Chicago, Burlington & Quincy Railroad v. Martelle

91 N.W. 364, 65 Neb. 540, 1902 Neb. LEXIS 322

• Court: Nebraska Supreme Court
• Decided: July 10, 1902
• Docket: No. 11,258
• Status: Published

Opinions

Barnes, C.

This case was tried in the district court of Butler county, and resulted in a verdict and judgment against the defendant railroad company for the sum of $3,500.- A motion for a new trial was overruled, and the case comes to this court on a petition in error. The amended petition, upon which the case was finally submitted to the jury, is as follows (omitting title) :

“The plaintiff complains of the defendant and for cause of action alleges and says:

“1st. That said defendant is a corporation, duly organized and existing under and by authority of the laws of the state of Nebraska, and is operating a-railroad from Ashland, Nebraska, to Schuyler, Nebraska, and is a common carrier of passengers and freight for hire on said railroad.

“2d. That on the 9th day of January, 1898, and while the defendant was so operating said railroad it received the plaintiff as a passenger in one of its cars at Schuyler, Nebraska, to convey him from said place to Edholm, Nebraska, for the sum of thirteen cents, paid by the plaintiff to the defendant.

“3d. That on said day in managing and conducting the train and cars on which the plaintiff herein was a passenger, the defendant and its employees were so negligent and careless that said train on approaching the station of Edholm commenced to slow np to stop at said station, but on arriving at said station did not come to a standstill, but nearly stopped just after arriving at the platform of said station, and that said train still running at a slow rate of speed passing the platform at said station and the plaintiff herein believing he could get off said car on which he was riding started to alight from said car and just as he was about to alight and started to alight from said car that said train was given a sudden jerk which then and there caused the plaintiff when alighting on the ground on his feet and then falling over he Avas injured by having his back and spinal cord hurt.

“4th. By reason of AAdiich the plaintiff was sick and has been lame and weak in his back for a space of nine months and unable to attend to his business, and is still in such condition and has expended for medical attendance before the commencement of this suit to Dr. Murphy of Octavia, Nebraska, the sum of $25.00 in all to his damage in the sum of $5,000.”

To this petition the railroad company filed the following answer (omitting title) :

“Noaa^ comes the defendant above named, and for an-SAver to the petition filed by the-plaintiff, says that it is a corporation duly organized and existing under and by virtue of the laws of the state of Illinois, and that as such it owns and operates the line of railroad referred to in said petition, and did1' own and operate the same at the time re- ■ ferred to in said petition.

“Further answering said petition this defendant says that it is informed and believes that the plaintiff was a passenger on defendant’s train running from the station of Schuyler to Edholm at the time stated in said petition; but the defendant denies each and every allegation stated in said petition, except such facts as are stated in this ansAver.

“The defendant further says that if the plaintiff got off of said train while the same was in motion, as stated in his petition or otherwise, and injured himself in getting off, that such injury ivas sustained by reason of his own carelessness, negligence and misconduct, and without any fault of the defendant.

“Wherefore the defendant prays judgment against the plaintiff for costs.”

The reply was a general denial. The plaintiff in the court below was allowed to file his amended petition after the evidence on his part ivas introduced, to which the defendant company objected and had its exceptions allowed, and this ruling is assigned as error..

1. The question of amendments to pleadings is one which calls for the exercise of the discretion of the trial court, and unless it is shown that there ivas an abuse of such discretion, the rulings upon such matters will be sustained. In this case the defendant company made no application for a continuance on account of the filing of the amended petition, and the record fails to show that the amendment caused any surprise, or ivas the occasion of any injury to the rights of the company, or in any manner necessitated a change in the trial. We hold that there was no error in allowing the amended petition to be filed.

2. It is contended that the court erred in overruling the objection to the introduction of any evidence on the part of the plaintiff, for the reason that the petition did not state facts sufficient to constitute a cause of action. It is urged that inasmuch as the amended petition contains no prayer for a judgment, it is faulty and defective, and will not support or sustain the verdict and judgment in this case. We are satisfied that the judgment of this court must turn upon another question, and therefore we do not decide this point. We will say, however, that in all of the cases cited in support of the amended petition there ivas some kind of a prayer for a judgment, however defective it may have been. In this case there is no prayer for any judgment whatever. It is true that the prayer for relief is no part of the facts constituting the cause of action, yet the Code requires that the petition shall contain a prayer for such relief as the plaintiff deems himself entitled to. Will a petition which contains no prayer for any relief whatever sustain a verdict and judgment, queer e?

