*1 APRIL 645 TERM, 1923. Payne v. Davis.

WILLIAM OTTO PAYNE, COPELAND, JAMES W. Agent, His Next Friend, v. C. DAVIS, Etc., JAMES Appellant. Banc, May 22,

In 1923. Lighting Egress. 1. RAILROAD: Station Safe It Platform: is the duty company properly platform aof railroad to its station during departure discharging the arrival and of trains for taking passengers, respects proper other to exercise egress ingress passengers entering care to furnish safe to its platform. Carrying Passengers Beyond duty --: 2. Station. It is the oi railway stop discharge pas- carriers to their trains for of sengers opposite platform provided purpose; at and for passenger beyond required and if the is carried alight place nighttime, to at an unusual and dark he is alight, entitled to be notified where and to be how of warned danger, given attendant be such assistance or instruc- reasonably necessary tions as are to secure his safe return platform, opportunity egress an for therefrom the usual way. Passenger: Discharging duty -: of 3. Measure Care. of railway discharge passenger carrier its at his high in a destination safe manner in a safe is same degree required safety passengers care carrier for they its while are on cars transit. -: -: 4. -: Notice of Conditions. The carrier is chargeable immediately notice of the conditions with ad- spot jacent discharges passengers at which it its trains, immediately whether front its station beyond platform, sign hundred or two three feet its station beyond platform; stops, calling wherever the train passenger’s the station of the destination and its coincident alight. stopping to him are an invitation Contributory Knowledge Negligence. -: -: Conditions: sign, feet, station on the West of the distance of south 230 tracks, house, long; side of the stood a section tool thirteen feet west, sign, still further 426 feet west of station which was tracks, street-railway bridge; south was an overhead about

646 OP SUPE-EME COUET MtSSOTJBI. house, an unfenced under the tracks was feet west of the tool deep; unlighted eight sluiceway, and- feet wide and fifteen *2 crossway tool and the sluice- there was no other the house between immediately way; gravel platform the north north of the and of sign wide, open space an hut there on station was 130 feet fenced; night foggy was dark and the the west was station, rain; platform, neither the nor nor of inclined to and riding lighted; surroundings in third the was was the train, was called and a and when the station coach of west-bound letting car, stopped the down he left the the brakeman train the instructions; steps, giving the him no but directions gravel platform of and west of where he left the car was the west pulled out first walked After the train the house. tool such; recognize house, eastward, it as he tool but not did saw the post north, the fence and wire and of and came turned walked track, along right-of-way; and he hack to the then turned the tracks, railway and found beaten on the a westward saw ties, attempt along-side path the and in an the north track near passed along path; he west un- walked to extricate h-imself unguarded sluiceway, bridge, the fell overhead and on to der the

(cid:127) stopped injured. near the center the the of and was Had nearly opposite platform, left the car the station would have he did, gone north, having sign, he he have found would the and egress egress, open would have found safe he and safe lighted. years platform seventeen He about had been if the age, mile of third north his of home was about of- steadily-employed, previous- and had in school and but he had been only once, unacquainted ly railroad and was with traveled on surroundings. Held, charged that he cannot its the station surroundings, knowledge of the station its with familiar guilty he as a matter of law that be said and that it cannot taking contributory negligence the course he of such right path recover. as bars his the beaten years $20,000. Plaintiff VERDICT: was seventeen 6. EXCESSIVE weighed high, age, inches one five and two hundred and of capable; jaw good thirty pounds, health and his was frac loosened; places, the teeth both bones of in two tured broken; right there was a fracture were smaller bone wrist gives wrist, which attachment of the left bones the hand of the forearm; right long thigh bone was bones broken fracture; great directly blood; there was a loss transverse ain hospital, splints surgical ap treatment received trial, plied eight later, to the various fractures. At months jaw misalign as a result of the fracture of bone there was a ability food, jaws, impairment ment of the to masticate an APRIL TERM, 1923. opening mouth, perm a restriction of the a1! which are anent; right crooked, movement, wrist restricted incapable lifting; good, motion, of much the left wrist was its rotary extensive, impaired; pieces both thigh unite, although operation brought bone had failed to an apposition; during day compelled them into is to wear a bandage, night leg kept metal brace and is between two sand, strapped bags sleep, it so he cannot move it in his sleep only; leg and he can on his back is about one inch shorter, testimony injury perm and the medical was that is 'anent, leg merely hanging on, is and that union of the th.at brought only by operation, bones can be about another and that Held, twenty, even then union would be doubtful. that a verdict for thousand dollars was not excessive.

