Foss v. Boston & Maine Railroad , 66 N.H. 256 ( 1890 )

The motion for a non-suit for want of evidence to charge the defendants was properly denied. The plaintiff, without apparent fault of her own, was carried some distance — five hundred to seven hundred feet — beyond her destination to which she had a ticket, and was there hurriedly assisted from the car to the ground over steps the lowest of which was twenty-two inches above the ground. The injury she received in jumping to the ground was aggravated by being compelled to walk from her landing-place to the station. In the flustered state of her mind, and the fear of being carried beyond her destination, she did not notice the distance of the car step from the ground. She had a right to rely on the assistance offered by the conductor and brakeman at such a place, and if they failed to assist her from the car without injury, the fault was the defendants' and not hers. However this may be, the question of her own negligence or want of care was fairly submitted to the jury, whose verdict, under the instructions, has left her free from fault.

The case in principle is not different from Bullard v. Railroad64 N.H. 27, where the plaintiff was injured on leaving the train, the rear car of which, in which she was riding, not having reached the station platform. She was injured on leaving the car by steps about three feet from the ground. The plaintiff recovered a verdict, and the court, in the opinion, decided that "these facts were evidence from which a jury might find that the plaintiff exercised due care, in leaving the train at a place which she knew was a bad one for alighting, and, further, might find that the defendants intended she should leave at that place."

In that case the car step was fourteen inches farther from the ground than in the present case; but the plaintiff had no assistance in alighting, and the distance from the station platform was very much less. The question of the reasonable care of the parties was the same in each case. The defendants' first exception is overruled.

The defendants requested the instruction, that the plaintiff, enfeebled as she was, should not have attempted to get off the car at the place she did, but should have notified the attendant train hands of her condition, that they might have set the train back to the station, where she could have alighted on the platform in safety; that no notice being given them of her feeble condition, she cannot recover. Such a request was properly refused. It left out of sight the fact that, at the time, the train had passed the station platform a long distance, and that the step of the car from which she must jump was too high for a well person to step from safely. The request, too, leaves out of sight the flustered condition of the plaintiff's mind under fear of being carried beyond her destination, and the fact that until she struck the ground she was not aware that the car had passed beyond the station platform. The instruction which the court gave was sufficiently explicit. The jury were told that "if the place [where the plaintiff left the car] was suitable, and the defendants fully performed the duty they owed to the plaintiff, the defendants are not liable for any in jury the plaintiff may have received. If the place was unsuitable, and the plaintiff received injury in consequence, the defendants are liable therefor unless the plaintiff's want of care contributed to the injury. Was the plaintiff in fault for being left at that place, or for leaving the car without objection, or for not saying anything about her feeble condition? Was she induced to alight there by the defendants' servants? Did her want of ordinary care contribute to her injury?" These pertinent instructions and inquiries made to the jury were plain and explicit, covered the ground of the case, contained the settled law on the subject, and were sufficiently favorable to the defendants. The exception to the refusal of the defendants' request is overruled.

A special exception was made to the instruction, that, in determining the question of care exercised by the defendants and the plaintiff, the evidence that the plaintiff's husband informed Conductor Jefferson, at Rochester, that the plaintiff was feeble and would need assistance, and that Jefferson said he would notify the conductor who was to take the train at Conway Junction, and it would be all right, and that the plaintiff's husband so informed her, is material. Knowledge communicated to Jefferson was notice to the defendants of the plaintiff's condition, and she was not required to notify every other conductor and train hand on the train. A conductor who had charge of the train and the oversight of its passengers was the person to whom a knowledge of the plaintiff's health and need of assistance in leaving the train should be given, and the plaintiff had a right to rely on his assurance that he would inform the conductor beyond. The question was one of due and reasonable care. The plaintiff relied, and had a right to rely, on Jefferson's giving his successor the information about her condition. And if the conductor failed to bring her condition to the notice of the conductor who followed him, his neglect could not be charged upon the plaintiff. The defendants were as much affected by Jefferson's knowledge as they would have been by the same facts communicated to the superintendent or one of the directors of the road in season to have made use of them. The defendants had no reasonable ground of complaint on account of the instructions.

Judgment on the verdict.

CLARK, J., did not sit: the others concurred.