Carr v. River & Eureka Railroad

Garoutte, J. —Respondent recovered five thousand dollars damages for personal injuries, claimed to have been sustained by her through the negligence of appellant, and this appeal is prosecuted from the judgment and order denying a motion for a new trial. The first count of the complaint relies for a recovery upon the theory that plaintiff, a passenger, was not allowed a reasonable time to alight from the train at Rhouerville, her point of destination, but that appellant negligently and carelessly started the train while she was upon the steps of the coach, preparatory to alighting, and thereby threw her to the ground, causing permanent injuries.

The second count of the complaint is based upon the allegations that appellant negligently carried its coach in which she Avas seated beyond the platform for the use of passengers alighting from the cars at said station, and stopped the said coach at an unsuitable place for passengers to alight therefrom; that respondent attempted to alight, but appellant failed to allow her a reasonable time within which to do so, and while she Avas upon the steps of the coach, attempting to leave the train, the coach Avas started, she was thrown to the ground, and the injuries received. The answer denies negligence upon the part of the railroad company and alleges contributory negligence upon the part of the respondent, in this, that she attempted to alight from the train while it was in motion, and after it had started from the station. There was some evidence offered by appellant tending to support its contention, in this regard.

It is claimed that the law is not properly declared in instructions 6 and 7, which read as MIoavs: —

“6. It is the duty of the carrier of passengers to stop the train a sufficient length of time to enable passengers to alight in safety, and to hold the train still during such time. It is negligence for the carrier to start the train Avithout warning passengers after making such stop, and before the passenger has had a reasonable time to leave the car. Should the carrier start the train while the passenger is on the steps of the car, in the act of alighting, Avithout giving sufficient time to alight, and without giving notice to the passenger, Avhereby the passenger is thrown from the car and injured, then the carrier is [370]of negligence, and is responsible in damages for all the injuries caused the passenger by such negligent act.

“ 7. Should yon find from the evidence that on the fourth day of May, 1890, plaintiff was a passenger on the train of defendant from Alton to Ehonerville station, that the train was stopped on its arrival at Ehonerville station for passengers to leave the cars; that immediately upon the stoppage of the train the plaintiff left her seat in the car, and went out upon the platform or steps of the car for the purpose of alighting; that the defendant started the train before the plaintiff had time to leave the car, and while she was on the steps of the car in the act of leaving it, without giving her notice or warning; and that the plaintiff was thrown from the car by its starting and injured without fault on her part, then, in that event, I charge you that your verdict must be for the plaintiff for the damages sustained by her, not exceeding the amount claimed in the complaint.”