| Mo. | Apr 15, 1889
— Action for personal injuries. Damages laid at fifteen thousand dollars. Motion to require plaintiff to elect. Motion overruled. Answer, general denial. Demurrer to plaintiff’s evidence. Demurrer overruled, and cause submitted to the jury on plaintiff’s instructions and evidence, defendant offering none.
I. While the petition contained a good deal of superfluous and redundant matter that might have been stricken out on motion, the facts therein stated constituted but a single cause of action, in a single count, and there was no error in overruling the motion to elect.
II. The facts appearing in evidence are as follows: At the time plaintiff received the injuries of which he complains, there was at Dewey switch on the defendant’s road, three or four miles west of Washington station, under the main track and switch and across the space of eight or ten feet between the tracks, a water way fifteen feet deep and el even feet wide at the top, between rock walls uncovered between the tracks. On the morning of the twenty-ninth of April, 1884, the plaintiff shipped two car-loads of cattle from Montrose in Henry county to St. Louis, and took passage on the same train with the cattle to see to and take care of them. About nine p. m. the train stopped for supper at Chamois, a station about ninety miles west from St. Louis. After supper plaintiff boarded the train, and discovered after it had moved a short distance, upon inquiry of the conduc tor, that his cattle were not in the train. By mistake they had been left at Chamois. The conductor said there was a tank twelve or fifteen miles further on, the mistake might be discovered and his cattle sent in the second section and he had better get off and wait for it. The train stopped at the tank. He got off, boarded the second section when it came along, inquired of the conductor and found his cattle were not on that section. At the next station, the conductor wired the agent at Chamois and afterward s informed the plaintiff that his
III. The proximate cause of the injury to the plaintiff was the act of the conductor in stopping the train with the caboose, in which plaintiff was a passenger, in close proximity to a place of danger and directing him to get off, knowing at the time that it was not the place where he had promised the passenger to let him off, and where he was expecting to get off in order to pass from the one train to the other, which place was .at a regular station and presumably a safe one for him to get off and go from one train to the other, without either notifying him that he was at a different place, or warning him of the. danger to which he would at that place be exposed in going from the one train to the other, or .affording him any means of discovering its location, or
I Y. That the plaintiff: by the light of the dim lantern which he had of his own, in attempting on this dark night to reach the moving train distant only some eight or ten feet from him, and to which his attention would naturally be directed, did not discover between the two tracks, where he had every right to presume he was safe, the yawning chasm into which he fell, is no evidence of negligence contributory to his injury. If' he had been warned of the existence of this peril, then there might be some ground for this suggestion of contributory negligence on his part.
Y. In many cases, where negligence consists in the condition of the locus in quo at the time of the injury, it is important to confine the evidence to the time, place and circumstances of the injury as near as may be, as was the case in Stoher v. Railroad, 91 Mo. 509" court="Mo." date_filed="1887-04-15" href="https://app.midpage.ai/document/stoher-v-st-louis-iron-mountain--southern-railway-co-8008972?utm_source=webapp" opinion_id="8008972">91 Mo. 509, and Ely v. Railroad, 77 Mo. 34" court="Mo." date_filed="1882-10-15" href="https://app.midpage.ai/document/ely-v-st-louis-kansas-city--northern-railway-co-8007258?utm_source=webapp" opinion_id="8007258">77 Mo. 34. In this case, there was no question as to the condition of the place at which the injury occurred, at the time of the occurrence and it was perhaps superfluous to show its condition either before or after the injury, and the court might well have excluded such evidence when offered in chief, but its introduction could not possibly have had any effect upon the result of the issue, and not affecting the merits of the case, its admission affords no ground for reversal. R. S. 1879, sec. 3775.
YI. The court by its instructions confined the j ury to compensatory damages for the injuries plaintiff sustained. He was a strong, healthy, active man, engaged in the management of a large farm of between eight and nine hundred acres, with from one hundred and seventy-five to two hundred head of cattle and other stock. By
No reversible error appearing in the record, the judgment is affirmed.