McDonald v. Chicago & N. W. R. R.

1. Amendment ¡ increase oe damages. The allowance of an amendment to a petition, increasing the amount of damages claimed, was held not erroneous. 2. Railroad: duty to provide station accommodations. There exists a common law duty on the part of railway companies to provide reasonable accommodations at their stations, for passengers who are invited and expected to travel on their roads. 3. -If the station room is full, or if it is intolerably offensive by reason of tobacco smoke, so that a passenger has good reason for • not remaining there, it will j ustify his endeavor to enter the cars at as early a period as possible, and if in so doing he receives an injury from the unsafe and dangerous condition of the platform or steps, in a place where passengers would naturally go, the company are liable therefor, if the passenger used proper care, and violated no rule or regulation of the company of which he had actual knowledge, or which, as a reasonable man, he would be bound to presume existed. 4 Evidence: Carlisle tables : husband and wife. In an action fox- damages, by a husband and wife against a railroad company, for permanent injuries received by the wife, the Carlisle tables may be admitted to show the expectancy of the wife’s life, when it appears from the evidence that, by reason of sxtclx injuries, a servant had been, and probably would have to be, employed to do the work the wife had been accustomed to do. 5. Parties: husband and wife. Section 2771, of the Revision, changes the common law rule, that, in an action wherein the husband and wife were joined, for an injury to the wife, the recovery was limited to damages for that injury alone, and did not embrace the injury to the husband; and under said section the husband, in such aruaction, may join thereto a claim in his own right, and recover for the loss of services of the wife, occasioned by the injury. 6.-attorney who receives per cent of recovery. An attorney, who, by an agreement with his client, is to receive a portion of whatever amount shall be recovered, is not a necessary party plaintiff, and need not be joined as such. 7. Railroad: rules of company as to entering cars. Railroad companies are held to á strict accountability for the safety of passengers. To enable them to properly discharge this duty, they have power to make reasonable rules and regulations respecting the time, mode, and place of entering ears; and these, when known to the passenger, he is bound to conform to, and he cannot violate them by pursuing another course and hold the company liable for damages thus occasioned, though the jury may believe that an ordinarily prudent man might have adopted the same course. 8. -INJURY FROM DEFECTIVE PLATFORM : LIABILITY OF COMPANY as common carriers. In the present case, which was an action by a husband and wife against a railroad company, as common carriers, to recover damages for injuries to the wife, caused by defective steps to a platform to which the train had backed, and which was not the usual place for passengers to get on and off the cars, the jury should have been instructed to ascertain from the evidence whether the company had designated or set apart the platform in front of the depot as the place where it required all passengers to enter the cars: if so, and this was known to the plaintiffs, and they, in disregard of such requirement, in advance of time, and without any justification, sought to enter the cars at another place, and in so doing, met with the injury, then the company would not be liable as common carriers. 9.-But if, on the other hand, there was no such rule or regulation known to the plaintiffs, and they in good faith, and using reasonable care, were seeking to find and enter the cars, the company would be liable, as the plaintiffs would have a right to presume, that the platform and its approaches were in a safe condition. The authorities sustaining the foregoing principles collated by Dillon, Ch. J. 10. - GENERAL rule.' As a general rule, railroad companies are bound to keep in a safe condition all portions of their platforms and approaches thereto, to which the public do or would naturally resort, and all portions of their station grounds reasonably near to the platforms, where passengers or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go.

