Szczepanski v. Chicago & Northwestern Railway Co.

Maushall, J.

The appeal presents for consideration the question of whether there was credible evidence tending to establish the affirmative of these propositions: Did appellant fail to exercise ordinary care in handling the car in which respondent was riding? Was the conductor in charge of the train so circumstanced that he ought to have known respondent was aboard the car? Did respondent exercise ordinary care for his own safety ? It is conceded, or must be, that if there be a fair conflict in the evidence or in reasonable inferences therefrom as to such questions, they were properly submitted to the jury and the findings are conclusive. The *183 burden, is upon appellant to show by tbe record want of sucb ■conflict. Tbe presumptions are against error, and pretty strongly so.

Tbe trial court considerately beld, twice, that there was room in tbe evidence to find either way in respect to each of tbe matters referred to, — once on tbe motion for a directed verdict and again on tbe motion for judgment after verdict. •Can we well say sucb holdings are clearly wrong ? They must be wrong, and so clearly that way as to leave no reasonable controversy in respect thereto, else, in conformity with a well established and, in general, very beneficial rule be now beld ■to be right. Tested by that rule it is considered that tbe decision below is not efficiently impeached by tbe record.

Tbe main controversy is over whether tbe conductor ought ■to have known respondent was aboard tbe car. It is conceded that, in case tbe conductor or station agent gave him permission to ride therein and be boarded the car pursuant thereto, tbe relations between carrier and passenger were established with all duties incident thereto as regards bis safety, if tbe conductor knew, or ought to have known, of tbe situation.

■ There was ample evidence tending to show respondent bad permission to ride in tbe car. True, be did not, in talking with tbe agent or conductor, use tbe words, I want to ride in tbe car with tbe horses. But it seems, when be said be wanted to ride with tbe horses, tbe fair meaning, — the meaning which would ordinarily be taken as intended, under tbe circumstances, — is, that be wanted to ride in tbe car with tbe horses. Moreover, tbe evidence that be was told that be would have to buy a ticket, indicates, clearly, that tbe agent and conductor knew just what be meant. Their statement that be would have to buy a ticket, meant no more to him than that riding with tbe horses would make no difference as regards paying for tbe ride. Respondent thought, evidently, that, as is usually tbe case, if be could not conveniently get a ticket and yet boarded tbe train it would be all right to pay later. Under *184 the circumstances in regard to the ticket, it seems clear respondent was not a trespasser on the train. The relations-between himself and appellant of passenger and carrier existed, notwithstanding he did not have a ticket.

Much significance is given to the fact that the verdict, as-corrected by the court, found that the conductor did not know respondent was in the car, but ought to have known of it. No-very great difficulty is perceived at that point. What the verdict evidently means is that the conductor did not see respondent enter the car, or see or hear him therein prior to the injury, hut ought to have known he was there prior thereto. There was evidence from which the jury were warranted in-making the latter finding.

The evidence shows that the conductor knew respondent wanted to ride in the car and intended to do so and went in the direction thereof immediately upon signing the transportation contract. The conductor must have known the desire to so ride was to enable respondent to care for the horses and’ that the time, above all others, when they would be liable to-need such attention, was when the car was being switched into-the train and during the first part of the journey, — the time-when they were required to accustom themselves to the strange-surroundings and method of being violently moved about.

No more need be said. It is considered there was evidence-to carry all the controversies in question to the jury.

By the Court. — Judgment affirmed.