51 Mo. App. 438 | Mo. Ct. App. | 1892
Plaintiff was injured in attempting to get aboard a caboose attached to the rear end of a moving freight train as it was passing the depot platform at the town of Dewitt, on defendant’s road. In making the attempt, he missed his hold, and fell. He brought this action for damages and recovered in the
From plaintiff’s own testimony, excluding what it contains of a negative character, we may concede that he made a case for himself. The case is this: That the caboose was standing about one hundred and fifty feet east of the platform; that he purchased a ticket entitling him to passage on that train from Dewitt to Carrollton and he then waited on the platform expecting the caboose to be pulled up opposite to the platform, and stopped a sufficient length of time to afford him opportunity to get aboard; that when he discovered-that the caboose would not be stopped at the platform he attempted to get aboard, while it was moving slowly rather than to be left. In conceding that this testimony made out a case for plaintiff we mean it as a concession for the purpose of a discussion of this case and not a -decision; for when one takes passage on a freight train he ought not to expect the same conveniences as when on a regular passenger train, though he must be treated and respected as a passenger by the carrier receiving him as a passenger. Murch v. Railroad, 29 N. H. 9; Thompson on Carriers of Passengers, 235. It is assumed that he will uncomplainingly put up with the inconveniences which reasonably follow such mode of travel. Whitehead v. Railroad, 99 Mo. 263; McGee v. Railroad, 92 Mo. 208. In this instance the caboose, as plaintiff and I believe all the other witnesses state, stood at noon time in front of the hotel about one hundred and fifty feet east of the depot for at least fifteen minutes, and that between the caboose and the
But when we consider what appears in plaintiff’s testimony of a negative character, and compare it with what is shown in the testimony of the other disinterested witnesses it leaves the judgment without support. He says that the caboose was stopped opposite the hotel about one hundred and fifty feet east of the platform when the train first entered Dewitt, and that he got out of the caboose at that point and immediately went up to the ticket office, got his ticket and remained five minutes inside the waiting room. He says he left Miss Barrett, a passenger for Dewitt, m the caboose when he got out; that he did not see her when she got out. She says that the caboose was pulled up to the platform, and that she got out on the platform. Witness Tennison was a departing passenger, and was at the depot. He states that the caboose was at the platform and that he got on at the platform, and that the car was then backed down opposite to the hotel. Witness Sensible was a passenger who had gotten on the train at Brunswick, and was going beyond Dewitt to Wakenda. He says that the caboose was stopped at the platform, and that he got out of the car onto the platform. Witnesses Booth and Winfrey also state that the caboose was stopped at the platform, and all these witnesses say that it was then backed down to the hotel. They are all disinterested parties. Added to these is the testimony to. the same point of all the train force, including the station agent.
There is another phase of plaintiff’s case which, it seems, should have worked its destruction. His first instruction, recognizing that he was traveling in a freight train, bases his right to recover qn the hypothesis that the caboose was not stopped at the platform, or at a point reasonably near thereto. What point would be reasonably near would, of course, depend on circumstances — the surroundings, situation and location. In this case there was a clear, unobstructed, smooth pathway from where the caboose stopped to the end of the platform, a distance of between one hundred and twenty and one hundred and fifty feet — a half minute’s walk. Plaintiff accepted this point as being near and convenient enough for his purposes; for he left the car at the point without question or protest.
' When we come to defendant’s case, as presented by its instructions, plaintiff, palpably, has no foundation upon which to rest his judgment. By the first instruction the jury are told that if the conductor announced to the people on the platform that the caboose would not again be brought to a stop at the platform, he had a right to assume that plaintiff heard him, and if plaintiff had time then to go to the caboose, though it was in front of the hotel, but did not do so and remained upon the platform, talking to other persons, until the train started up, he could not recover. There was no question at all but that plaintiff had abundance of time to go to the car after the announcement was made, if it was made. That it was made, was shown by several witnesses besides the train force. It was not disputed by anyone. Plaintiff, says nothing was said to him individually, but, as to whether the announcement was made generally, he only says he did not hear it. His language was: “I was watching the
So, the verdict is in the face of defendant’s second instruction, where the jury was told that if the caboose was stopped reasonably near to the depot and remained there a sufficient time for plaintiff to go to the ticket office for his ticket and return thereto, and that plaintiff did go to the ticket office and procure his ticket, he had no right to assume, without inquiry, that the caboose would be pulled up and stopped at the platform, and that, therefore, if he, instead of returning to the caboose, remained on the platform, talking to others, until the train started, he could not recover.
There is no doubt or question as -to the facts hypothetically put in this instruction, and the jury should have responded thereto, by finding a verdict for defendant as therein directed.
The case has been well presented by the respective counsel,- and we refer to their briefs for authorities cited in support of the theories which were advanced at the argument. The judgment will be reversed.