DAVIS, Circuit Justice
(charging jury). We think a railway company, when it takes passengers as such on its freight trains is under the same obligation to carry them safely as if they were on the regular passenger trains — but, of course, the passenger taking the freight train accepts it and travels on .it, acquiescing in all the usual incidents and conduct of a freight train managed by prudent and competent men — no more and no less. And we consider it immaterial whether the company carries more or less passengers in its freight trains, and whether or not the passenger travels on a special permit op a regular ticket
The contract between the parties was, that for a consideration paid by the plaintiff, the defendant agreed to carry. him safely from Kewanee to a usual place of stopping at Galesburg, on its freight trains. If there was more than one place of stopping the plaintiff accepted the contract on that condition.
In order to maintain the action, the plaintiff must show that the contract on the part of the defendant has been violated in consequence of some fault or negligence of its employes, or through some defect in the means of transit, and it must appear that his own fault or negligence did not contribute to the injury.
A railway company in the transport of passengers, though not insurers of their lives, is required to use the utmost skill and diligence in carrying them safely, and to employ all those means peculiar to the mode of transit known to skillful and competent persons at the time. But it must be understood that a passenger, while on the train and connected with it, must have that care and regard for his own safety and security which devolves on a prudent man under the circumstances.
There are but two questions in this case which can be regarded as matters of controversy. First. Was the injury to the plaintiff caused by the negligence, want of care or skill on the part of the defendant Second. Was the plaintiff himself guilty of any fault, negligence or carlessness, which contributed to the injury, and would prevent him from recovering?
Was the conduct of the plaintiff, under all the circumstances of the case, that of a prudent and careful man? He had been told by the conductor that he had better get off there, or that others did get off there. He took his carpet-bag, umbrella and whip, and was in the act of going out of the door, or approaching it, when the car was jerked — the train being in motion at the time, at the rate of three or four miles an hour. And if he acted imprudently or carelessly, did that contribute to the injury complained of? If it did, then the plaintiff cannot recover. It is insisted that the plaintiff’s conduct at the time was- the result of the direction or suggestion of the conductor. The jury may be satisfied that the plaintiff was leaving the car under the advice or suggestion of the conductor; but if that were given, of his own motion merely, without authority from his principal would it justify a prudent man in alighting from a car when thus in motion? And upon this part of the case it is for the jury to say whether the plaintiff exercised [923]*923common prudence in attempting to alight from the car while in motion, and, if not, whether such omission contributed to the injury. Was there any such negligence on the part of the plaintiff that but for it the injury would not have been received?
Was there fault or negligence on the part of the defendant? It is claimed the defendant was guilty of negligence, on two grounds: First. In the act of the engineer causing a violent jerk to the rear car by too suddenly taking up the slack of the train; that is by tightening too quickly the coupling of the cars. Secondly. By the want of a good chain or bar on the center part of the rear platform.
A great deal of testimony has been given as to the necessity of jerking with more or less force the rear car of such a train as the plaintiff was on in this case. On the one side it is claimed it is unavoidable; on the other that by the use of proper caution and skill it can be prevented. In weighing' the evidence of this part of the case, the jury should examine it with reference to the kind of train run, and to the skill and prudence which could be applied at the time, as known and practiced by competent agents. If a skillful engineer could, at the time, by the use of proper caution, have avoided giving a jerk to the rear car, then it must be treated as a fault that it was not prevented. But if the jury shall find that some kind of jerk was unavoidable, could the engineer be required to measure and could he be expected to know the exact degree of force which in a long train would be applied to the rear car? The jury should candidly and impartially consider all the evidence bearing on this point, and test the facts by the circumstances shown to exist at the time, and which were known, or ought to have been known, to competent agents.
The proof establishes that there was no guard chain or bar in the center of the rear platform. The same principles are applicable to this point as to the last. It seems to be admitted that as a general thing it was not used on a way or caboose car at the time of the accident. This must also be tested by the degree of skill and prudence required at the time from careful and prudent agents. And the jury should also bear in mind the manifest object of the railing on the platform, viz: the protection of persons when they are rightfully on the platform in getting on or off the car, and if the plaintiff was not rightfully where he was at the time of the jerk, he cannot complain of the absence of the guard chain.
