186 Mo. App. 718 | Mo. Ct. App. | 1915
— Plaintiff, the widow of Frederick Iba, deceased, brought suit in the circuit court of Buch
The defendant railroad company filed a petition and bond to remove the case to the United States court on the ground that said defendant was an Ulinois corporation; that plaintiff and Phelan were citizens of Missouri and that the cause of action pleaded in the petition being founded on section 2864, Revised Statutes 1899 (5425, R. S. 1909) was separable and not joint. The circuit court approved the bond and made an order transferring the cause, but the Supreme Court reviewed this ruling on certiorari, and quashed the order on the ground that,the petition stated “but one cause of action and that is against both defendants and it is under sections 2865 and 2866, Revised Statutes 1899, now sections 5426 and 5427, Revised Statutes 1909.” [State ex rel. v. Mosman, 231 Mo. 474.] Pursuant to this decision the circuit court of Buchanan county resumed jurisdiction over the cause and tried it in February, 1911, upon the issues raised by the petition and answers and the jury returned a verdict for plaintiff assessing her damages at $5000.
In due time defendants filed their motion for a new trial and at the same term but after the time had
First: “The order removing this cause to the Federal court not having been set aside by the trial court, it had no jurisdiction to try the ease. ’ ’
Second: “The petition and bond for removal of the defendant railroad company being in form and the case being removable, the trial court lost jurisdiction when said petition and bond were filed.”
Third: “Defendants’ demurrers at the close of all the testimony should have been given. ’ ’
Fourth: “The court committed error in instructing the jury that ‘ defendant company, its agents, servants, and employees, owed deceased the highest degree of care such as would be exercised by practical and skillful railroad employees under like circumstances.’ ”
Fifth: “The court should have granted the defendants a new trial because of perjury committed by plaintiff’s witness Albert Rise. ’ ’
Further we held that the decision of the Supreme Court on the issue of the removal of the cause to the Federal court was final and conclusive and that “it was not necessary for the trial court to first set aside its removal order before trying the case since the Supreme Court had effectually disposed of it.” We are hound to follow the decision of the Supreme Court.that the cause pleaded in the petition is under sections 5426 and 5427, Revised Statutes 1909, is, therefore, joint and that no ground exists for removal (See also Railway v. Schwyhart, 227 U. S. 184, affirming Schwyhart v. Barrett, 145 Mo. App. 332), and shall not again refer to the first two assignments of error. We did not discuss the demurrer to the evidence and the alleged error in plaintiff’s first instruction, for the reason that while they were not formally abandoned, they were treated by both parties as negligible questions, and the issue of Rise’s alleged perjury and the trial court’s treatment of it became the sole subject of argumentative controversy between the parties.
Following the announcement of our decision the Supreme Court, at the relation of plaintiff, reviewed the case on certiorari and held, in substance, that the trial court’s ruling on the weight of the evidence, under the facts disclosed, was not reversible error. Reference to that opinion, which is reported in Yol. 256 of the
The opinion of the Supreme Court does not refer to any other assignment of error than that relating to the ruling on the weight of the evidence, and we sanction the contention of defendants that the mandate requires us to hear the cause on the questions of the sufficiency of the evidence of plaintiff to take the case to the jury and of the alleged error in the first instruction given at the request of plaintiff.
Pacts pertinent to the proper consideration of these points thus may be stated: Iba, who was sixty-eight years old, was actively engaged in the grain and stock shipping business at the town of Easton, twelve miles east of St. Joseph, on defendant’s railroad. He was intemperate in the use of intoxicants but at the time in question was not noticeably under the influence of liquor. He intended going to St. Joseph that afternoon on the passenger train and bought a ticket which entitled him to become a passenger thereon. The train stopped, as usual, at the station platform for the reception and discharge of passengers and there is no suggestion in the evidence that it did not remain stationary a reasonable time for the safe egress and ingress of outgoing and incoming passengers. Iba had other business at the station and did not attempt to board the train until just before or just after it started to leave. Plaintiff introduced two witnesses, one of whom was the witness Rise, who testified that just before the conductor Phelan, who was on the platform, gave the signal to start the train, Iba stepped to the
The testimony of these two witnesses is corroborated in every detail (with a single exception) by the first two witnesses introduced by defendants. The only substantial difference between these witnesses is that those for defendants state that Iba did not start to board the .train until after it had started forward We quote from the testimony of H. B. Martin, one of defendant’s witnesses:
“I could not see the conductor, hut I heard him make the remark, ‘all aboard,’ and the train moved out and Iba could see the coach from looking out of the freight house door, and as quick as he saw the coach move off he come out. I could not say that he run, but it was the next thing to it, when he got to the door he kind of cut angling across to catch up with the train, with the car, and when he caught up with the coach, why he reached out with his left hand, and grabbed what you call the handhold with his left hand, and he managed to get up with his left foot on the lower step; I don’t know whéther you might call it an awkward position or not, but he was hanging there all right enough.
“Q. While you are on that will you describe his position to the jury, how he was hanging, you say he
“Q. Where was his feet? A. His left foot was' on the lower step of the steps.
“Q. Where was his other foot ? A. It was hanging down between the steps and the platform.
“Q. Could you tell what, if anything he was trying to do? A. I suppose he was trying to get on the train, of course.
“Q. Now go ahead and tell what happened. A. Well, after he was on there, the conductor happened to notice it, I suppose, and the conductor was standing between him and the truck that was on the platform there, he was— . . .
