Toledo, B. G. & S. Trac. Co. v. McFall

(Orally.)

In this case a petition in error is filed in this court to reverse the judgment of the court of common pleas of Wood county, the petition alleging the general grounds for error found in this class of cases, the case being one for the recovery of damages for personal injury. A motion forva new trial was filed in the court below, which was overruled, and the overruling of it is made one of the grounds of error. It is claimed that the verdict is against the weight of the evidence; that it is excessive, and that the court erred in refusing to give an instruction asked for by the defendant below, .the plaintiff in error here.

The case was brought by George W. McFall against the traction *363company, alleging- that on January 20, 1904, it was the owner of a line ■of railway, operating electric ears, between the city of Findlay in Hancock county and the city of Toledo, passing -through divers villages named ,in the petition, among which was the village of North Baltimore. It is said that the line entered. North Baltimore on its way north from the east part of the village on Water street, thence going north on Main -street. It is alleged that on the date named, the plaintiff was a passenger on one of the defendant’s northbound cars, having boarded the car as a passenger on Main street.in the city of Findlay, at about 3 o’clock in the afternoon, paid his fare to North Baltimore where he then resided; that he arrived at North Baltimore about 4 o’clock in the afternoon and that the car stopped on the south side of Railroad street at the intersection of Main street and said Railroad street, for the purpose of letting plaintiff and other passengers off; that the place where the car stopped was a regular stopping place for the letting off. and taking on of passengers; that a number of passengers alighted from the ear and plaintiff attempted to do so and thus incurred the injury which is made the basis of the action. x

About the same time, and before the car had fairly started, the conductor of said car, it is averred, in disregard of his duty as such, and ■without paying any attention to plaintiff and the othér passengers, and without stopping to see that they got off sáfely before said car was -again started, left said car and ran north bn the east side thereof to a' point on the east side' of Main street and immediately north of the main track of the Baltimore & Ohio railroad, where á derailing post is located, a distance of about a hundred feet from where the ear stopped, for the purpose of pulling the lever on said derailing post in case the way was -clear on said Baltimore & Ohio railroad, and allowing defendant’s ear to come north across the tracks' of said Baltimore & Ohio railroad. As soon as said conductor of said ear reached said derailing post, without looking back to his said car, although he then and there had a clear and unobstructed view of the same and of the rear end thereof on the -east side' and without giving plaintiff a reasonable and sufficient length of time to descend from said car, he pulled said lever and motioned to the motorman of said car to come ahead, and thereupon said car was immediately started. '

Plaintiff avers that 'he was an old man, somewhat feeble in health, .-and slower than'the ordinary person in his movements, of all which the said conductor had full notice and knowledge at the time plaintiff became a' passenger on said car at'Findlay and thereafter. The petition alleges that' at that time there was slush and snow and ice on the *364streets of North Baltimore and some had accumulated on the rear platform of the car; that he attempted to get off the ear on the right and east side of the ear, and at the rear end, where the other passengers who had preceded him had gotten off, and was carefully descending the steps of the car and about to step on the street, when the car was started as aforesaid, and he was thrown violently to the brick-paved street, thereby seriously bruising and wounding him on the head and on his shoulders- and back and hip, and thereby causing him to receive and suffer a severe physical and mental shock, and he claims damages for this in. the sum of $5,000.

lie alleges that all this was without fault on his part, and he says further that prior to the stopping of the car he notified the conductor that he wished to get off at said crossing and requested the conductor not to start the car until he got off safely; but that the conductor in disregard of plaintiff’s right and his said request and in disregard of his duties as such conductor, and, by reason of his negligence, caused plaintiff to be thrown from the steps of slid car and injured.

The answer, which I will not stop to read, denies any negligence on the part of the traction company and avers contributory negligence on the part of the plaintiff. •

The first question to be considered is whether the claim of negligence as against the defendant company is so far sustained by the evidence as to justify the finding of the jury in favor of the plaintiff. The jury rendered a verdict for the sum of $1,200, which the court below, in overruling the motion for a new trial, permitted to stand.

Among the items of evidence in the case was a deposition of the plaintiff, in which he testified as to his recollection of the transaction, and, among other things, 'he says that when he entered the car he was. helped into it by one or two parties named, and it appears also further in the deposition that the conductor himself rendered some assistance-in placing him in, or taking him to, a seat. He says:

“I told the conductor I guessed I would get off here and that I did not want him to start the car until I was off as I had seen several parties throwed there by the car starting before they were off.”

Now the latter part of this answer is of no consequence, but the statement that he told the conductor that he desired to alight from the ear at this place and wished to have sufficient time to get off, coupled with, the observation which was open to the conductor as to his age and condition, were fairly to be taken into account by the jury, as matters which invited the attention' of the conductor, to the necessity and duty of using proper precaution to avoid injury to the old man. He was. *365not altogether helpless, but while able to move about, to walk, and get on the car and probably to alight without assistance, his condition was still such that it would seem to demand something more than the attention that would b"e properly given to an ordinary passenger of younger years and greater physical capacity.

