Irvin v. Missouri Pacific Railway Co. , 81 Kan. 649 ( 1910 )

The opinion of the court was delivered by

Graves, J.:

The defendant contends that the plaintiff was guilty of contributory negligence, for the reason that he boarded a moving train. It is not necessarily negligent to get upon a moving passenger train; and, generally, whether it is negligent or not is a question for the jury. (Railway Co. v. Holloway, 71 Kan. 1; 3 Thomp. Com. Law of Neg., §§ 2995, 2996; Distler v. Long Island R. R. Co., 151 N. Y. 424; C. & A. R. R. Co. v. Gore, 202 Ill. 188; C. & A. R. R. Co. v. Winters, 175 Ill. 293.) In this case the question of contributory negligence was specially pleaded and relied upon as a defense. The general verdict finds in favor of the plaintiff upon all the issues presented. It seems too late, therefore, to raise this question now. The parties are concluded by the verdict.

The plaintiff did not intend to take the train until it began to move, when he determined to go. There was no time then to buy a ticket. The necessity was presented to get on the train immediately or forego the contemplated trip. He had the money with which to pay his fare, and he, in good faith, attempted to get upon the train as a passenger. He would have been inside the car in a moment had he not been stopped by Smith, who stood upon the step next above where the plaintiff stood. He was in no way responsible for the -obstacle presented by this other passenger. It has been the general practice of passengers in this state, when not prevented by the rules of the company, to board trains in this manner or any other manner which best suited their convenience, and this practice has been generally acquiesced in by railroad companies. No rules or regulations upon this subject were in force upon the defendant’s road at the time the plaintiff was injured. Under the circumstances here shown we see no good reason for holding that the plaintiff was not a passenger.

It has been suggested that the truck upon which the-plaintiff was injured belonged to the Pacific Express. Company, and the court was requested to submit special questions to the jury which apparently were intended to-establish that the express company not only owned the truck but also that it was used by that company upon that evening in delivering express- matter to the train upon which the plaintiff was injured. We are unable to see the importance of this evidence, or of the fact if established. The defendant owned the station, the platform and the track, and was operating a passenger train as a common carrier. It thereby became charged with all the responsibilities and liabilities imposed by law upon a common carrier of passengers, and could not avoid the duties thus imposed by permitting a third person to transact business upon its platform and negligently place dangerous obstacles where they would be liable to injure passengers whom it was the duty of the defendant to protect from danger. This train passed in the nighttime; the platform was dark; the plaintiff was not aware of the presence of this truck. It is the duty of a railway company to keep its platform reasonably clear and free from obstacles by which passengers are liable to be injured. This truck was left in the darkness, within five inches of the passenger car, and within a few feet from where it had just been used in loading express matter upon the train. This was negligence, and it must be treated as the negligence of the railway company, regardless of who owned the truck or whose employee placed it in a position dangerous to people on the passenger train.

The district court refused to give an instruction to the jury requested by the defendant which reads:

“The jury is instructed that the plaintiff contends that by reason of the fact that Albert Smith stopped on the second step of said passenger car he was prevented from getting upon said platform, and was consequently injured. There is no claim that there was any connection between the act of said Smith in remaining upon said step and the position of said express truck, and, as one person is not liable for the injury done by another unless they act in concert, the defendant would not be liable in this case if the accident was the result of Smith’s obstructing the plaintiff from getting upon said car.”

It is difficult to say what specific legal proposition was. intended to be presented by this instruction. The court might well have refused to give it because calculated to-confuse and mislead the jury. It is not clear and specific, as all instructions should be. With doubt and hesitation we assume that the intention of the instruction was to have the jury advised as matter of law that the proximate cause of the injury was Smith, and not the express truck. The cases cited in support of the instruction, however, would justify the inference that the intention may have been to have the court say to the jury, in effect, that the case ought to have been brought against Smith instead of the defendant. But whatever may have been the intention, we are unable to say that the court erred in refusing to give the instruction to the jury.

Objection has been made to an instruction given by the court upon its own motion which reads:

“It is the duty of the persons in charge of a passenger train, in starting and stopping such train at a station, to look to the safety of passengers, and not to start or stop such train in such a manner as to result in the injury of a person in getting on or off thereof and using proper care for his own safety.”

Under the evidence this instruction was not material.. The injury of which the plaintiff complains was not caused by the mere manner in which the train was. started, and the instruction might well have been omitted; but we are unable to perceive how the jury could have been misled or confused by it or how the rights of the defendant could have been materially prejudiced thereby, and we can not say that error sufficient to justify a reversal was committed by the court in giving it.

We do not find any material error in the case, and the judgment of the district court is affirmed.