Street v. Chicago, Milwaukee & St. Paul Railway Co. , 124 Minn. 517 ( 1914 )

Philip E. Brown, J.

Plaintiff’s action to recover damages for personal injuries was dismissed at the close of his evidence, and this is an appeal from an order denying his motion for a new trial.

Plaintiff entered defendant’s passenger train at a station in this state, for the purpose of assisting a lady passenger, himself, however, not intending to take passage, but to leave the car as soon as his errand thereon was accomplished. Entering the front end of the car, they proceeded to a seat near the middle, when, observing the train was in motion, he hastily passed to the rear vestibule, intending to alight, but finding this closed hurried back through the car to the front end, attempted to alight, fell and was injured.

1. Plaintiff was neither a passenger nor trespasser. One entering a car for the purpose of assisting an outgoing passenger, while there so engaged, is under implied invitation from the company; the extent of its duty, if without notice of his presence, being, in the absence of statute, to exercise ordinary care not to injure him while there or when attempting to alight. The train crew were without notice of plaintiff’s presence on the train; hence defendant owed him no common-law duty to hold the train either a sufficient or reasonable time to enable him to alight safely.

Plaintiff’s case, however, is not grounded on common-law negligence, but depends upon defendant’s failure to comply with the statutory duty — which under the evidence was for the jury — to stop “a sufficient time, not less than one minute, to safely discharge and receive passengers,” prescribed by G. S. 1913, § 4399; while defendant’s contention, adopted by the trial court, is that plaintiff’s right of recovery, if otherwise sustainable, is defeated by section 9010, which reads as follows:

“It shall be unlawful for any person other than a passenger or employee to get on or off, or attempt to get on or off, or to swing on, or hang on from the outside of, any engine or car or any electric motor or street car upon any railway or track, while such engine, car, motor, or street car is in motion, or switching or being switched. Every person who shall violate any of the foregoing provisions shall be punished by a fine of not more than ten dollars, and any sheriff, constable, or police officer finding any person in the act of violating any such provision shall arrest, take before a proper court or magistrate, and make a verified complaint against him for such violation.”

It may be conceded that, if plaintiff is without the former statute or the exception of the latter, he cannot recover; (for defendant’s duty, if any, lay in the first, and the second would constitute a bar under the doctrine that where one’s violation of law contributes directly and proximately to his injury he is remediless). The question, then, turns upon the inclusiveness of the term “passengers,” employed in both sections, as indicative of their scope and intended operation. The ordinary rules governing construction of civil statutes should be applied to the first, while the second, being penal, must be strictly construed. We think it clear that plaintiff was within the protection of the provision first quoted. It would violate ordinary rules of construction and be an unwarrantable assumption of legislative intent to hold — especially in view of the universal practice of persons assisting passengers in boarding trains, acquiesced in by carriers and for their benefit — that one not technically a passenger conld not found a claim of negligence upon violation of this statute. On the other hand, under the established rule of construction, it is equally clear that the legislature did not intend thus to restrict the exception of the latter section. The evident purpose was to prohibit trespasses upon engines and cars while in motion, a dangerous practice annoying to the companies, indulged in particularly in towns and villages. Were the purpose protection of persons lawfully on trains, passengers as well as others undoubtedly would have been included in the prohibition; for the same likelihood of injury exists as to both. We do not question the power of the legislature to exempt passengers from the inhibition of the statute; but the construction given must be reasonable and practical, and the intent should control though contrary to the letter, thus preventing absurd and unjust results, to be avoided unless the language used will reasonably bear no other interpretation. 3 Dunnell, Minn. Dig. §§ 8939, 8940, 8947. In the early case of United States v. Gideon, 1 Minn. 226 (292), it was held that a criminal offense should not he created by an uncertain and doubtful construction; and this rule has since been adhered to. See State v. Small, 29 Minn. 216, 218, 12 N. W. 703; State v. Finch, 37 Minn. 433, 34 N. W. 904.

In this connection we cannot be oblivious of the fact that, if this statute is to be read literally, it is openly and hourly violated. In East v. Brooklyn Heights R. Co. 195 N. Y. 409, 88 N. E. 751, 23 L.R.A.(N.S.) 513, it was held that a statute making it a misdemeanor for any person to get “on any car or train while in motion for the purpose of obtaining transportation thereon as a passenger,” did not apply to persons in good faith intending to take passage, but only to those endeavoring to obtain transportation contrary to the rules of the company.

“It is contended,” said Mr. Justice Gray, at pages 411, 412, [88 N. E. 752, 23 L.R.A.(N.S.) 513] “that the second subdivision of this section is applicable to plaintiff’s conduct. If this contention is correct, then an act of such common occurrence as to be almost a characteristic trait of our human nature, without distinction of class, or calling, is stamped with criminality. There is, probably, not an hour of the day, when the statute is not offended against by persons in boarding cars while in motion; if it has the meaning contended for. That the legislature ever intended such an application of its enactment, I do not believe. If there is any doubt as to the proper construction of the statute, then it should receive that which would not lead to unreasonable, if not absurd, consequences. Being penal in its nature, it should not be construed to be applicable to an act, otherwise innocent and natural, and of common occurrence; unless such a legislative intent is clear and unmistakable. If it be conceded that the general language, in which the legislative purpose is expressed, upon its face, raises a doubt as to what was intended, that doubt should be resolved in favor of a construction, which will accord with a just notion of what was to be forbidden.”

So also in Diddle v. Continental Casualty Co. 65 W. Va. 170, the court, construing a statute similar to ours, declared, at page 177 [63 S. E. 962, 966, 22 L.R.A.(N.S.) 779] :

“The statute is aimed at trespassers. It is penal and ought to be strictly construed. Passengers and employees are expressly excepted, because they are on the premises by invitation of the railroad company, and have right and frequent occasion to board trains.”

Authorities are cited in some measure supporting defendant’s contention. See Raben v. Central Iowa Ry. Co. 74 Iowa, 733, 34 N. W. 621; Young v. Chicago, M. & St. P. Ry. Co. 100 Iowa, 357, 69 N. W. 682, (construing an Illinois statute). But it is to be noted that the terms of the statutes there construed are of broader inclusion than ours, not even excepting passengers from their operation. They are not directly in point, and even if they were we would not be content to follow them.

3. Under ordinary circumstances, it is negligence to alight from a moving train; but, when the train does not stop long enough to permit those lawfully on board to leave it, one physically active, with freedom of motion unimpeded, cannot be held guilty of contributory negligence as a matter of law, for alighting when the train is slowly moving by the station platform. The same rules apply as in cases where persons, not trespassers, attempt to or board a moving train. Hull v. Minneapolis, St. P. & S. S. M. Ry. Co. 116 Minn. 349, 355, 133 N. W. 852; Butler v. St. Paul & D. R. Co. 59 Minn. 135, 142, 60 N. W. 1090; 1 Dunnell, Minn. Dig. § 1277. Under the proofs we hold the questions in this regard were for the jury.

Order reversed.

Brown, C. J., and Bunn, J., not having heard the argument, took no part.