Fitzgerald v. Southern Pacific Co.

Plaintiff was injured on the ninth day of November, 1912, while leaving a Southern Pacific train at Madrone Station, in Santa Clara County, and defendant appeals from a judgment in her favor on account thereof entered pursuant to the verdict of a jury.

The first claim of defendant is of a variance between the complaint and the proofs of plaintiff, it being claimed that the complaint alleged only that plaintiff was thrown from the train and that this is not shown by the evidence.

Plaintiff’s cause of action as stated in her complaint is that while she was a passenger on defendant’s train, and when in the act of getting out of and off from its car and being still thereon, the said car was, through the negligence of defendant and its agents, servants, and employees, suddenly started without allowing plaintiff sufficient time to get off, and in further consequence of the insufficient alarm preparatory to starting the train and of the negligence of defendant’s «employees in running and conducting the train, the plaintiff was violently thrown therefrom to her injury.

The testimony shows that Miss Fitzgerald was a passenger on a train of the defendant from San Jose to her home at Madrone Station on the day of her injury; that she was sitting in the rear coach about one-fourth of the way back from its front door when the train stopped at Madrone; that the train stopped there for a very brief time, the brakeman being ready to give the signal to start the train when it stopped, and no warning being given her of 'the starting of the train; that when she knew the train had stopped at Madrone she left her seat and walked as fast as she could to the front platform of the coach; and that when she got

Carriers of passengers must use the utmost care and diligence for their safety and are liable for injury caused by their slight negligence. The relation between carrier and passenger continues until the passenger has alighted. The carrier must exercise as high a degree of care in affording passengers reasonable opportunity to alight in safety as in carrying them safely. (Maxwell v. Fresno City Ry. Co., 4 Cal. App. 746 , [ 89 Pac. 367 ].)

It was conceded upon the oral argument that there was sufficient evidence to warrant the jury in finding negligence on the part of the defendant in not stopping its train for a sufficient length of time to enable the plaintiff to depart therefrom in safety. The facts which it is claimed establish negligence of the defendant and contributory negligence of the plaintiff are interwoven. The questions are questions of fact for the jury. (Carr v. Eel River etc. R. R. Co., 98 Cal. 366 , [ 21 L. R. A. 354 , 33 Pac. 213 ] ; Raub v. Los Angeles etc. R. R., 103 Cal. 474 , [ 37 Pac. 374 ].)

In the former case the supreme court said: “It is the duty of a railroad company to stop its train at a station for a reasonable time, in order that passengers may get on and off its cars with safety to themselves, and if it fails so to do, and injury results to passengers from the starting of the train while passengers are alighting, the company is guilty of negligence, and is responsible in damages for such injury. A common carrier of passengers for hire is bound to use the greatest care and diligence in their transportation consistent with the carrying on of his business. The act of a passenger in jumping from a moving train is not negligence per se, but it is for the jury to say under all of the circumstances of the ease whether the act of jumping was justifiable or not; and if the passenger jumped when carried less than one hundred feet beyond the station after an attempt to alight at the station, where there was no sufficient time to alight with safety and there is no evidence as to the speed of the train at the time of jumping, it is proper to instruct the jury that if they find that the train did not stop a rea

In the latter case the rule was stated substantially thus: “It is the duty of a railroad corporation to afford a reasonable time for passengers to alight from its cars at the station to which it has assumed to carry them, and if a passenger is injured while attempting to alight at such station, by reason of the sudden and unannounced starting of the train, the burden is thrown upon the company of showing that the injury was not the result of its own act or negligence.

. . . Where it appears that when the train reached the station it stopped a short distance beyond the platform, and that while the plaintiff was in the act of alighting, and when he had reached the lower step of the car, the train started without any warning, throwing plaintiff to the ground, which caused the injuries for which the action was brought, the facts do not prove contributory negligence per se, but the question of the plaintiff’s negligence should be submitted to the jury.”

These are plain statements of a simple rule of law. It is not necessary to analyze the facts out of which they arose in order to understand them. In the Raub case the plaintiff was shown to have jumped from the train while it was moving; but no real distinction is made in the application of the rule between jumping from a moving train and stepping therefrom. The rule applies to both sets of facts. That these questions are questions of fact is not only the settled rule in California, but while particular circumstances may, in some eases, justify the court in declaring as a matter of law that a passenger is negligent in alighting from a moving train, the general rule is that whether or not alighting from a train when it is in motion constitutes contributory negligence is a question of fact for the jury to determine in view of all of the circumstances of the particular

Here there are no particular circumstances which take the case out of the general rule, and the trial court properly left the question of negligence and contributory negligence to the jury.

The appellants rely upon three eases which they claim are in conflict with the two cases last above cited. These cases are Campbell v. Los Angeles Ry. Co., 135 Cal. 137 , [ 67 Pac. 50 ]; Craven v. Central Pacific R. R. Co., 72 Cal. 345 , [ 13 Pac. 878 ] ; Joyce v. Los Angeles Ry. Co., 147 Cal. 274 , [ 82 Pac. 204 ].

