from any cause short of absolute necessity, could recover for being knocked from his feet by the halting of the train, no matter how great the violence of the halt, and no matter how unnecessary its suddenness. Negligence is always a relative question. It is a question of ordinary care. It is the caution and vigilance which reasonable men exercise under like circumstances. Cayzer v. Taylor, 1o Gray (Mass.), 280; Ford v. Fitchburg R. 'Co., 110 Mass. 256; Flynn v. Kansas City, St. J. & C.B. R. Co., 78 Mo. 202; 18 Am. & Eng. R. Cas. 23. Or, as it is aptly expressed in Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 581, it is “that degree of care which persons of ordinary care and prudence are accustomed to use and employ, under the same or similar circumstances, in order to conduct the enterprise in which they are engaged to a safe and successful termination." It seems to me as rather extreme doctrine to say that a passenger on a caboose attached to a freight train on its approach to a station, actuated by the natural curiosity to look out to observe the town and surroundings, in the absence of any windows permitting an outlook, would be heedless of his own personal safety simply because he got upon his feet under such circumstances ; unless it can be maintained that the habit of such cars on approaching stations was to stop so suddenly and violently as to make it perilous for a passenger to be upon his feet at all at such a time, and that this fact was known to the plaintiff. Although this was a freight train, so long as the defendant admitted passengers upon it there was a mutual obligation imposed upon carrier and passenger. While a passenger entering upon such a vehicle of conveyance was subject to the inconvenience and perils ordinarily incident to the usual manner of handling such' trains, yet he had a right to presume that the agents and servants in charge of this train would also perform their duty towards him and the public. “And it is not to be denounced as negligence for him to assume that he is not exposed to a danger which can only come to him through the disregard of duty and law on the part of another. This is just and reasonable.” Kellogg v. Chicago & N. W. R. Co., 26 Wis. 223 ; Moberly v. Kansas City, Št. J. & C. B. R. Co., 17 Mo. App: 542.

A. & E, R. Cas.-7

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