Joseph McKenna

“ If the testimony of plaintiffs was true, the company did not observe even ordinary care; and which was the fact it was for the jury to decide, and their judgment in deciding could not have been embarrassed by a consideration of degrees of negligence or care.
The other contentions of the company we think do not require special comment. They are directed to the proposition, many times repeated, that the company owed no duty to Bigger, or else had observed it, and that Bigger had not used care either in avoiding exposure or in preventing an injurious effect from it. ”

“ The most important contention of the company is based on the charge of the court as to the degree of care required of the company. The court said that if Bigger's 'illness and subsequent death did not result directly from the negligence of the defendant, they [plaintiffs] would not be entitled to recover.' And, it was added, 'What, then, is negligence? It is the failure to do what a reasonable person would ordinarily have done under the circumstances of the situation, or the doing what such person, under the existing circumstances, would not have done. ”

“ The questions of fact must be considered as determined against the company by the verdict of the jury; that is, that Bigger was required to get off the train at Longview in a drenching rain, that the accommodations there were insufficient for the protection of passengers, that he could have been transferred to a coach attached to the train, but was not, nor was he told of it, and that the exposure resulted in his death. ”