From what has been already said, it will be seen that a party may be guilty of some fault and that may not prevent him from recovering, and we think the case on trial must turn upon this. At the time of the jerk was the plaintiff rightfully where he was, and for the purpose he had in view, and was the jerk the result of negligence on the part of the agents of the defendant? If under the facts- and circumstances as you may find they existed at the time, a prudent man would have-been where the plaintiff was at the time of the jerk, and the jerk could have been avoided by the exercise of proper skill and caution,, then the plaintiff may recover, but on the other hand if you believe a prudent man would not have been where, and as the plaintiff was at the time of the jerk, and for the purpose of alighting from the car, then we think he cannot recover, though the jerk may have been the result of negligence on the part of the defendant’s agents.
These are our opinions of the law of the case, treating it as an original case. When-the case commenced in the state court, was-remanded from the supreme court to the court below for the reason already stated, the plaintiff voluntarily dismissed it, and some time -after commenced a suit in this-court for the injury sustained.
We have already decided that, as the opinion of the supreme court of the state was founded on the facts as they then appeared, the plaintiff had the right to establish other and different facts concerning the cause of the injury, and, therefore, the plaintiff has been permitted to introduce any evidence in his power having a bearing on the case, and that evidence is before you.
Free access — add to your briefcase to read the full text and ask questions with AI
DAVIS, Circuit Justice
(charging jury). We think a railway company, when it takes passengers as such on its freight trains is under the same obligation to carry them safely as if they were on the regular passenger trains — but, of course, the passenger taking the freight train accepts it and travels on .it, acquiescing in all the usual incidents and conduct of a freight train managed by prudent and competent men — no more and no less. And we consider it immaterial whether the company carries more or less passengers in its freight trains, and whether or not the passenger travels on a special permit op a regular ticket
The contract between the parties was, that for a consideration paid by the plaintiff, the defendant agreed to carry. him safely from Kewanee to a usual place of stopping at Galesburg, on its freight trains. If there was more than one place of stopping the plaintiff accepted the contract on that condition.
In order to maintain the action, the plaintiff must show that the contract on the part of the defendant has been violated in consequence of some fault or negligence of its employes, or through some defect in the means of transit, and it must appear that his own fault or negligence did not contribute to the injury.
A railway company in the transport of passengers, though not insurers of their lives, is required to use the utmost skill and diligence in carrying them safely, and to employ all those means peculiar to the mode of transit known to skillful and competent persons at the time. But it must be understood that a passenger, while on the train and connected with it, must have that care and regard for his own safety and security which devolves on a prudent man under the circumstances.
There are but two questions in this case which can be regarded as matters of controversy. First. Was the injury to the plaintiff caused by the negligence, want of care or skill on the part of the defendant Second. Was the plaintiff himself guilty of any fault, negligence or carlessness, which contributed to the injury, and would prevent him from recovering?
Was the conduct of the plaintiff, under all the circumstances of the case, that of a prudent and careful man? He had been told by the conductor that he had better get off there, or that others did get off there. He took his carpet-bag, umbrella and whip, and was in the act of going out of the door, or approaching it, when the car was jerked — the train being in motion at the time, at the rate of three or four miles an hour. And if he acted imprudently or carelessly, did that contribute to the injury complained of? If it did, then the plaintiff cannot recover. It is insisted that the plaintiff’s conduct at the time was- the result of the direction or suggestion of the conductor. The jury may be satisfied that the plaintiff was leaving the car under the advice or suggestion of the conductor; but if that were given, of his own motion merely, without authority from his principal would it justify a prudent man in alighting from a car when thus in motion? And upon this part of the case it is for the jury to say whether the plaintiff exercised [923]*923common prudence in attempting to alight from the car while in motion, and, if not, whether such omission contributed to the injury. Was there any such negligence on the part of the plaintiff that but for it the injury would not have been received?
Was there fault or negligence on the part of the defendant? It is claimed the defendant was guilty of negligence, on two grounds: First. In the act of the engineer causing a violent jerk to the rear car by too suddenly taking up the slack of the train; that is by tightening too quickly the coupling of the cars. Secondly. By the want of a good chain or bar on the center part of the rear platform.
A great deal of testimony has been given as to the necessity of jerking with more or less force the rear car of such a train as the plaintiff was on in this case. On the one side it is claimed it is unavoidable; on the other that by the use of proper caution and skill it can be prevented. In weighing' the evidence of this part of the case, the jury should examine it with reference to the kind of train run, and to the skill and prudence which could be applied at the time, as known and practiced by competent agents. If a skillful engineer could, at the time, by the use of proper caution, have avoided giving a jerk to the rear car, then it must be treated as a fault that it was not prevented. But if the jury shall find that some kind of jerk was unavoidable, could the engineer be required to measure and could he be expected to know the exact degree of force which in a long train would be applied to the rear car? The jury should candidly and impartially consider all the evidence bearing on this point, and test the facts by the circumstances shown to exist at the time, and which were known, or ought to have been known, to competent agents.