Appeal from JLinn District Court. Liability oe railway company for safe condition OF PLATFORM AT STATIONS, ETC.-This action IS brought to recover damages for an injury received by Mrs. McDonald, at Cedar Rapids, on the evening of January 3, 1867. The petition avers that the defendants are common carriers of passengers; that, on the 3d day of January, 1867,.at defendant’s station, in Cedar Rapids, Mrs. McD. (plaintiff) purchased a ticket entitling her to be carried from Cedar Rapids, Iowa, to Fulton, 111., and, that, “ thereupon it became and was the duty of the defendant to use due and proper care that the plaintiff should be safely placed in said train, and so to construct and keep in good repair the platform around the said depot and the steps to the same, that plaintiff could safely go from the platform to the carsyet the defendant neglected its duty in this behalf, “ so that the plaintiff, in going from the platform to the cars, fell through a step connected therewith, which defendant had negligently left in an unsafe condition, by reason of which fall she broke her ankle bone and was otherwise injured,” etc. Answer: 1. In denial. 2. That the injury was caused by the plaintiff’s own negligence. 3. That, before suit brought, “ plaintiffs sold and conveyed to one E. Latham'one-half of the claim in suit, who still owns the said half of said claim, so that the plaintiffs were not then, and are' not now, the sole real parties in interest in the action.” On the trial it appeared in evidence that the plaintiffs (husband and wife) had been on a visit at Cedar Eapids, and being desirous of going to their home in Wisconsin, procured tickets of the defendant, at its station in Cedar Eapids, and waited in the passenger room at the station until the arrival of the train on which they expected to take passage. The train arrived at 6.20 p. m., and left at 6.15 p. m. When the train arrived, the plaintiffs went to take their seats in the cars, and when about to step upon the train heard the announcement of “ twenty minutes for supper.” Mr. McDonald testified, that, about the time this announcement was made, “ the train started and moved back beyond the platform, and I told my wife we had better go back into the room till such a time as the train should come forward. She said “no,” she would rather sit down on the platform, or stand up there, as the room was so full of tobacco smoke that she could not stand it. It made her sick. I proposed to her that we should go back to the ears and get on, as it was cold. We started and walked on the platform toward the cars until we came to the west end of the platform, and in going down the steps, one of them being loose and out of place at one end, it gave way and came up between my legs, and threw us both on the track head foremost, down under the train.” Her right leg was broken, the left ankle sprained, and she was otherwise injured and long confined to her bed. Mrs. McDonald testified to the same facts. The evidence showed that the. accident happened when it was “ dusk, or getting ■ dark.” There was evidence tending to show care in descending the steps where the accident happened. Mrs.'McDonald was 59 years old and weighed about 200 pounds. There was evidence showing that the passenger depot, if not full, was crowded with foreign emigrants who were smoking. The plaintiff, Mr. Me-Donald, testified, “that it was thick with tobacco smoke, so much so that it was difficult for one to breathe, and my wife took more offense at it than I did.” Mrs. McDonald testified, “that it was so smoky that it made me sick,” and that this was the reason why she did not go back into the room, but went west along the platform to get aboard of the cars. The plaintiff’s son testified, “ that the depot was so full of people that his mother could'not get a seat, and that it was full of tobacco smoke, which was very offensive to her.” í This testimony as to the smoky condition of the room was allowed to go to the jury against the defendant’s objection. The defendant produced evidence showing that the steps where plaintiffs fell were about 300 feet distant from the door of the passenger depot; and that the usual place for passengers to get on and off the cars was in front of the passenger depot and the platform between it and the freight depot. The depot buildings, platform, steps, etc., are correctly indicated in the annexed diagram. Passengers to and from the Dubuque and S. W. E. E. depot usually pass over these steps. It was also shown by the defendant that it was customary when the train arrived, as in this instance, from the west, to run back so as to bring the baggage and express cars to a point opposite the freight depot, for the purpose of discharging and receiving baggage and express matter. This movement, on the evening on which the accident in question happened, placed the passenger coaches west of the west end of the platform, so that the nearest passenger car was about one car length beyond the steps at the west end of the platform. It was while the cars were thus standing, that the plaintiffs, without waiting for them to be drawn up to the platform in front of the passenger depot, started for them, walking the whole length of the platform, and in descending the steps the injury for which this action is brought happened. Defendant also produced evidence to the effect, “ that there was plenty of room to get on and off the trains from the platform; and that there was no necessity for any one to go down these steps to get on. Before leaving, trains always draw up in front of the passenger depot, and stop to take on passengers. The accident happened fifteen or ‘twenty minutes before the leaving time of the train. The steps are* not intended or used for passengers to get on the trains. The defendant asked the court to give the following instructions, viz.: “ 1. If the jury believe from the evidence, that the defendant, at the time of the alleged injury at the station at Cedar Eapids, was provided with a safe and suitable platform in front of, and. adjacent to, the passenger rooms of said station, so that passengers could safely and conveniently pass from said room to the trains, and that passenger trains stopped at said platform for the purpose of receiving passengers, and if said plaintiffs, in attempting to get upon said.train by a different and unusual way and at a different and unusual place, met with said accident, then the plaintiffs are not entitled to