67 Mo. App. 105 | Mo. Ct. App. | 1896
Defendant has appealed from a verdict of $500 awarded to the plaintiff by reason of personal injuries received in a fall from the platform of a passenger coach, on August 24, 1894. The petition, in substance, alleges that on the morning of that day the plaintiff bought at Butler, Missouri, a round trip ticket over defendant’s road to Rich Hill, where a fair was in progress; that he went from Butler to Rich Hill over defendant’s road, and at about 8:40 p. m. the same day, he came to the depot at Rich Hill, intending to return to Butler. When he arrived at the depot he found the train standing at the platform. Finding, as he alleges, the steps and platforms of the forward cars crowded with people, he passed along the platform of the depot beside the train until he came to the rear chair car — the last car of the train except the sleeper. Entering the smoking compartment of this car, he found it, as he claims, also crowded with people, and on account of the crowded condition of the train he was compelled to, and did, take a position on the rear platform of said chair car. That after he had assumed this position, the defendant undertook to attach another car to the train, and carelessly and negligently backed said train at a rapid rate of speed against another car, and with such violence that he was knocked from his position on the platform to the ground, whereby his arm was broken at the elbow, etc.
The answer, besides a general denial, charges the plaintiff with contributory negligence in trying to board the train while it was in motion; and further, that plaintiff was voluntarily standing upon the platform of the coach in violation of the printed rules of the company posted in a conspicuous place on the outside of the platform and in the car, and in violation of section 2587, Revised Statutes.
It is suggested in defendant’s brief that plaintiff was not, at the time of receiving the injuries, a passenger on defendant’s train. If plaintiff’s evidence is to be at all credited, there is no merit in this objection. He had contracted with defendant to be carried from Rich Hill to Butler; had bought and paid for a ticket and had, in good faith, entered the train, standing at the depot, and which had been prepared for the carriage of himself and others. Plaintiff having secured a ticket and put himself in charge of the defendant’s trainmen to be transported from Rich Hill to Butler, it is clear that the relation of passenger and carrier was established. Buswell on Personal Injuries, sec. Ill; Hutchinson on Carriers, sec. 565. This is, however, important only in fixing that measure of care which was imposed on the defendant. If a passenger, plaintiff was entitled to receive from defendant that highest degree of care which is imposed on the carrier, for the safety of those it undertakes to transport. Hutchinson on Carriers, sec. 553.
It is, however, insisted that the plaintiff made no case; that a demurrer to the evidence ought to have been sustained, because, first, there was a failure to prove negligence on defendant’s part, and, second, that plaintiff was himself guilty of negligence which directly contributed to his injuries.
The defendant’s negligence complained of in the petition was, that it failed to provide suitable accommodations for those it undertook to carry; that by reason thereof plaintiff, with others, was forced to occupy the coach platforms, and that, while there, the trainmen so carelessly handled the train, while coupling on another car, as to knock or jolt the plaintiff off. There was testimony tending to support each of thsee
Aside, now, from the duty of the defendant to provide suitable accommodations for the passengers it had invited, the plaintiff’s evidence tended to establish a negligent handling of the train, while coupling on the additional car. In the light of the testimony given by several passengers then on the train, the jury was justified in finding that the jolt attending the coupling was unusual and unnecessarily severe. Several passengers testify to having been so jostled and shaken up as to loose their seats. As to what is proper care in a given case, the circumstances should be considered. Here was a train loaded down with people, many standing in the aisles and on the platforms; and even ordinary care would suggest that the train should be carefully handled so as to avoid injury to those occupying it. The defendant’s employees in charge of the train could
It is, however, contended that plaintiff can not recover because he was himself guilty of contributory negligence. In this connection defendant pleaded, as a defense, section 2587, Revised Statutes, 1889, which provides that “in case any passenger on any railroad shall be injured while on the platform of a car * * * in violation of the printed regulations of the company, posted up at the time in a conspicuous place inside of its passenger cars then in the train, such company shall not be liable for the injury; provided, said company, at the time, furnished room inside its passenger cars sufficient for the proper accommodation of the passengers.” The evidence showed that the defendant had posted in its cars the customary reminder to passengers not to occupy the platforms.
Regardless, now, of this statute, and_ under the common law, it seems to have been generally held that it should not be considered negligence per se for a passenger to ride on the platform of a car. But that it is
Mr. Hutchinson says: “Whether standing- upon the platform of a railway car voluntarily, and without any necessity for so doing, would be evidence of the want of such due and reasonable care on the part of the passenger as would exonerate the company from liability in case of an accident resulting in his injury,.would, of course, depend upon all the circumstances, and would be the proper subject of inquiry by a jury. It would, perhaps, depend to a great extent upon the speed of the train and other considerations which would come peculiarly within the province of the jury.” The mere circumstance, then, that plaintiff was, at the time, on the platform, will not be held as conclusive proof of negligence on his part. But under the provisions of the statute above quoted, the risk of riding on the platform may be east upon the passenger, provided, however, the railroad company, at the time, shall have “furnished room inside its passenger car sufficient for the proper accommodation of the passenger.”
Plaintiff’s evidence tended to prove that there were not proper accommodations inside the defendant’s cars. .Not only were the seats occupied, but the passage ways and aisles were, to a large extent, taken up. In this view of the testimony, we find among the cases cited, Willis v. Railroad, 34 N. Y. 670, where the New York court of appeals, in an able opinion, discusses the identical statute we have in this state and applies it to similar facts. Our statute is an exact copy of that in New York. In the opinion, after quoting the statute and calling particular attention to the obligation of the company to provide suitable accommodations inside
The case just quoted from furnishes a satisfactory answer to the suggestion that there was standing room inside the car on which plaintiff was riding, and of the complaint made of the court’s refusal to give the defendant’s eighth and ninth instructions.
Neither is there any just ground to complain of plaintiff’s second instruction, which reads as follows: “The court instructs the jury that if you find and believe from the evidence, that on the morning of the twenty-fourth day of August, 1894, the plaintiff purchased of defendant’s agent, at Butler, Missouri, a round trip ticket over defendant’s road from Butler, Missouri, to Rich Hill, Missouri, and return, and during the evening of said day went to defendant’s depot at Rich Hill, to take passage upon one of its regular trains
This was a fair presentation of the law as applied to the facts which plaintiff’s evidence tended to prove. There is no substantial conflict between this and defendant’s number 7, which told the jury that: “Unless the jury believe from the preponderance of the evidence that the car which was taken .from the Joplin train was coupled to the Kansas City train in such an unusual and violent manner as to jeopardize the safety of the passengers in the cars of defendant; and that the manner in which said cars came together caused the plaintiff to be thrown from the train, without any fault or
After a thorough consideration of all the points made in counsel’s brief, the principal of which have been here noticed, we discover nothing to justify us in disturbing the judgment, and it will therefore be affirmed.