dissenting.
This action was brought by the defendant in error against the plaintiff in error to recover for personal injuries sustained by her in alighting from the plaintiff in error’s train. On the trial of the cause the jury returned a verdict in her favor for the sum of $5,000, upon which judgment was rendered. The first objection is that the proof does not sustain the charge in the petition. The petition is as follows;
*661“Plaintiff for cause of action says that Charles E. Casey is her duly appointed, qualified, and acting guardian under appointment of the county court of Pawnee county, Nebraska.
“ 2.' That the defendant is a corporation duly organized under the laws' of Nebraska, and is a common carrier of persons and property for hire; that it owns and operates a railroad from the city of Lincoln through Cushman park, a station on the line of said railroad.
“3. That on the 5th day of July, 1889, the plaintiff purchased of defendant a ticket entitling her to a passage on its cars from Lincoln, Nebraska, to Cushman park; that plaintiff thereupon entered and became a passenger on the cars of defendant on said railroad and rode therein to said Cushman park station; that upon arriving at said station she started to alight from said train, and while so attempting to alight the defendant negligently and carelessly, and without giving plaintiff sufficient or reasonable time in which to alight, started its said train, whereby plaintiff was thrown violently to the ground without any fault or negligence on her part; that by reason of her being thrown to the ground as aforesaid, plaintiff was permanently injured, in that her leg was broken, her body bruised, and her spine injured; that by reason of her said injuries plaintiff was sick for several months, and necessarily expended for physicians’ services the sum of $300, and her health has been greatly and permanently impaired, in all to her damage in the sum of $15,000. Wherefore the plaintiff prays judgment against the defendant for the sum of $15,-000 and costs of suit.”
There is a great conflict in the testimony, but the following facts appear to be sustained by the weight of the evidence. The defendant in error at the time of the accident was about seventeen years of age. She was a passenger on the train for Cushman park, about three miles from Lincoln. She was in the last car in the train and was sitting *662in about the fourth seat from the front end of the car. The train was crowded with passengers, there being a number standing in the aisle in the last car back of the defendant in error. The conductor had not completed gathering the tickets when Cushman park was reached and- did not go out of the car, but trusted to • the brakeman to stop and start the train. The defendant seems to have risen from her seat when the train stopped and looked back towards the rear end of the car as though she would have gone out that way, but seeing the passage way blocked with passengers she went out of the front end of the car, alighting after it had passed the platform, and was very severely injured. If the plaintiff in error is liable the judgment is not excessive. But it is said that the testimony does not support the allegations of.the petition. The defendant in her testimony says:
I got on the train. I bought my ticket at the B. & M. depot and got on the train. I had not rode very far until the conductor came and took up the ticket. He said something when he took up the ticket; he seemed to be vexed. I can’t state just what he said, but he said he did not see why people bothered the company in riding such short distances ; he did not see why there were not teams to take people such short distances in the country; he did not see why people should bother the B. & M. to stop at such places as Cushman park, because there was no station there. That was all he said, and I did not think anything about it, as I have heard other ladies say he had made the same remarks to them. I rode until I got to Cushman park, and as I got to Cushman’s house, a white house this side of Cushman park—
Q. How far?
A. I should think it was a half of a quarter or a quarter of a mile. I raised up just about like that (witness raising up in chair and leaning forward) to look out towards the park to see — I expected to see Mr. Beerup’s little children. *663They had told me that day that my brother had been sun-struck and was real sick, and that was the reason I wanted to see him, and why I looked out, but I did not see them. So I supposed I could get off all right, so when the — when I supposed the train had stopped I walked out to the front. I was in the last coach, and I walked to the front of the coach and looked behind me and seen the conductor talking *to some one, and the aisle seemed to be filled with men as I looked back behind me. I think it was about the fourth seat from the front, and when I looked behind me I seen he was standing there, so I just went right out.
Q,. Which”way did you go out?
A. The front of the coach.
Q. How fhr did you sit from the front door ?
A. About three or four seats back. I can’t remember which, I think it was four. I went out, and just as I was going, before I opened the door, I looked through the door and I could see, through the glass door, the brakeman — X could tell it was the brakeman by his cap, and just as I got out I looked down and I seen the platform just as I got out of the door. I don’t remember looking toward the platform any more; I remember looking down at my feet where I was to step. I stepped one step, aud as I stepped the other step — the wind was blowing real hard — and I raised my foot, and as I stepped, I did not step on the platform and it threw me to the ground. I laid there until some one came and picked me up. I don’t remember seeing the platform after I took the second glance out; I seen the*step when I stepped and then I stepped right off in the air.