3. The defendant company at the close of all of the evidence, moved the court to instruct the jury that under the pleadings and the evidence the plaintiff was not entitled to recover, and to return a verdict for the defendant. This motion was overruled. The ruling was excepted to, and is now assigned as a ground for a reversal of the judgment of the loAver court. Giving to the amended petition in this case a fair and reasonable construction, we find that it charges the railroad company Avith negligence in not stopping its train of cars at Edholm, the destination of the plaintiff, a sufficient length of time to permit him to alight therefrom in safety. It is true that the petition contains an allegation that just as the plaintiff Avent to alight from the car, and just as he Avas about to alight and started to alight therefrom, the train was given a sudden jerk, which then and there caused the plaintiff, Avhen alighting on the ground on his feet, to fall over, and he was injured thereby; but the charge of negligence is not based on this allegation. An examination of the evidence shows that it was not sufficient to sustain an allegation of negligence on this ground. Without considering any of the evidence of the defendant company, and giving the most liberal construction to that introduced by the plaintiff in support of his cause of action, we find it fairly established that the plaintiff in the court below purchased a ticket and became a regular passenger on the defendant’s train from Schuyler to Edholm; that it was dark when the train reached that place; that the company did not stop its train so as to allow him to alight at his place of destination ; that it sloAved its train as it passed the station so that the plaintiff’s companion, Streeter, got off, at a place about twenty feet beyond the depot platform; that the speed of the train was accelerated with a sudden jerk, which is the jerk complained of by the plaintiff, and thereafter continually increased its speed until the plaintiff finally jumped off at a point some 150 feet east of the station; that the jerk spoken of occurred just as the plaintiff commenced to get off; that'he remained on the steps of the car platform from that time until he passed several obstructions which he saw, and when clear of them he stepped or jumped from the steps to the ground; that by this time the train was going with such speed as to cause him to fall down after alighting on his feet, and in that manner he sustained the injuries of which he complains. It is shown that he did not request the conductor to stop the train and allow him to alight, and that none of the persons in charge thereof knew of his intention to get off while it -was in motion. The undisputed evidence of the plaintiff having established the foregoing facts, we are required to determine whether or not, as the pleadings and the evidence stood at the close of the trial, the instruction tendered by the company should have been given. It was clearly the duty of the company to stop its train and allow the plaintiff to alight at his place of destination, and in not doing so it was guilty of negligence, but this negligence was not the proximate cause of plaintiff’s injuries. Proximate cause is defined to be that cause which is nearest, most immediate to, and is the direct cause of the injury complained of. The negligence of the railroad company in carrying the plaintiff past his place of destination was not the proximate cause of his injury. An act is the proximate cause of an event when in the natural order of things, and under the circumstances, it would necessarily produce that event; when it is the first and direct power producing the result. Beach, Contributory Negligence, sec. 31. The act of plaintiff in stepping or jumping from the train while it was in motion answers to the above definition, and was in fact the proximate cause of his injury. In this matter no negligence of the defendant company is shown. It is not claimed that any one in charge of the train knew that plaintiff was about to or did jump from the car steps at the time he claims to have been injured. In Chicago, B & Q. R. Co. v. Landauer, 36 Nebr., 642, a case where the plaintiff jumped from a moving train, without as much time for reflection as plaintiff had in the case at bar, this court held that there could be no recovery, and that one who jumped from a. rapidly moving train of cars, under such circumstances as exist in this case, was guilty of criminal negligence, within the meaning of section 3, article 1, chapter 72, of the Compiled Statutes of this state. The plaintiff in the court below testified on trial as follows:

“The train was going sloAver as it got past the platform, Avhen I jumped I lit on my feet and fell down afterwards; struck on my feet first and then from the force fell over. I lit on my feet at the bottom of the grade.

Q. You had been trying to get off all the Avay from the station to' AAdiere you did get off?

A. Yes, sir.

Q. That was the first time you could succeed in getting off?

Q. And you knew the train hadn’t stopped?

Q. Knew it AAras running all the time you "were trying to get off?

A.' I knew it was moving along because I could see the piles of ties there, that is why I didn’t get off at the time Mr. Streeter did; I could see the piles of ties and piles of rails and Avhen I thought it was safe to get off at the end of these I got off;. I did not try to get off until I could see the end of these ties and rails.