recover in this action. “ 2. That if the plaintiff Margaret McDonald attempted to enter said train at a place not prepared or designed by the defendant for receiving passengers on trains, there being no paramount necessity for so doing, and in making such attempt she received the said injury then her own fault contributed to the same, and the plaintiffs cannot recover. “ 3. The liability of the defendant as a common carrier did not commence as to the plaintiffs until the train which they were to take was drawn up to the usual place for receiving passengers, unless they were directed by some authorized agent of defendant to go upon the train at another and different place or before the train rea'ched the usual place. “ 4. If the jury believe from the evidence, that, .before the commencement of this action, the plaintiffs agreed with Mr. E. Latham, that, as the consideration for his services in this action, he was to have one-half of all the money collected in said action, then the plaintiffs cannot recover in this action.” Each of these was refused, and the defendant excepted. The court, after referring to the issues made by the pleadings, charged the jury as follows: “ 3. If you find from the evidence that E. Latham, the plaintiffs’ attorney, agreed to prosecute plaintiffs’ claim for one-half he may recover, that does not make such an assignment as to make it necessary that he should be a party plaintiff. “ 4. The principal question for you to determine is, by whose fault or negligence did the accident occur ? If one of the steps was loose and not nailed down, by reason of which the accident happened, it is such a want of care as would render the defendant liable, unless you find that the accident happened, or was contributed to, by the want of ordinary care and prudence on the part of the plaintiff Margaret McDonald. “ 5. It is for you to determine from the evidence whether the plaintiff Margaret McDonald used ordinary care and prudence in leaving the depot and going to the cars by the way and at the time she did, and by ordinary care is meant such care and prudence as an ordinarily prudent, person would exercise under like circumstances. “6. If you find that an ordinarily prudent person would not have gone down the steps of the platform where the accident occurred, but would have waited until the passenger cars were opposite the passenger depot, then the defendant is not liable. And if you find that the plaintiffs went' by a way which was not used or traveled over by passengers to enter the cars, and that a person of ordinary prudence would not have gone by that way, you may fairly infer that there was a want of ordinary care on her part. Passengers must exercise ordinary care in approaching and entering the cars. “ 1. If, however, you find that the defendant backed its train up to the place where it stood when the accident happened; that persons could conveniently and safely ápproach the train where it then stood but for the defective step, and there was no rule or regulation of the company prohibiting persons from approaching the cars by that way, and that an ordinarily prudent person would have approached the train by that way, the defendant is liable if the accident occurred by reason of the defective step.” ' ' * The defendant excepted to this charge. The jury returned for the plaintiffs a verdict for $2,000. A motion for a new trial was overruled, and judgment was entered against the defendant, from which it prosecutes the present appeal. The cause was submitted in this court on oral and printed arguments. * I. The court erred in allowing the plaintiffs to amend the petition so as to claim $3,000 instead of $499 damages. The affidavit (page 6) discloses the reason why the damages were originally laid at $499, and afterward increased. It was a gross abuse of the privilege of amendment on the part of the plaintiff", and an abuse of sound discretion on the part of the court in permitting it to be done. II. The court erred in admitting the answer of George McDonald to the fifth direct interrogatory as to the condition of the passenger room with respect to tobacco smoke, and also the testimony of Margaret McDonald and Alexander McDonald upon the same subject. The evidence was. no material or proper part of the case, and the fact of smoke being in the room, or that smoke was offensive to the plaintiff, or that the weather was cold, constituted no justification for the plaintiff’s to attempt to enter the train before its arrival at the proper place, and no valid or legal excuse or justifying necessity for their fault in going to the train by a route not prepared or intended for that purpose. Its only object and effect was to" prejudice the minds of the jury against the defendants. III. The admission of testimony as to the expectancy of the plaintiff’s life was error. This court, in Donaldson v. M. c& M. B. JB. Go. (18 Iowa, 289-90), held, that the admission of the Carlisle tables for the purpose of proving the expectancy of life of the plaintiff’s intestate was proper. But that action was brought to obtain compensation for a wrongful act producing death, and the value of the life in question was the rule or measure of damages. It is plain to be seen that such testimony is proper, as showing the probable length of life, and thereby establishing one very important element of its value in estimating the damage sustained by the estate of the deceased or his next of kin. But it seems impossible that it could give a jury any correct notion of the bodily pain, suffering, medical expense and loss sustained by a person who has sprained an ankle or broken a leg. IY. The court erred in not granting the motion for nonsuit on the sixth point contained therein, in giving the third instruction and in refusing to charge the jury as requested by the defendant’s counsel in the fourth paragraph of instructions requested. They all relate to the agreement established by testimony of the plaintiff, George McDonald, and made between him and his attorney, E. Latham. The testimony is as follows: “I agreed with Mr. Latham to collect the claim for fifty per cent; no collection, no pay; he was to have one-half of all he should collect; this agreement was made before the suit was commenced.” Upon these facts the suit should have been* dismissed, for two reasons. ' ' . 