Cashin v. Graham & Morton Transportation Co. , 160 Ill. App. 160 ( 1911 )

Mr. Justice Clark

delivered the opinion of the court.

It is urged by the Transportation Company that this case should be reversed, because the evidence does not show any legal liability on the part of the appellant ; because the evidence does not sustain the allegations of the declaration; because the evidence varies from the allegations in the declaration as to the manner of the appellee’s injuries; because the court erred in refusing to give three instructions proffered by the appellant; because the court erred in refusing to give the jury a peremptory instruction to find the appellant not guilty; and in denying the motion in arrest of judgment.

In the view we take of the case, the refusal of the court to give the jury a peremptory instruction to find the defendant not guilty is the only one that needs to be considered. Reference to the foregoing statement will show that neither in the declaration filed in this suit, nor in the evidence offered to sustain the same, was there any allegation of any mismanagement of the boat or any specific negligence of any employe of the boat. The negligence complained of is that the Transportation Company did not furnish “some means or contrivance wherewith and whereby she could ascend to and descend from said upper berth.” It cannot be said that this failure on the part of the Transportation Company was the proximate cause of the accident. The time was the evening. The boat arrived in Chicago at 10:30 p. m. Her mother retired in the lower berth. The plaintiff did not ask any employe of the boat to furnish her with a ladder or other means of getting into the upper berth; she did not attempt to summon any attendant, and apparently did not even ask her mother to assist her in getting to the berth, but undertook to do so herself without assistance. It does not appear that there was any unusual motion of the boat, whether caused by the negligence of the Transportation Company or otherwise.

In our opinion the injuries were the result of a mere accident from which the plaintiff, if she had used proper care, could have shielded herself.

Our attention is called by the appellee to the case of the Pullman Palace Car Co. v. Fielding, 62 Ill. App. 577. This was a decision of this court rendered in February, 1896. Fielding was sick and returning to his home. He tried to secure a lower berth but was unable to do so. He was promised by the conductor of the sleeping car and by the porter that the porter would be at hand at all hours of the night to attend to him. The porter showed him how to ring the bell. About the middle of the night he was awakened by violent pains, and wishing to get down from his berth rang the bell repeatedly but no response came. After endeavoring for twenty-five or thirty minutes at intervals to get the assistance of the porter by ringing the bell, he undertook to get down alone, and as he was doing so the car lurched as if starting to go around a sharp curve, and came back with a sudden jerk, which loosened his hold and threw him out of the berth and across the passage-way, or aisle. The court held that it was the duty of a sleeping car company, which furnishes upper berths, to have steps or other mechanical contrivances to assist a person occupying such a berth to alight from it without danger when the car is in rapid motion, and if steps are furnished, which is usually the custom, that servants be employed to bring them to the aid of the passenger, and in the night time such servants should be awake and ready to respond to the ring of the bell provided to call them. “It is not alone the undertaking of such company to provide a bed to sleep in, but also reasonably safe means of getting into and out of the bed.”

This case goes as far as any we have been able to discover in holding sleeping car companies and vessel owners, who provide sleeping accommodations for passengers, to the duty of providing suitable means for passengers in getting into and alighting from upper berths. It may be and probably is the law that under such circumstances a ladder or steps should be furnished, and perhaps an attendant to assist the passengers.

In the case before us, however, there is no showing that the vessel did not have such ladders and steps. Nor is there any showing but that it would have furnished one of these contrivances to the plaintiff in this case if it had been requested to do so. We hold that it was the duty of the appellee when she found that there was no ladder in the room to demand of the officers or attendants upon the boat that one be furnished to her, and if she required assistance in getting into her berth that she should have asked that an attendant be sent to her.

We find neither in the declaration in the case nor in the evidence produced at the trial, any charge or proof of negligence of such a character as would render the defendant liable.

Judgment reversed with finding of fact.