There is some disagreement in the evidence as to the precise manner in which the old man received his injury. The ear was started as he was either entirely off the car so far as his feet were concerned, or, while one foot was on the lower step and his hand still on one of the handrails in apparent attempt to steady himself in alighting. It does not seem to the court that it is of very much consequence what was the precise method in which he received the injury, if his fall was caused by the negligent starting of the car. Whether he had his hand upon one rail or the other; whether his feet were entirely disconnected from the car or not, are not matters of great moment, if he was still so in contact with the car with either hand or foot upon it that the sudden moving of the car was likely to throw him to the ground and cause an injury. It is not strange that witnesses do not remember such matters precisely alike. Not only may there be variations in memory, but opportunities for observation are not precisely alike. The witness who described Mr. McFall as falling backward and just before the fall having still one foot upon the lower step of the car, seems to have had better facilities for observation than the witness who testifies that the old man was entirely free from the car so far as his feet were concerned. There was one other witness who was not sure whether his feet were upon the ground entirely or not. But as I say, that is not of great moment. The main question is, whether the conductor used the care which should have been used by a conductor in charge of a car in the protection of the passengers upon his car, towards whom the company owed the duty of protection.

While the company was held to only ordinary care, that care should be commensurate with the circumstances and with the danger to be apprehended, and manifestly some higher degree of care, — not of a different kind but care commensurate with the danger, such as should be accorded to a man of infirm body and old age.

Ther'e is another question in this case. The plaintiff in error argues, substantially, that the fact that McFall was receiving a pension for total disability, is evidence of negligence on his part; that he ought not to have been traveling alone and unattended; that he was in . such condition that he should have had a constant attendant, and that the pension. would never have been allowed except for that necessity. *366That is a matter between him and the government. 'If he: has been receiving a pension for more than he would be entitled to, manifestly, the company ,could not recoup for that fact. It is but evidence bearing upon the question as to, the extent of his disability and on the claim of contributory negligence. But even if he were negligent in this respect as claimed, if the conductor knew the fact that he had no attendant and saw his condition, he was guilty of negligence -in not caring for him. We do not think that if before that time the plaintiff; had been guilty of negligence in entering the ear, it would be such contributory negligence as would bar a recovery, under the circumstances.

'Now, without going further'into the details of the’ease, so far as the question of negligence is concerned, it is sufficient for us to say that we think the verdict of the jury whs justified by the evidence. There was nothing to indicate to their minds that the old man failed to exercise such care as men in his condition of mind and body would ordinarily exercise under like circumstances, but on the other hand we think that the evidence did fairly tend to show that the conductor did not, pay sufficient attention to the condition of this old man and the difficulty he-might have in alighting from the car, and that the conductor too hastily notified the motorman to move ahead with the car.

The only question remaining is as to whether the court properly-instructed the jury, or properly refused a special request for instructions asked by plaintiff in error, and also as to whether the damages were excessive.

The defendant below gave three requests for instructions; two of them the court gave and we think that the charge of the court on the whole was sufficiently favorable to the defendant. The court charged as to what would be ordinary care; that is, he defined it. There was no instruction as to the duties of the railway company to its passengers, generally, but there was one paragraph defining the duty of the conductor as to a man of infirm body and old age. We think that it was a fair charge. So far as the refusal to give one of the three instructions is concerned, that request was so complicated that we think that the court was justified in its refusal as misleading to the jury, and. that in tlm second request asked and given, the defendant obtained all to which it was justly entitled.

It was urged upon the court, in oral argument and in brief, that the damages were excessive. This old man had been afflicted for many years, probably ever since his service during the war, with chronic diarrhoea, and one of the claims was, that that disease had been' very much aggravated by this injury, so that he was no longer able to control *367the action of his bowels. There is evidence given by the wife of McFall and also by a girl who was employed in the household that, ever since-the injury, his mind seemed to be affected seriously, and indeed, one of the physicians who testified in the case, says that he had delirium. The-extent of the injury is'not very easy to determine with exactness. The amount of pain that the man suffered, mental and physical, was proper to be considered by the jury in view of the general claim of damage, and in addition to all this there was a claim in the petition that he had incurred medical expense necessitated by the injury to the extent of $150. The doctor who testified as to services rendered after the injury, stated that his fees might amount to $200, although he was not very definite as to just the time of the treatment. Whether the estimate covered any service before the injury and not made necessary by it may be a question. Considering all the circumstances we see no reasons for disturbing the verdict upon the ground that it was excessive. Surely there is nothing to indicate passion or prejudice. It is true enough that the sympathies-of the jury might well be aroused by the circumstances of the case, but they do not seem to have been led into any extravagance in the assessment of damages. The judgment of the court is, that the verdict below should stand and the judgment of the court of common pleas be affirmed.