Campbell’s case was a clear case of due care on the part of the carrier, a street-car company, and of negligence on the part of the plaintiff. The plaintiff asked the conductor to stop the car so that he might alight. The conductor did not hear his first request. He repeated it and the conductor then heard it and took steps to stop the ear, at the same time admonishing him not to alight until the car had stopped. The passenger did leave the car before it stopped and, in doing so, was injured. The court found that the plaintiff was negligent in so doing, and that his negligence was the sole cause of the injury. It will be noted that the court found from the facts of the ease that the sole cause of the injury was the negligence of the plaintiff. The defendant’s employee was doing all he could to comply with the request that the car be stopped. In defiance of the warning not to do so, and when he had no excuse, as his request to stop was being complied with, he stepped open-eyed into the danger by which he was injured.

In the ease of Mrs. Craven the court stated the problem thus: “The whole evidence revolved around this one question, Did the plaintiff, at the very time of the accident, negligently jump off the train while it wras moving, and thus cause or contribute to the injury Í If she did not, then the verdict should have been for plaintiffs. If she did, then there can be no doubt that her negligence contributed proximately to the injury. ’ ’ It will be noted that in stating the problem the court incorporated the idea of negligence in jumping off the train while it was moving, thus importing that it might be possible to get off a moving train without negligence. The jury found a verdict for the defendant in that

In Joyce v. Los Angeles Ry. Co., 147 Cal. 274 , [ 82 Pac. 204 ], the plaintiff asked the conductor to stop at Hewitt Street and he told her that he would do so and that Hewitt Street was three blocks farther on. .While the conductor was on the street in front of the car, according to custom, signaling the car on its crossing a steam railroad track, the plaintiff, without notice to or knowledge of either conductor or motorman that she intended to leave the car, alighted therefrom two blocks before reaching Hewitt Street and on the wrong side, and in consequence thereof was injured. She was warned by one of the passengers not to get off the car as it was in motion. She had no reasonable excuse for leaving the car. The jury found against her and the supreme court held that this finding was sustained by the evidence. In both this case and Campbell’s case the car was not yet stopped and in each of these cases the official of the car had been asked to stop it at a certain point by the passenger who was injured, and the passenger left the car while in motion and before the motorman had an opportunity to comply with the request to stop the car. In each case it was held that the carrier was not negligent. It is true that the court employed some general language in both the Joyce case and

These cases are thus seen to be reconcilable with Carr v. Eel River etc. R. Co., and the Raub case, supra, which are therefore held to state the rule in California. In all the cases cited by appellant on this point the carrier was either found to have been guiltless of negligence or particular facts sustained a finding that under all the circumstances plaintiff was negligent in getting off the moving train. It is nowhere held that leaving a moving train constitutes negligence per se, and the cases cited by defendant in support of the contention are all thus seen to be either causes which particular facts took out of the general rule, or where tile court found “negligence” in getting off the train while it was in motion, which upon all the facts is tantamount to a finding of contributory negligence. In this case it does not appear

It is claimed that the damages awarded by the jury were excessive. The verdict was for five thousand dollars. As a result of her fall the plaintiff, who prior thereto was an able-bodied woman performing the housework for a family, was rendered helpless, requiring the constant assistance of others. She was in a hospital for a long time and suffered great pain from the injury. The trial occurred over two and one-half years after the injury, and during all the time between the injury and the trial the plaintiff was in constant pain. She was unable to walk except with crutches at the time of the trial. Her broken hip had not united, and to all appearances her condition will be permanent. Her hospital bills and the services of one among several doctors whose services were necessary cost her $527. We cannot say under these circumstances that the amount of damages awarded by the jury was excessive.

Many complaints were made of instructions given by the court and of the refusal to give instructions requested by the defendant; but an examination of the instructions as a whole discloses no reason for a reversal of this case. Without reciting the various instructions, it may be said that of those given by the court number 5 was copied substantially from Carr v. Eel River etc. R. Co., 98 Cal. 366 , [ 21 L. R. A. 354 , 33 Pac. 213 ], and correctly stated the law; numbers 8 and 9 were based upon the theory that Miss Fitzgerald was thrown from the car, and while perhaps not applicable in this ease, nevertheless could not have misled the jury, as the evidence on that point was perfectly clear; numbers 10 and 11 correctly stated the law; and number 12 was generously fair to the defendant. Number 16, which is criticised because of its assumption that the plaintiff’s nervous system was shocked by her injury, is not objectionable on this score, because the evidence beyond question shows that her nervous system was shocked and injured.

The instructions requested by defendant were correctly modified by the court and those refused were properly refused ; for example, as originally presented, defendant’s requested instruction number 5 directed the jury to find a verdict for the defendant if Miss Fitzgerald was injured in any

The criticism of other instructions is not sufficiently important to require mention.

Judgment affirmed.

Kerrigan, J., and Zook, J., pro tem., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 31, 1918.