Q,. When did you first discover that the train was moving — that is, if it was moving?
A. I did not know that the train was moving; I did not realize that the train was moving at all; I supposed it had stopped.
O. Had it stopped prior to this time?
*664A. They said it had, but I could not state that it had ;. I have no knowledge of the train stopping whatever. So I was picked up and the train went on, and I remember the train backing back, and I remember the conductor saying after they had carried me to the stile, he said, “ If I had known you was on the train and wanted to get off I would have been glad to have helped you off.” He seemed-to be very sorry that I was hurt.
Q. Did the conductor get out of the car when the train stopped? I don’t mean when they backed up.
A. No, sir; he was standing right there talking to the men.
Q. Did you not see either the conductor or the brakeman on the platform?
A. No, sir; I expected one or the other to help me off,, it was quite a step, but I remember him saying if he had known it, he would have been glad to help me off. There was a physician on the train that said my ankle was broken.
On cross-examination she testifies:
Q,. What did you have in your hands ?
A. A parasol, that is all.
Q,. Did you let go of that railing?
A. Yes, sir; I can’t say; of course, I suppose as I stepped — yes, I let go of the railing just as I stepped.
Q,. Did you get down more than one step?
A. I stepped one step; you know there is only two steps,, isn’t there, that is one step and then a step to the ground,.
Q. How many steps down did you go from the top ?
A. I can’t remember that.
Q,. You took hold of the railing with the left hand and' got off on the left-hand side of the train; that is, you took hold of the railing next to the car.
A. Yes, sir; there was a kind of a brass piece there.
Q,. The train was headed west and you got off on the-left-hand side of the train towards Cushman park?
A. Yes, the side that faces the gate; I don’t remember *665about the direction, I am always turned around about directions.
Q,. What I mean to say is — of course, we know when a train is going out of Lincoln that way is going west?
A. Yes, sir.
Q,. And you got off on the left-hand side?
A. Yes, sir.
Q. When you first got out there to the station, did you say you went back to the rear end of the coach ?
A. No; I raised up and looked back to the rear end of the coach, as I showed you a while ago'; I first looked out, then I looked up and seen the conductor standing there.
Q. He was back at the rear end taking up tickets ?
A. He was right in the center or near the center of the coach talking to some men, and I think the aisle was full and crowded with men; I think some of them were sitting with their feet in the aisle, sitting on the arms of the seats with their feet in the aisle. He was standing there.
Q. Is it not a fact now that you went back to get off that way; you went back to where the conductor was and saw that the aisle was crowded, and then turned and went to the front?
A. No, sir.
Q. Did you not so tell the conductor after you was hurt?
A. No, sir.
Q. And the other people that were there ?
A. No, sir.
Q. What did you mean by saying that you had no knowledge of the stopping of the car?
A. I said I supposed the train was stopped when I stepped ioff and that I did not know it was moving; if it was moving I did not know it.
Q,. You did not wait long enough to see whether it was going or standing still ?
A. No, sir; I supposed it had stopped, because I had *666only got to the outside and I thought it would stop long enough to let me off, but I don’t know that I thought anything about it, only I think now that I supposed at the time that it was stopped and I stepped off in the air.
A disinterested witness who was near at hand testifies that the train did not stop to exceed forty seconds; it appears from other testimony that the train had three other passengers who evidently were near the door or on the platform, and alighted from the train, and it apparently started again before the defendant in error had an opportunity to get off.' The testimony shows that the platform at Cushman park was 215 feet in length and about seven feet in width; that, it wras quite low down, not higher than the rails, if so high; that the wind was blowing quite strongly — almost a gale — so that it was difficult, apparently, for a woman to control her clothing.
The testimony of the plaintiff below appears to be truthful, and, fairly construed, amounts to this that the train stopped at Cushman park; that she had been informed that her brother had been afflicted by sunstroke; that she was very anxious to stop at the park and that as soon as the train stopped arose up from her seat, looked back and went out of the front end of the coach to leave the car; that she expected the train to stop for a sufficient length of time to enable the passengers to leave the train without undue haste, and as she started down the step of the car she saw the platform but was carried by before she alighted, although she was not aware of the fact until she fell.
