149 Mo. App. 223 | Mo. Ct. App. | 1910
Action for personal injuries received by plaintiff by having a finger mashed while attempting to close the door of an express car of defendant’s train. The facts out of which this action arose are substantially as follows:
Plaintiff boarded defendant’s train at a flag station named Jordan. There being no depot or station agent at this station plaintiff after having boarded the train paid his fare to the auditor to Piedmont, and went forward to the baggage car for the purpose of informing
The errors assigned are the refusal of the court to sustain a demurrer to the testimony, error of the court in admitting testimony on the part of plaintiff, and error in giving and refusing instructions. The petition in this case alleged that it was the custom and requirement of the defendant that passengers having baggage put on at stations where there were no agents are required to go forward to the baggage coach to arrange about their baggage after having boarded the train. In order to prove that plaintiff had the right to go to the baggage coach for the purpose for which he did go, he and other witnesses were permitted to testify that such was the custom and practice of the company. Some of them testified that in passing over the same road, under similar circumstances, the conductor had told them to go to the baggage coach for the same purpose for which plaintiff went on this occasion. It-is now contended by appellant that this testimony was inadmissible for the purpose of establishing a custom upon the part of defendant, and insists that the rigid rules relative to the manner in which customs are to be proven in the trial of cases should be applied to this case. We think this testimony was clearly admissible and whether it was sufficient to establish a custom, as that term is usually understood, we think it is sufficient to show that the company transacted that part of its business in that way. It was a part of the business of defendant to carry baggage belonging to its passengers and the passenger had
The next question arises as to whether defendant was negligent in its duty toward the plaintiff. Negligence is a relative term, and in order to show one guilty of actionable negligence it must first be shown that he owed some duty to another which he has failed to perform and that his failure resulted in injury to the other. [Shaw v. Goldman et al., 116 Mo. App. 332, 92 S. W. 165; Loehring v. Construction Co., 118 Mo. App. 163, 94 S. W. 747; Wencker v. M., K. & T. Ry. Co.169 Mo. 592, 70 S. W. 145.]
It is contended by appellant in this case that plaintiff in going to the baggage car was a mere volunteer and at most a licensee, and that the company owed him no duty to keep the doors of the car in a reasonably safe condition for his use, and upon this proposition hinges this case. What we have said in regard to the admissibility of the testimony on behalf of plaintiff will apply with equal force to the question now under con
It is contended by appellant that if all this be conceded, still the plaintiff was guilty of contributory negligence and for that reason he cannot recover. The testimony upon this question is that plaintiff in passing out from the baggage car took hold of the knob of the door with his left hand and pulled the door shut after him as he passed out and in doing so his finger was caught between the knob and casing of the door and crushed. Taking hold of a door knob to open or close a door is so commonplace an act and one so universally practiced that the court or jury would need no proof of the usual manner of doing it, but it is a matter of common knowledge that a person closing a door would catch hold of the knob and pull it shut and in doing so it would not occur to the ordinary person that it was necessary to “stop and look” to see if there would be danger of mashing his finger in the act before he would proceed to close the door, and he should not be charged with negligence for doing as any other ordinarily prudent person would do under the same circumstances. The fact that people generally in closing doors, do not “stop' and look” to see if they are liable to be hurt would suggest to any one placing a knob on the door to be used for that purpose to place it where the person using it would not, in using it in the ordinary way, be liable to receive an injury. Plaintiff’s evidence tends to show that the' door knob was so close to the door casing when the door was closed that a man’s finger could not be passed between them. If this is true it necessarily follows that if a person in closing the door should catch the knob with his fingers on that side he would
The instructions given on behalf of plaintiff and defendant submitted to the jury the issue as to plaintiff’s right to go to the baggage car for the purpose for which he went, the question of his care or negligence, and the question of the negligence of defendant, and without setting them out at length it is sufficient to say that these instructions fairly submitted the issues to the jury.
The appellant insists that the court erred in refusing instruction four, asked by the defendant, which told the jury that the baggage cars of defendant company were not intended for the carriage of passengers and that if plaintiff voluntarily went into the car for the purpose of seeing after his baggage, then he assumed all the risks incident to his acts and the company was not liable for any injury that he might receive in that respect. This instruction amounted to a demurrer to the testimony for it practically told the jury that under the testimony in this case the plaintiff had no right to go to the baggage car, and that having done so he could not complain of being injured in the way that he was, and having reached the conclusion that a demurrer to the testimony should not have been sustained, it necessarily follows that this instruction was properly refused.
The evidence on the part of defendant tended to show that this car door was constructed in the same way that the doors of other express and passenger coaches are usually constructed, and now insists that this testimony, not having been denied, it must be taken as a fact, and that if this door was constructed in the way that doors to such cars aré ordinarily constructed that defendant could not be charged with negligence on account of the manner of its construction. This position would be tenable provided the construction in itself was reasonably safe, but no custom or practice, however universal,
It is also contended that the damages ássessed in this case are 'excessive. The evidence on the part of plaintiff shows that his finger was badly mashed; that he was under the doctor’s care for three or four weeks; that he lost four or five week’s time; that he was a traveling salesman earning from two hundred to three hundred dollars per week at that time, and in view of this testimony we are not prepared to say that the verdict is so excessive as to justify this court in interferring with it upon that ground. The judgment will be affirmed.