1. The agreement is champertous and contrary to public policju 2 Parsons on Cont. 766; Boardman db Brown v. Thompson, 25 Iowa, 487. And it appearing from the evidence that the suit is prosecuted under and in pursuance of a champertous agreement, the court ought not further to have entertained it. Barker ei al. v. Barker et al., 14 Wis. 131, 143; Well) v. Armstrong, 5 Humph. 379; Morrison v. Beadriok, 10 id. 342; Hunt v. Lyle, 8 Yerger, 142. 2. Latham being the assignee and equal and joint owner of the claim, was a real party in interest, and should have been made a party plaintiff. Revision, § 2757; Lewando v. Dunham, 1 Hilt. 114. In this case it was held, that, where an action was brought by an assignee of the original claimant, and the evidence showed that another person was to share in the proceeds of the judgment, the action should have been dismissed, although the assignment to the plaintiff was in writing and under seal. The plaintiff did not have the whole interest. V. The fifth and sixth instructions are erroneous in submitting to the jury the questions as to whether the plaintiff, as a passenger, had the right to leave the depot and go to the cars by the way and at the time she did; whether she had the option to go down the steps of the platform to reach the train, or wait until the cars were opposite the passenger depot, and also whether she had the right to go by a way which was not used or traveled over by passengers to enter the trains. The court instructed the jury that she had the right to do as she did; had the right to go to the cars by the way and at the time she did; had the right to go by a way not used or traveled over by passengers, provided that an ordinarily prudent person would have done so, or that she used ordinary care and prudence. The defendant insists, that its liability does not at all depend upon the question as to what ah ordinarily prudent person would do, or whether the plaintiff used ordinary care in doing as she did. If she had not the right to go when and where she did, then no degree of care and prudence on her part would render the company liable. This does not imply that she must be a trespasser or an unlawful intruder upon that part of the premises, but that in going there she disregarded the implied contract existing between herself and the company, viz.: to conform to all reasonable rules and regulations of the company for entering its cars. YI. The seventh .instruction lays down substantially the same rule as the fifth and sixth, with one exception. It declares, that the defendants are liable for the injury if an ordinarily prudent person would have approached the train by that way and if there was no rule or regulation of the company prohibiting persons from approaching the cars by that way. If -it is meant by the latter qualification that the prohibitory rule or regulation should have been a written or printed one, posted up so as to be brought to the notice and attention of passengers, in language prohibiting passengers to approach trains by that way, then we insist that it is not the law. It is not true, that passengers have a right to go to any and all places about the carrier’s premises, depots and vehicles, and at all times, unless prohibited by express rules and regulations, and thus increase the carrier’s liability. It is their duty to use and occupy such places as are appropriated and designed by the carrier for them, and none other, he having provided safe and suitable ones of which the plaintiff had knowledge. The jury unquestionably understood that an ordinarily prudent passenger might go wherever he saw fit, if he was not forbidden to do so by an express and positive regulation. YII. The court erred in refusing to give the first, second, and third instructions requested by the defend1 ant’s counsel. "We insist that these instructions were applicable to the evidence in the case, embody the principles of law appertaining to it, and should have been given. They concede what the law implies as the obligation of the company in its contract for carrying passengers, viz.: that it is the duty of the company to provide safe and suitable means of ingress to its trains, so that passengers can safely and conveniently pass from the station to the train,-and to stop its cars at the platform for the pur- ■ pose of receiving passengers. Having performed • these specific duties and obligations, the company is discharged from further liability as to the passenger who desires to enter the train. It has done all that the law requires, and is not liable for injuries to a passenger sustained in consequence of his attempting to get upon the train at a different and unusual place, instead of by the platform. There is also on the part of the passenger an implied contract that he will and does assent to all the company’s reasonable rules and regulations for entering, occupying and leaving the cars, and if an injury befall him by reason of his disregard of regulations which are necessary and proper to the conducting of its business, the company is not liable in damages, even though the negligence of the servants of the company concurred in causing the mischief. The regulation of the company for entering the ears by the platform was apparent from its existence and from having been placed there and used for that purpose, and if a passenger voluntarily disregards this regulation and attempts to enter the train by a different and unusual way, and thereby sustains an injury, he and not the company is responsible for it. Sullivan v. Phil, db Read. R. R. Go., 6 Casey, 234; Penn. R. R. Go. v. Zehe, 33 Penn. St. 318; S. C., 37 id. 420; Angelí on Com. Carriers, §§ 525, 527, 530. Till. The verdict is contrary to the evidence and the law. This action being founded on a breach of contract or duty on the part of the defendant as a common carrier, to provide safe means of access to its cars, so that the plaintiffs could safely enter them, and there being no proof of neglect in that respect, but on the contrary it being indisputably established that the defendant had provided safe and convenient means of access, the jury should have rendered a verdict against the plaintiffs. Angelí on Carriers, § 525, 527, 530; Sullivmi v. Phil. <& P. P. Go., 6 Casey, 234; Perm. P. P. Go. v. Zebe, 33 Penn. St. 318; S.-C., 37 Penn. St. 420; Frost v. G. T. R. Go., 10 Allen, 387; Todd v. Old Oolony P. P., 7 Allen, 207; Indiana Central P. P. Go. v. Iludelson, 13 Indiana, 325; Carolus v. Mayor, etc., 6 Bosw. 15; Porter v. O.de N. W. P. P. Go., 20 Iowa, 73; Railroad Go. v. Montgomery, 7 Ind. 474, 479.