It is the duty of the conductor of a railroad train to look after the passengers that wish to get on or off at the various stations along his line. (Thompson, Carriers of Passengers, 369.) He represents the company; is its authorized agent in all matters connected with the receiving and discharging of passengers as well as the subordinate servants of the corporation. The . company recognizes this obligation, and the conductor, in his testimony, after *667stating that the stop was longer than usual, about three minutes in all, says:
A. Yes, sir, it was longer than usual.
Q.» "Why ?
A. On account of the train being crowded and I not being able to get out and see the passengers get off myself, but I had my brakeman do it, and he did not know when they were all off exactly, and he thought he had given them ample time and did not see any more coming and he started the train.
Q. About how many passengers got off there, do you know?
A. I think there were five.
Q,. Besides this girl ?
A. Four, I think, besides the girl.
The brakeman did not know, he says, when the passengers were all off exactly, and started the train. This is evidence of negligence. (Bucher v. New York C. & H. R. Col, 98 N. Y., 128; Wood v. Lake Shore & M. S. R. Co., 49 Mich., 370; Brooks v. Boston & M. R. Co., 135 Mass., 21; Detroit & M. R. Co. v. Curtis, 23 Wis., 152, 27 Id., 158; Southern R. Co. v. Kendrick, 40 Miss., 374; Imhoff v. Chicago & M. R. Co., 20 Wis., 362; New Orleans, J., & G. N. R. Co. v. Statham, 42 Miss., 607; Milliman v. New York C. & H. R. R. Co., 66 N. Y., 642; Pennsylvania R. Co. v. Kilgore, 32 Pa. St., 292; Jeffersonville, M. & I. R. Co. v. Parmalee, 51 Ind., 42; Keller v. Sioux City & St. P. R. Co., 27 Minn., 178; Swigert v. Hannibal & St. J. R. Co., 75 Mo., 475; s. c., 9 Am. & Eng. R. Cas., 322; Wabash, St. L. & P. R. Co. v. Rector, 104 Ill., 296; s. c., 9 Am. & Eng. R. Cas., 264; Pennsylvania Co. v. Hoagland, 78 Ind., 203; s. c., 3 Am. & Eng. R. Cas. 436; Toledo, W. & W. R. Co. v. Baddeley, 54 Ill., 19; Fuller v. Naugatuck R. Co., 21 Conn., 557; Davis v. Chicago & N. W. R. Co., 18 Wis., 185; Paulitsch v. New York C. & H. R. R. Co., 26 Am. & Eng. R. Cas., 162; 2 Am. & Eng. Ency. of Law, 762.)
*668Had the conductor in this case done his duty there is reasonable ground to believe no accident would have happened. It may be said that the conductor delegated his authority to the brakeman, and that for that purpose he took the place of the conductor. It is sufficient to say that the proof fails to show that the plaintiff saw the brakeman, except at a distance. She did see the conductor on the same car with herself. He found fault with the inconvenience of stopping the train at that place. He had taken up her ticket but a short time before the train stopped, and it was his duty to see that she was permitted to leave the train safely. The train evidently stopped but a short time, not long enough for the passengers to alight safely, the testimony to the contrary notwithstanding. Where a conductor or person in charge of the train gives a signal to start while a passenger is obviously in the act of getting off the train the company will be liable if injury occurs. (2 Am. & Eng. Ency. of Law, 763 ; Swigert v. Hannibal & St. J. R. Co., 75 Mo., 475; s. c., 9 Am. & Eng. R. Cas., 322; Bucher v. New York C. & H. R. R. Co., 98 N. Y., 128; Keating v. New York C. & H. R. R. Co., 49 Id., 673; Mitchell v. Western & A. R. Co., 30 Ga., 22; Chicago W. D. R. Co. v. Mills, 105 Ill., 63; s. c., 11 Am. & Eng. R. Cas., 128; Conner v. Citizens S. R. Co., 26 Am. & Eng. R. Cas. [Ind.], 210; Eppendorf v. Brooklyn C. & N. R. Co., 69 N. Y., 195 ; Nance v. Railroad Co., 26 Am. & Eng. R. Cas. [N. Car.], 223; Straus v. Kansas City, St. J. & C. B. R. Co., 86 Mo., 421; s. c., 27 Am. & Eng. R. Cas., 170; 2 Am. & Eng. Ency. of Law, 762.) He testifies in regard to the plaintiff:
Q. Did you look out to see whether the lady got off?
A. The lady was a regular customer of ours and I supposed she knew enough to get off before the train started.
Q. How many times did she ever ride with you ?
A. A dozen times I guess; not less than a dozen and probably more.
*669Q. And you thought she could take care of herself?
