61 Mo. App. 67 | Mo. Ct. App. | 1895
This action is for personal injuries sustained by plaintiff, who was at the time a passenger on one of defendant’s freight trains. The train was composed of an engine, a caboose and about twenty-four or twenty-five box cars. Plaintiff and his father were, with the permission of the defendant, riding in a box car with the freight they were shipping. The freight consisted of some household furniture in one end of the car and some live stock in the other end. Plaintiff had a lantern with him which was shown to be necessary in order properly to look after the stock during the night. They were from Iowa and had been transferred to defendant’s road at St. Louis being
The verdict being for plaintiff, we have stated the foregoing facts as the evidence in plaintiff’s behalf tends to establish them. Testimony in behalf of defendant was, that the plaintiff requested the conductor to give him some oil for his lantern, and that the conductor told him that he did not then have time to do so, but that the train would probably be laid out that night at some station along the road, and that he, plaintiff, would then have time to get some oil; and that afterward plaintiff, without waiting for the train to be laid out, but at a point where it stopped, which was not a station, he got out and was injured while attempting to
There is no doubt but that there was sufficient evidence upon which to base the verdict and the only question is, do the facts which plaintiff’s testimony tended to establish make a cause of action against defendant. We have concluded to answer this question in the affirmative. It appears from the evidence that the lantern was necessary for use in the condition and under the circumstances in which defendant was carrying plaintiff and his property. The conductor, in directing plaintiff to get out of his car at the next stop and come back to the caboose for the oil, was acting for the company. He was directing the passenger in regard to the passenger’s convenience as such and in regard to the safety of the passenger and the stock. Suppose the passenger thus riding in the box car had asked for a chair in which to sit and had received directions to come back and get one out of the caboose; or, suppose he, not wishing to ride further in the box car, had asked permission to ride in the caboose and had received directions from the conductor to come back at the first stop; again, suppose the conductor had replied to plaintiff that he was then about starting but. that the train would stop again in a few minutes at a short distance further on, and that when it did plaintiff should get out of his car and come back to the caboose; in either of these instances, it seems to us, that the conductor would be acting for the defendant in the line of his duty, and, if he was guilty of negligence in connection with such acts, the company would be liable, in the absence of contributory negligence on the part of plaintiff. The difference between what was
We do not consider the authorities, cited us by defendant applicable to the facts in this case. Among them is the case of Minock v. Railroad, 97 Mich. 425, where the court held that it could not say as a matter of law, that a railway company should notify passengers not to alight in an intervening railroad crossing at which the train stopped, merely because its servants had announced the succeeding station at the preceding station. The evidence on this point, as given by the plaintiff in that case and quoted by the court, was: “After we left Davisburg he (the brakeman) said the nest station would be Holly. “Q. Did he say ‘the nest station’ or the nest stop?” “A. ‘The nest station’ he did not say ‘stop’ at all.” The train stopped, as required by law, at a railway crossing and the plaintiff in that case supposing she was at Holly got off and was injured.
Again, the case of the Illinois C. R’y Co. v. Green, 81 Ill. 19, is dwelt upon in the defendant’s brief. The case was where a passenger while asleep in the night was carried by the station at which he wished to get off. The train was stopped for water at the water tank, the cars being on a bridge, and there the passenger alighted and was injured. It was claimed that it was negligence to stop the train at that place without notifying passengers of the danger. The court said: “But why notify passengers of danger? It was a stopping place for getting water, not for passengers. * * * There was a right to presume that the passenger would keep in his place, inside the car. It was not antici
The difference in the facts of those cases and the-one at bar is too apparent for comment. Plaintiff’s, theory in this case is, that he got off the car in which, he was riding at the place where he had been directed by the conductor, viz: at the place where they should first stop.
Defendant pleaded contributory negligence on part of plaintiff, but no instruction was asked by it on this phase of the case. The instruction for plaintiff required the jury to find that he was exercising due care and caution at the time of the accident. If plaintiff’s, theory of the case makes a legal cause of action against defendant, there is not much room for the question of' contributory negligence, since his conduct and what he did was the result of the direction of the conductor and in following such directions. When the conductor was first approached for the oil it was about dark and he of course, knew that the first time the train stopped would be after dark, and he of course knew it was dark when the train did stop. The plaintiff in getting off and starting for the caboose on which he could see a light, only did what he had been advised to do and that he did the act after setting out upon it in a careless way does not by any means appear. He proceeded along towards the caboose by the side of the train, keeping and one hand rubbing along on the cars. He did what he undertook to do in as careful a way as could be
The defendant complains of remarks of plaintiff’s counsel during the argument referring to defendant’s employees as witnesses in the cause and to their interest in defendant’s behalf. We have read what was objected to and can not say those remarks were of a nature to impose upon or excite the prejudice of the jury.
The judgment will be affirmed.