“Q. State what you did see. A. I saw, as quick as the conductor saw him, he turned around and approached, run over to Mr. Iba and when he got within a reasonable distance, or reaching distance, he just made him, and said to him he says, ‘ what are you doing on there.’ -He says, ‘get off,’ and told him to get off and the second time he hollered to get off, and he grabbed hold of his right arm, and looked like he was trying to pull Mr. Iba off, for what object I don’t know. Of course that was his business; he tried to pull him off all right. After that he could not get him off, and he got within two or three feet of the truck, and turned him loose and broke his hold some, why, after he got loose he made a move just like a man would if he was going to run against him or such as that, pushed him on the flat of his back, or on his side, to push him up the steps but whether or not he pushed him I could not tell. Had to look mighty fast to keep up with him, and the conductor jumped back and kept from hitting that truck, and as quick as the conductor jumped back Iba was coming into contact with that truck, and it hit him somewhere along in the side,
“ . . . tell the jury what his position was when the conductor started towards him. A. I could not call it a dangerous position so far as that was concerned, but it was awkward.
£‘Q. You are not allowed to say that. Tell the jury what his position was. A. He was standing there hanging, ahold with his left hand to that rod and standing on the lower step with his left foot on that step, and the right foot hanging down by the side of it.
‘ ‘ Q. Can you tell whether he was aiming to get on or off the train? A. He was undoubtedly trying to get on the train. He was doing that all right.
££Q. How long was he in that position, trying to get on the train? A. I really could not say. I don’t knowhow I could answer that because just in a moment everything was over. -I think though he went about ten or twelve feet before the conductor noticed him, and as quick as the conductor noticed him he run towards him and told him — asked what he was doing up there, and told him to get off, twice, and the second time he told him, grabbed hold of him and tried to knock him off — tried to put him off, I mean. ’ ’.
On cross-examination:
£ £ Q. What was Mr. Iba doing when the conductor took hold of him? A. Why, he was on the — having hold of that handle bar, and standing on the lower step of the train.
££Q. Was he getting on the train? A. He was trying to, I suppose, yes.
i£Q. He did not have his right foot on the platform, did he? A. Not according — not the way I saw it.
££Q. And he was then riding on the train, wasn’t he? A. Welí, you might call it that.
££Q. Now how fast was that train going? A. Oh, about as fast as it generally goes when it leaves the depot. It did not go any faster than usual, or any slower, I don’t suppose.
££Q. We don’t know how fast that is. It was moving very slow, wasn’t it, just starting up? A. Yes, sir.
•£ £ Q. And he was riding on it ? A. Well, of course.
££Q. He was riding on it? A- Mes.
££Q. Then the conductor took hold of him? A. Yes, sir.
££Q. And tried to pull him, did he? A.. Yes, sir; he tried to pull him off. . . .
££Q. He hung onto him? A. Yes, sir.
1 £ Q. There would not have been any trouble if the conductor had not taken hold of .him, and hung onto him? A. I hate to give my judgment on that, but I don’t think there would be. ’ ’
On re-direct:
££Q. At the time the conductor started towards Mr. Iba to take hold of him, what was Mr. Iba’s position as to whether it was erect, up straight,’ or whether he was swinging? A. Well, you could not say he was swinging; he was standing with his left foot on the step, and having a firm hold on the—
££Q. What position was his body? A.. Upright.
££Q. Perfectly straight? A. Yes, sir.
£ £ Q. Where was his right foot? A. His right foot was hanging between the step and the platform; he was just standing on his left leg.
££Q. Standing on his left foot? A. Yes, sir.
To the same effect is the testimony of W. R. Dealrins, the other witness for defendant we have mentioned.
The conductor and other witnesses testified that Iba did not try to get on until after the train had started and that without succeeding in obtaining a foothold he was hopping along trying in vain to get on the step when, seeing his predicament, the conductor attempted to grab him and save him from falling between the platform and train. It will be noted that there are three evidentiary versions of the injury, viz., first, that Iba, intending to become a passenger, started to board the train while it was still standing at the station for passengers to get on, and that he had attained a position of safety on the step' when the conductor assaulted him and forced him into a position of peril. Second, that he did not attempt to board the train until after it had started but succeeded in attaining a position of safety on the step when he was assaulted and thereby imperilled. And, third, that he did not try to board the train until it had acquired a dangerous speed, did not reach a position of safety and was not assaulted by the conductor whose effort towards him was put forth under the humane impulse of saving him from death or serious injury.
Each of these versions finds substantial support in the evidence and since none of them appears opposed to physical fact or law, it was for the jury to decide which group of witnesses should be believed. Under the first of'these evidentiary hypotheses, there can be no question of the liability of defendants. By stopping its passenger train at the station for the reception of passengers, defendant company extended an implied invitation to Iba, who had provided himself with a ticket entitling him to ride on that train, to become a passenger thereon. That invitation continued
The liability of defendants seems no less clear and certain under the second hypothesis. Concede that the invitation had been closed and that it was negligence for Iba to attempt to board the train, such negligence was the remote, not the proximate cause of the injury. It was not a positive wrong for him to try to catch a moving train and if he succeeded and placed himself thereon in a position of relative safety, he was no outlaw nor wrongdoer, but became entitled to ride on the train, since he possessed a ticket which so qualified him; and, having reached the status of a passenger, defendant railroad and its servants owed him the highest degree of care to protect him from injury. Instead of giving him such protection the conductor tried to force him from the moving train and thereby converted his position of relative safety into one of the greatest danger. It is too plain for argument that such act was the proximate cause of the injury. The trial court could not well do otherwise than overrule the demurrer to the evidence, since plaintiff was entitled to go to the jury on either of the first two hypotheses.
We have said enough to show that there is no merit in the criticism of plaintiff’s first instruction, since,
There is no reversible error in the record and the ■judgment will be affirmed. It is so ordeied.