A. Yes, sir, I thought so.
Here is self-confessed negligencé on his part. Here was a young girl, in experience but little more than a child, so far as appears, unaccustomed to travel, who had paid her fare to and desired to stop at the park, yet the man who had just taken up her ticket, and whose duty it was to see her safely on the platform, confesses that although in the same car with her and but a short distance away, he did not even look around to see if she had left the car. In the majority opinion great stress is laid upon the testimony of two or three witnesses called by the plaintiff in error as to the length of time the train stopped. The conductor had seven or eight tickets to take up and did not seem to have completed taking up the same when the train started, yet he testifies the train stopped three minutes, and some of the other witnesses for the plaintiff in error testify to substantially the same facts. That this testimony is not true is shown by all the circumstances of the case. The greatest distance any passenger is shown to have gone from the train when it started could have been traveled in much less than a minute — probably in one-half of that time. We must remember that these witnesses did not have any particular cause to note the length of time the train stopped— some or all of them evidently in conversation and probably scarcely conscious of the stoppage of the train; yet upon this kind of testimony it is proposed to establish a preponderance of the evidence against the verdict. The number of witnesses, where they have equal means of knowledge and are supported by all the circumstances of a ease, no doubt should have great weight in arriving at a verdict, but ordinarily testimony is not given weight by the number of witnesses who testify to a particular fact, but by the means of knowledge of the witness, his apparent fairness and freedom from bias, and the support of circumstances. Thus a passenger who desires to stop at a station *670and rises from his seat to leave the train as soon as it stops will know much more about what he did than passengers who have no interest in the matter and take no notice of so common an occurrence as a passenger alighting- from a train. The evidence of the first witness is positive and direct, while that of other passengers is negative and unreliable. Now in the case at bar the plaintiff below testifies, in substance, that she rose from her seat and went out of the front door of the ear, which could not have taken her more than half a minute, and in this she is corroborated by the circumstances heretofore spoken of. But there is another phase of this case which shows negligence on the part of the conductor and employes. In all parts of this country the rule is when a train approaches a station that a brakeman or some employe of the company appears at the door of the car, where passengers are expected to go out, and announces the name of the station. In most cases he opens the door as the train stops for such passengers as desire to leave to do so. In this case not only was this not done, but the conductor from the back part of the car called out the name of the station. This no doubt had a tendency to confuse the plaintiff below, if she was confused. The station being called from the hind end of the car, and no one appearing at the front end, she would be excusable if she supposed she was expected to get out there. Suppose either the conductor or brakeman had appeared at the front end of the car when the train stopped, and opened the door and called out the station, it is very evident to my mind that this accident would not have happened. That the plaintiff below was expected to go out at the front door of the car is shown from the fact that the brakeman walked along the platform from the hind end of the car to the front end, and apparently then signaled the engineer to start. The testimony, as I understand it, shows gross and inexcusable negligence on the part of the employes in control of the train. A great deal more testimony to the same *671effect could be stated, but I do not care to discuss the subject further. It is very clear that the testimony fully sustains the cause of action.
2. It seems to be admitted that the instructions are predicated on the proof, and therefore they need not be set out at length.
3. In regard to the injury, a number of affidavits were filed by the plaintiff in error in support of a motion for a new trial, in which it is stated, in substance, that the verdict is excessive by reason of the injuries not being severa These’ affidavits are exceedingly vague and indefinite and charge generalities and not specific facts. Dr. Crim, who has attended the defendant in error, testified on the trial as follows:
Q. I will ask you to describe what the injuries were.
A. The left ankle bore evidence of having been sprained; that is it was tender on the sides and was discolored about the ankle and for a distance of about five inches up the outer side of the leg. The point of greatest tenderness, however, was two and one-half inches above the ankle bone On the outer bone of the leg; at that point, on pressure, there was exquisite tenderness to the bone, going to show that the bone was cracked or partially 'fractured about two and one-half inches above the external malleolus, or the smaller of the two bones of the ankle. If she attempted to bear weight on the foot the foot turned in so that the ankle was not firm at all. The other injuries that she complained of at that time was some pain near the spinal column in the lower part of the back and she was also quite sick to her stomach ; the injury of the spine at that time I did not give any special examination as I was called to see the ankle and to dress it. I put a water-glass dressing on the leg, which remained for two or three weeks and was then taken off. I think that covers the ground of the first examination.