Q. After you passed them then you tried to get off?

A. Yes, sir, I got off.”

He also testified that he kneAv the trainmen were in the front end of the same car but made no effort to let them know that he wanted to alight, nor did he ask them to stop the train and let him off. The witness Streeter says that he stepped off the car about twenty feet east of the station platform when the train was going the slowest, “and then I thought it wasn’t going to stop so I stepped off and after I stepped off I saw it started up faster. I heard it going faster. I heard it jerk as though it was going faster; I knew it started up faster.

Q. You stated that you heard the cars jerk up; how soon was it after you got off?

A. Right away; I heard it jerk up right away after I stepped off.”

The plaintiff was a man possessed of his ordinary faculties, and knew at the time he stepped or jumped from the moving train that he had been carried past his place of destination, and that the train would not stop until it reached the next station. He could have remained in the car where he was perfectly safe from injury, and would only have been subjected to the inconvenience of being carried to the next station. For this wrong he had an adequate remedy in an action for damages against the company. He could have called the conductor and requested him to stop the train and allow him to alight in safety. Such request would probably have been complied with. Instead of adopting either course he concluded to take his chances and alight from the moving train. He was confronted by no immediate danger which would impel him to leap therefrom; there was no sudden emergency requiring instant action without opportunity for deliberation; he went to the rear platform, calculated his chances to alight, and deliberately waited until he thought his opportunity was good, when he stepped or jumped from the car steps. In so doing he must be held to have known the danger, and to have deliberately accepted the risk. Such action on his part was gross negligence, and amounted to an utter disregard of the danger into which he blindly plunged. It seems to us that there is no room for any other conclusion among men of reasonable intelligence and prudence than that to attempt to alight from a moving train under such circumstances, amounted to criminal recklessness. It is an established rule of law that in the absence of anything to create excitement or alarm, to attempt to leave a car while in motion by jumping from the steps of the car platform to the ground is evidence of such negligence on the part of the passenger that he can not recover for any injuries resulting from such action. Butler v. St. Paul & D. R. Co., 60 N. W. Rep. [Minn.], 1090; McDonald v. Boston & M. R. Co., 2 Am. & Eng. R. Cases, n. s., 293

*; Jacob v. Flint & P. M. R. Co., 63 N. W. Rep. [Mich.], 502; Rothstein v. Pennsylvania R. Co., 33 Atl. Rep. [Pa.], 379; Burgin v. Richmond & D. R. Co., 115 N. Car., 673. It was held in the Ijandauer Case that when the carrier shows that the passenger was injured by stepping from its running train, the presumption of liability raised by law against the carrier is overthrown, and it then devolves upon the passenger to show some justification necessary for such action to relieve himself from the imputation of gross negligence. Plaintiff in this case failed to make any such showing, and it is demonstrated by the testimony that he was guilty of criminal negligence, and has not sustained the burden of justification put upon him by stepping or jumping from a running train. It is contended on the part of plaintiff that he is entitled to recover in this case by reason of the rule of law announced in Omaha & R. V. R. Co. v. Chollette, 33 Nebr., 143. An examination of that case shows us that the plaintiff attempted to alight from the train at the place of her destination; that the train did not stop a sufficient length of time to enable her to do so, but started up suddenly, thus throwing her to the platform. The facts in that case authorized a recovery. The decision in the Union P. R. Co. v. Porter, 38 Nebr., 226, is cited to support the plaintiff’s right to recover. In that case the train had stopped to take water. The plaintiff, supposing of course that it Avould pull up to the station and stop a sufficient length of time to alloAV him to alight, stood upon the steps of the car platform, waiting until it should reach the depot. On arriving there he suddenly discovered that the train was not going to .stop, and instantly, without opportunity for reflection, stepped off onto the platform of the station and was injured thereby. The court very properly held that he was entitled to recover. We approve of the decisions in both of these cases, but the facts in each of them are so unlike those in the case at bar that they are of no assistance to us in deciding this question. Upon principle and precedent we hold that, as the pleadings and the evidence stood at the close of the trial, the plaintiff was not entitled to recover, and the court erred in refusing to so instruct the jury. For this error the judgment of the district court should be reversed and the case remanded for a new trial. There are many other errors complained of in this record, but as we deem this one decisive of the case, as it stands, it is unnecessary to consider them.

For the foregoing reasons we recommend that the judgment of the district court be reversed and the cause remanded for a new trial.

By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for a new trial.

Reversed and remanded.

32 Atl. Rep. [Me.], 1010.