Sahlgaard v. St. Paul City Ry. Co.

This case turns chiefly upon questions of fact. The charge is that the defendant negligently started up the street car which plaintiff’s intestate was attempting to enter, and that, as a result of such negligence, he was thrown down, run over, and fatally injured. The answer alleges that the accident was occasioned by the negligence of the deceased in attempting to board the car while in motion, and that the defendant used proper diligence to prevent injury to him by stopping the car, but that, through his own negligence, and without any fault or negligence of the defendant, he slipped and fell, and received the injury complained of. This presents the principal issue in the ease. It is not necessary to refer to the evidence in detail upon this issue. There is some conflict in material particulars between the testimony in plaintiff’s behalf and that of the defendant’s witnesses; but the jury And specially that the train was actually “stopped, or substantially stopped, to enable Swenson to take the same,” and that it was then suddenly and improperly started by the negligent acts and conduct of those in charge while he was in the act of taking the same. A careful. examination of the record in the case leaves no doubt that there was sufficient evidence offered to sustain this finding. At the time in question the cars were proceeding down Seventh street in the city of St. Paul, and stopped as usual at the easterly side of Wacouta street, for the accommodation of passengers. It was the line Swensen usually patronized in going to and from his place of business. He was late, and failed to reach the car in time, but the conductor observed him coming for that purpose, motioned to him to come on, and also gave the driver the signal to stop the car. It is conceded that the car did stop about the middle of the block, opposite Adler’s store, where the injured man was taken from under the car wheels. But the parties differ as to whether it was stopped before reaching that point for the purpose of enabling him to get on; the defendant’s contention being that it had not previously stopped, but that he imprudently attempted to get on while the car was in motion, before it reached that point; while the plaintiff claims that it had previously stopped, and that it started up suddenly, while he was in the act of *235taking passage, and was thereafter brought to a stop at Adler’s, where he was taken from under the car wheels. But on this point the jury also find specially in plaintiff’s behalf, — that it had previously stopped to enable him to take passage; and this finding is also •supported by the evidence. The question of the contributory negligence of the deceased was submitted to the jury, and by the general verdict determined in plaintiff’s favor, and upon this question also the evidence was conflicting, and the verdict decisive. Several of plaintiff’s witnesses state that the car had stopped; that he had reached the forward end of the rear car, and seized the railings with his hands, had placed his left foot upon the step of the car, and, while in the act of raising his right foot to the same place, the car •started suddenly with a jerk, which threw him off, and whirled him •around, so that his legs were thrown under the car wheels. So much for the issues of fact. And the findings of the jury leave but little to be said on the legal questions raised at the trial. The request ■of the defendant to charge the jury that, if the plaintiff’s intestate attempted to board the train of defendant while in motion, and the •accident complained of was occasioned by such attempt, the plaintiff cannot recover, was a proper one; but, in view of the special findings of fact, its refusal by the court was not prejudicial to the defendant; and besides, the question of his alleged negligénce in attempting to board the ear was fully covered by the general charge, and fairly submitted to the jury. It is not necessarily a negligent act to attempt to enter a street car while in motion. That must depend upon the circumstances of each case. If it is moving slowly, •or is nearly stopped, its speed gradually lessening, it may be entirely ■safe. On the other hand, if it is running at its ordinary rate of ■speed, and especially if moving with accelerated speed, it is presumptively negligent to do so. And it is of course more dangerous to enter the front than rear end of the car; and, as a rule, the attempt to board cable or electric trains may be more unsafe than ■horse cars, because of the greater speed of such trains. It is ordinarily a question for the jury, and was so in this case. Eppendorf v. Brooklyn City & N. R. Co., 69 N. Y. 195; Jones v. Chicago, M. & St. P. Ry. Co., 42 Minn. 183, (43 N. W. Rep. 1114.) The following propo*236sitions were also given in the charge to the jury by the court, and excepted to by the defendant: After Mr. Swensen had been motioned to and invited by the conductor to come on and take the car, a duty rested upon those in charge of the train to exercise care and diligence to afford him a reasonable opportunity to come on and take the car, and, failing in this, they were guilty of negligence, for which a recovery may be had, provided he was not himself guilty of negligence contributing to the accident; and if they brought their train to a standstill, or practically so, to enable him to take the car, and-while he was doing this in a careful and prudent manner they suddenly and without warning negligently set the car in motion, whereby he fell in the attempt, and lost his footing, and was thrown down and injured, the plaintiff should recover. That these instructions were proper, under the evidence, is very clear. He had a right not only to expect that the car would be stopped, but that it would not be started till he was safely on board. Eppendorf v. Brooklyn City & N. R. Co., supra. No other exceptions require to be considered.

Order affirmed.

(Opinion published 51 N. W. Rep. 111.)