Q. I was going to ask you how you knew that the bone was broken?
*672A. In examining the bone the first thing that drew my attention to it was the pain in one spot. The discoloration also pointed to a severe injury having taken place there at a previous date. Then I placed my thumbs on the bone and grasped the limb firmly and pressed with the thumbs and the bones would give together, and took the other limb and it did not give to any such extent, showing that the bone was not as strong as the one on the opposite side. If the bone had not been fractured it could not give.
Q,. What kind of a fracture was it?
A. A green-stick fracture.
Q,. Why do you call it a green-stick fracture?
A. Because the bone was not fractured clear across so as to cause displacement. It is the kind of a fracture that you have if you bend a twig and the fibres break on one side and hold on the other.
Q. Did you make any other examination afterward a8 to the spine?
A. I was called a month or so later to see her on account of her spine.
Q. Tell the jury what observations you made and what examinations you made in regard to that injury.
A. The patient was complaining of a great deal of pain in the lower two-thirds of the spine and with difficulty in walking; the pain was so severe that it bothered her about locomotion. At that time I was called to give an opinion as to whether a cautery would give her relief.
Q,. Explain what a cautery is ?
A, The cautery used is a piece of platinum heated to white heat by means of benzine blown through it so that this white heat would strike the back probably forty times lightly so as not to destroy the skin deep but to destroy the outer part of the skin and produce irritation. The pressure on the spinal processes, that is, the tips of the backbone, showed marked tenderness; I was informed by her attending physician that this operation was followed by *673a. great deal of relief, but I did not see her again for two months, or not to examine her carefully anyway.
Q,. Go on and state what examination you made subsequent to that time.
A. The next time I was called was about the middle of October, or some three months after the time when I first saw her. At that time she was confined to the bed, and on being assisted out of the bed she could not walk without catching hold of something, she was then replaced in bed and the bed clothes thrown back over the lower extremities in such a way as to prevent her eye from seeing what manipulations I might make. I then took some steel pointers which we use for discovering whether a person has the natural sense of feeling pain, and found that she could not tell whether I had one or two points on any part of the leg below the knees, and I also forced the points of the pointer completely through the skin without any flinching or any sense of pain or reflex action on her part. I continued this examination, going above the knee, and when about half way between the knee and the hip, or one side of the thigh she began to show some signs of sensation ; a like sensation extended just above the middle of the hip, but beyond that point the sensation increased rapidly so that by tjie tíme I reached the region of the waist the sensation was about normal. The tenderness of the spine extended -up to about the neck; the entire region of the entire spinal column was tender, especially on pressure of the finger. I again applied the cautery from the neck clear down the whole length of the column. I saw her again in about a week and repeated the operation, and again about ten days later. At each subsequent cauterization I found the patient improved, so that at the third one she was able to walk fairly well and the sensation was nearly normal in the lower extremities; from that time I have seen her at periods varying from two weeks to three or four months up to the present time. I have repeated the cauterization at various *674times. Sometimes the relief would extend over three or four months and sometimes not so long as that. The sensation of the limbs has been about normal since the third or fourth cauterization, but the tenderness of the spine has never completely disappeared.
Q,. I would like to ask you if when a person receives a concussion of the spine it is always manifested immediately ?
A. Symptoms may be manifest immediately in a severe concussion; on the other hand it may be several weeks before any symptoms appear.
Q. Why is that?
A. The hurt may be inflamed, and the injury which gave rise to the inflammation may not be severe enough to cause the patient much inconvenience at the time, but the coagulation of the blood may continue to work injury to the case from that time on.
Q. When was the last time you examined the plaintiff?
A. I should say about four to six weeks ago.
The affidavits do not dispute this testimony, and in addition to being cumulative are wholly insufficient. In the majority opinion the rules as to negligence and gross negligence as heretofore established by this court are approved while the decision itself, in my view, practically overrules both. In a case like that under consideration the testimony should be submitted to the jury. If a court assumes to take testimony of this kind, where- the principal question is the credibility of the witnesses, away from the jury and pass upon its sufficiency, the provision of our constitution that “ All courts shall be open, and every person, for any injury done him in his lands, goods, person, or reputation, shall have a remedy by due course of law and justice administered without denial or delay,” is a glittering generality—meaningless verbiage of no force or effect. But I think we have not yet reached that point. I believe this is a meritorious case where the plaintiff below, with*675out her fault, sustained severe and lasting injuries, and that she is entitled to compensation for the same. Many other reasons could be given why this judgment should not be reversed, but because of the great length of this opinion they will be omitted. I fear the general rule established will be productive of great injustice, not only in this case but generally. In my view the judgment is fully supported by the evidence and should be affirmed.