122 Mo. App. 207 | Mo. Ct. App. | 1906
Plaintiff brought this action in the circuit court of Clinton county to recover damages alleged to have been sustained in consequence of the negligent act of defendant in suddenly starting a passenger train while plaintiff was in the act of alighting therefrom. A trial in that court resulted in a judgment for plaintiff, which on appeal we reversed and remanded on account of error in the instructions. [Bond v. Railroad, 110 Mo. App. 131.] After this, the cause was sent to the Grundy Circuit Court on change of venue where plaintiff filed an amended petition. On retrial the judgment was for plaintiff and again defendant appealed.
At the first trial the cause of action pleaded in the petition was restricted in its scope to the negligent act of defendant in suddenly and violently starting a train which had stopped at a station for the purpose of discharging and receiving passengers and thereby throwing plaintiff from the step of one of. the coaches while he was in the act of stepping therefrom to the station platform. In the amended petition now before us, this
The injury occurred about ten o’clock in the morning of October 4,1902, at defendant’s station in Lathrop. Plaintiff, a farmer, sixtv-four years of age but robust and vigorous, accompanied his married daughter to the station to assist her departure on the morning, train for St. Louis. She had just recovered from a severe illness, ■was weak and being burdened with heavy hand-bag'gage required assistance. The train stopped at the station about one minute, so the trainmen testify, and plaintiff and his daughter, the former carrying the baggage, immediately proceeded to the steps at one end of the coach provided, for women. A brakeman was stationed at that place and plaintiff says he was informed in effect that plaintiff’s daughter was bound for St. Louis and that plaintiff was not intending to become a passenger but was assisting her to the train. The brakeman told plaintiff that he might carry the baggage into the car. Plaintiff did this hurriedly and after depositing the baggage in the car returned without consuming any time in leave-taking. To this point the witnesses for plaintiff agree. They differ concerning the conditions that obtained at the time plaintiff received his fall. Some of them say that the train remained at a dead stop until plaintiff reached the last step and began his step to the station platform when it started with a sudden and very violent jerk. Plaintiff himself testified, “I noticed as I went to step off that the train was moving and then I stepped off and that is the last I remember. . . . Q. Where were you at the time you first discovered the train was
On the part of defendant the witnesses tell a different story. The braheman, who was standing near the entrance to the car, denies he was informed that plaintiff was not intending to become a passenger and supposing the opposite to be the fact was not expecting him to return from the car. All who were in the car admit that the old gentleman acted in a hurried and excited manner in entering and leaving it and did not remain therein longer than Avas necessary to deposit the baggage. They sajr, hoAvever, that some one had closed the car door after his entry and that his exit Avas momentarily delayed by his excited fumbling Avith the door knob in his effort to open the door and that the train started before he reached the car platform. There he encountered the bralcen) an Avho warned him against attempting to alight, but, unheeding, he rushed on and jumped Avith his face towards the rear of the train when it was running approximately at the rate of five miles per hour. Thus it Avill be seen there is a radical and irreconcilable conflict between the Avitnesses of the contending parties and Avithout going into details Ave find ample support in the facts and circumstances appearing in the record for each account of the injury.
Defendant urges, as it did on the former appeal, that plaintiff should not be permitted to recover under any reasonable view of the facts adduced. The argument advanced deals partly Avith principles of Iuav, but mainly rests on the assumption that defendant’s evidence so preponderates that it completely overwhelms that of plaintiff and requires us to reject the latter entirely and look only to the former for substantial facts. It is beyond the scope of our duty as an appellate tribunal to weigh conflicting evidence in jury cases. That function belongs exclusively to the triers of fact and
In giving plaintiff permission to carry a passenger’s baggage into the car, defendant became charged Avith the performance of a duty to him notwithstanding the relation of carrier and passenger did not exist between them. That duty required defendant to' hold the train stationary until plaintiff in the exercise of reasonable care and diligence could alight therefrom in safety. [Doss v. Railway, 59 Mo. 27; Yarnell v. Railway, 113 Mo. 570; Saxton v. Railway, 98 Mo. App. 494.] Under the facts, the existence of which we must assume, in the considera
Defendant complains of the action of the trial court in refusing its request for this instruction: “If, from the evidence, the jury believe that on the occasion of receiving the injury complained of, after the train in question was started, the plaintiff received warning not to get off of the train, from one or more of the defendant’s agents or servants, and yet did get off of the train in spite of such warning, then he cannot recover on account of his own negligence contributing to his injury, and your verdict must be for the defendant.” In Fulks v. Railway, 111 Mo. 335, and Behen v. Transit Co., 186 Mo. 430, the Supreme Court holds that it is negligence per se for a person to attempt to board or alight from a moving train in the face of a warning from a trainman not to do so. Defendant invokes this rule in support of the instruction under consideration and argues that since it adduced substantial evidence tending to show that the train was in motion when plaintiff emerged from the
But to sustain the action of the learned trial judge, we are not compelled to go counter even to the broad and comprehensive construction placed by defendant on the rule invoked. The instruction assumes, as an unquestioned fact, that plaintiff attempted to alight from the train after it had started. In view of the controversy among the witnesses over the existence of this fact, the determination thereof by the court in an instruction would have been erroneous.
Another objection made by defendant is directed against the use by plaintiff in his first instruction of the term “due diligence” in defining the measure of
The following portion of plaintiff’s second instruction is made the subject of criticism: “And if you further find from the evidence that defendant’s servants and agents in charge of said train failed to hold said train stationary long enough for plaintiff with due diligence on his part to assist his daughter into said train, but jerked in a violent and unusual and extraordinary manner said train while plaintiff was about to alight therefrom, and that thereby and by reason thereof plaintiff fell, or was thrown, or jerked upon and against the said platform and injured,” etc. Defendant is in error in saying there is no substantial evidence tending to show the fact of an extraordinary violent jerk in the movement of the train. Witnesses for plaintiff declare emphatically that such jerk occurred. It is true the wit
Further it is argued that the instruction is defectiAe because it omits to require the finding that the train was negligently jerked. The facts hypothecated in the instruction indubitably constitute negligence and, if found to be true, could lead to no other conclusion. In such situation, the omission is not a reversible error. [Luckel v. Building Co., 177 Mo. 608.]
The court refused to give instructions asked by defendant in Avhich the jury was told to find for defendent should they find that plaintiff attempted to alight from the step Achile the train was in motion. The direction AAas unqualified, that is, it was not made dependent on the rate of speed at which the train Avas running at the time nor on the reception by plaintiff of a Avarning not to alight.
We have noted that the amendment of the petition made after the case Avas here on the former appeal enlarged the scope of the. issues to include the act of negligently increasing the speed of a sloAvly moving train in a violent manner Avhile plaintiff was in the act of alighting and consequently the reason which prompted the former disposition of the case in this court does not noAV apply. The submission of that issue to the jury cannot be
Other points are made by defendant, but what has been said sufficiently answers them. The case was fairly tried and the judgment is- affirmed.