60 Mo. App. 274 | Mo. Ct. App. | 1895
This is an action to recover damages for personal injuries alleged to have been occasioned by the negligence of defendant. The petition alleged, plaintiff being old and blind, purchased a ticket from defendant’s agent in charge of its station at Glasgow, entitling her to transportation on said railroad from Glasgow to Cambridge switch, stations on defendant’s said road; that, upon the sale and delivery of said ticket to plaintiff it became, and was, the duty of defendant to receive plaintiff on any of its passenger cars stopping at said stations, and to remain long enough at said station to allow plaintiff by the use of reasonable diligence to get on said cars and secure a seat; that as soon as plaintiff purchased said ticket she was conducted to one of defendant’s regular passenger cars, stopping at said station of Glasgow, and there placed in charge of defendant’s brakeman and servant in charge of said car, who was then and there informed that plaintiff was old and blind, and he, the brakeman, was asked to assist plaintiff in said car and conduct her to a seat. The said brakeman, on taking charge of plaintiff, assisted her up the steps and to the platform of said car, but instead of conducting her into said car and seating her, as he
That defendant’s agents and servants in charge of said train wrongfully, carelessly and negligently started said train while plaintiff was on the platform of said car and before she could find her way into said car, and in attempting to move into said car, plaintiff by reason of the moving motion of said car and the fact that she was' blind, lost her footing, and without any fault or negligence on her part, was thrown with great force and violence from the platform of said car against and upon the frozen ground, and by reason of the force and violence of said fall plaintiff received, etc., certain injuries.
The answer was a general denial coupled with the defense of contributory negligence. There was a trial which resulted in judgment for plaintiff, to reverse which this appeal is prosecuted.
The court in the instructions for plaintiff, in effect, told the jury that if they found from the weight of the evidence that plaintiff purchased a ticket of defendant, entitling her to passage from Glasgow to Cambridge switch, stations on defendant’s road, and was conducted to defendant’s passenger train, and a servant employed as brakeman on said train was informed that plaintiff was old and blind, and said servant was asked to take charge of her and see her on said train, and such, servant did take hold of said plaintiff and assist her to the platform of said car, it then became, and was, the duty of said servant to either conduct plaintiff to a seat in said car or to afford plaintiff’s attendant reasonable opportunity to do so before starting said train. And if the jury further find from the weight of the evidence that said train was started
1. That they could not infer or presume negligence on the part of defendant from the happening of the accident to plaintiff in this case; that it devolves upon plaintiff to establish by a preponderance of the evidence: First. That defendant or its servants employed on defendant’s train, or some one of them, was informed that plaintiff was old and blind, and was asked to assist plaintiff on to said train and to conduct her to a seat, or that such servant knew that plaintiff was old and blind and knew that his services were necessary to help her on said train and to conduct her to a seat thereon, and that after being so informed and asked and after knowing plaintiff was old and blind and knowing that his services were necessary in conducting her to a seat, the defendant was guilty of negligence in assisting her on the train and conducting her to a seat. Second. That the plaintiff’s injuries resulted solely from such negligence on the part of defendant. And unless the plaintiff has established both of these facts by a fair preponderance of all the evidence, your finding must be for defendant.
2. If the jury believe from the evidence that when the plaintiff came to defendant’s car to take passage thereon, J. S. Ballew came with her for the pur
3. The jury are instructed that if they believe from the evidence that plaintiff was old and blind, but that she still retained the faculties of hearing, feeling and speaking so as easily to be heard, and that before she walked off the train she knew either that she was following the direction given her by Ballew at the time, or knew that no one had hold of her or was assisting her, and walked off the platform of the car without knowing where or in what direction she was going, and further believe that, by the use of such faculties as she did possess she could have prevented her injuries, then the finding must be for defendant.
4. The court instructs the jury that it was not the duty of the defendant to assist plaintiff in getting on its passenger car, unless defendant or its agent or servant there present, was informed or knew that plaintiff was old and blind and knew that she required assistance to enable her to get on said car, and unless the jury believe from the evidence that plaintiff was blind and that defendant or its agent or servant then present knew that fact, the verdict should be for defendant.
It is the law of this state that it is the duty of a carrier to stop long enough to enable its passengers to get or off its conveyance by the use of ordinary care or diligence. Strauss v. Railroad, 75 Mo. 185; Smith v. Railroad, 108 Mo. 243; Culberson v. Railroad, 50 Mo.
The -evidence though conflicting tended to show a breach of this duty. It is thus seen that the instructions given for plaintiff assert a rule of liability in consonance with the authorities just referred to, and, were it otherwise, the defendant could not be heard to complain, since the instructions asked and given for it, fully recognize a like rule.
There is no material variance between the allegations of the petition and the proof. There was substantial evi
The defendant further contends that the plaintiff’s instructions were erroneous in declaring that it was the duty of defendant’s brakeman to conduct her to a seat after he was informed that she was blind, for the reason that she had an attendant who had her in charge and who was assisting her and hence there was no necessity for the brakeman’s assistance to conduct her to a seat, and that, under such circumstances, the law did not require such service of him. It is sufficient answer to this to say there was introduced evidence tending to show that Mr. Ballew, .plaintiff’s attendant, stated to defendant’s brakeman in a voice sufficiently loud to be heard by several bystanders to the effect that, “here is a blind lady and I want you to put her on the train;” that thereupon the defendant’s brakeman took hold of the plaintiff and assisted her onto the platform of the car and then stepped back and signaled the train to go on, leaving the plaintiff unattended, standing on the platform; that, at that, the train then started, its forward motion causing plaintiff to be thrown off the platform upon the frozen ground, which resulted in the injuries complained of. Ballew testified that he had the plaintiff’s baggage in his hand and while following plaintiff in charge of the brakeman onto the platform, the latter inquired of him if he was going and being informed in the negative, he then told him to get off, which he accordingly did, after hastily depositing plaintiff’s baggage inside of the door of the car. If it was, as the defendant contends, the primary duty of the plaintiff’s attendant to see her safely seated in the car, he was relieved of that duty under the circumstances just stated. The defendant’s brakeman having assumed
The propriety of the action of the court in refusing to permit the.defendant to propound a certain interrogatory to one of the venire men can not be reviewed by us, since, in the motion for a new trial, this was not made one of the grounds therefor.
It results that the judgment must be affirmed.