The proof establishes that there was no guard chain or bar in the center of the rear platform. The same principles are applicable to this point as to the last. It seems to be admitted that as a general thing it was not used on a way or caboose car at the time of the accident. This must also be tested by the degree of skill and prudence required at the time from careful and prudent agents. And the jury should also bear in mind the manifest object of the railing on the platform, viz: the protection of persons when they are rightfully on the platform in getting on or off the car, and if the plaintiff was not rightfully where he was at the time of the jerk, he cannot complain of the absence of the guard chain.
From what has been already said, it will be seen that a party may be guilty of some fault and that may not prevent him from recovering, and we think the case on trial must turn upon this. At the time of the jerk was the plaintiff rightfully where he was, and for the purpose he had in view, and was the jerk the result of negligence on the part of the agents of the defendant? If under the facts- and circumstances as you may find they existed at the time, a prudent man would have-been where the plaintiff was at the time of the jerk, and the jerk could have been avoided by the exercise of proper skill and caution,, then the plaintiff may recover, but on the other hand if you believe a prudent man would not have been where, and as the plaintiff was at the time of the jerk, and for the purpose of alighting from the car, then we think he cannot recover, though the jerk may have been the result of negligence on the part of the defendant’s agents.
These are our opinions of the law of the case, treating it as an original case. When-the case commenced in the state court, was-remanded from the supreme court to the court below for the reason already stated, the plaintiff voluntarily dismissed it, and some time -after commenced a suit in this-court for the injury sustained.
We have already decided that, as the opinion of the supreme court of the state was founded on the facts as they then appeared, the plaintiff had the right to establish other and different facts concerning the cause of the injury, and, therefore, the plaintiff has been permitted to introduce any evidence in his power having a bearing on the case, and that evidence is before you. There is -also-in proof the facts which were established on the trial of the cause in the state court, on which the opinion of the supreme court of Illinois was based; and, we think, if yon shall find the facts'as established here in all material respects the same as proved in the state court, then the opinion of the state court is conclusive against the right of the-plaintiff to recover here, otherwise not Of course, it is of no consequence that the volume of evidence on both sides is much-greater than in the state court. The question is whether the cause of action is the same, and the facts, as proved here, are, in all substantial particulars, the same as established in the state court.
The record of the state court is in evidence. It. contains the bill of exceptions, the evidence offered in the former trials, and the opinion of the supreme court. It is .admissible only for the purpose of showing whether or not the facts as proved there affecting .the-case are substantially the same as shown in the trial here. We have already stated what the supreme court of Illinois decided. It would not be proper for the jury .to consider the opinion of the supreme court, or -to discuss its correctness, or the correctness -of the views of any one of the judges of the supreme court.
If the jury, under these instructions of the court, should find it necessary to consider the question of damages, the rule would be that the jury should allow to the plaintiff such just and reasonable sum, as compensation for the injury, for the pain and. suffering [924]*924he has undergone, and the expenses, etc., he has incurred in consequence thereof, as under all these circumstances of the case they think he may fairly be entitled to receive from the defendant.
NOTE. A recovery may be had though the passenger was not in the usual passenger cars. Philadelphia & R. R. Co. v. Derby, 14 How. [55 U. S.] 468. Edgerton v. New York & H. R. Co., 39 N. Y. 227; Galena & C. U. R. Co. v. Fay, 16 Ill. 568. If a person enters the saloon car of a freight railway train, and, when .the train starts, without being requested or directed to leave, remains there as a passenger, contrary to the rules of, but with the knowledge of the conductor, who receives from him the usual fare of a first-class passenger, the railroad company incurs the same liability for his safety as if he were in their passenger train. Dunn v. Grand Trunk Ry., 58 Me. 187. Consult, also, Bridge v. Grand Junction R. Co., 3 Mees. & W. 244; Stokes v. Saltonstall, 13 Pet. [38 U. S.] 181; Galena & C. U. R. Co. v. Jacobs, 20 Ill. 478.
[See Case No. 6,276.]
The jury failed to agree.»