Appeal County from St. Louis Circuit Court.—Rom. McElhinney, Judge.

John W.

Affirmed. Ray

James F. U. Green, M. den and H. H. Larimore appellant. (1) deposited When the defendant safety platform Edgebrook, on its it was the duty of premises to leave the defendant’s customary liability usual route, rests any injuries plaintiff defendant because of received while up walking premises this track and on not used as sta- grounds tion or station facilities. 5 Elliott on Railroads (3 Ed.) Railway, sec. LeDuc v. 140 2493; 758; S. W. Des- App. 151 432; kins v. Railroad, Mo. Hutchinson on Car- par. (2) Moore on riers, 516; 764. Carriers, 6, ver- prejudice upon partiality dict resulted either from part jury, and because of situation should permitted not be stand; further view of all justice of the facts and ends of circumstances, re- quire reversed, that the ease should remanded for Railway Co., new v. 228 S. W. 780; Jones trial. G-oetz v. 22 Ambs, 172; Mo. Whitsett v. 79 Mo. Ransom, 258; Spohn Railway Railway v. 87 Adams 84;Mo. v. Co., Co., SUPREME COUNT OF MISSOURI.

648 Gibney v. 569; 100 Transit Mo. 204 Co., Mo. Par- 723; y. Harper 217 Mo-. tello Railroad, 661; v. 186 Railroad, App. (3) excessive,! Mo. 296. The verdict is Green- well 224 Railroad, 404; v. S. Johnson W. GefafoCo , v. By., Mo. v. 57; 276 Lessenden Mo. Pac. 238 Mo. 247; (.4) appellant Brady v. 206 Mo. 540. Railroad, When safely respondent had carried from Union Station in Edgebrook, stopped long- St. Louis enough and had the train alight safely him to enable therefrom and he safely alighted from the train and had been afforded opportunity premises by any a reasonable to leave the paths respondent one of the evidence of es- appellant’s duty fully tablishes existed, as carrier was performed, damages and he is not liable for for such in- juries respondent thereafter sustained as the result voluntarily portion walking along of the com- pany’s forming part tracks not of, used as, station grounds (3 or station facilities. 5 Elliott on Railroads Ed.) App. sec. Cleave v. Railroad 2411; Van 107 Mo. Co., Hendrick v. 96; Railroad 136 Mo. 548; Co., Deskins v. Railway App. Fillingham 432; 151 Mo. Co., v. Transit App. Railway 573; 102 Mo. Co., v. Stevens Co., Mo. App. Railway App. 619; Laub v. 118 Mo. Co., 488; Tal- App. Railway Railway bot 72 Mo. Co., 291; v. Waller v. App. Railway 410; 59 Mo. Gunderman v. Co., Co., 58 App. Injuries Mo. 2 White’s “Personal 370; on Rail- ' (5) p. negligence per sec. 557, roads” It is not se stop point beyond for a carrier to its trains at a *4 stopping place usual a station. Moore on Carriers, Railway p. 37, 670; sec. v. 758; LeDuc 140 S. Co., W. Fillingham App. (6) Ap- v. Transit 102 Mo. Co., 573. pellant negligent failing respondent was not to inform in beyond alleged, had been he carried that, the station walking westWardly danger to him of the warn Edgebrook portion that of the track between station and respond- Lake Junction. The evidence establishes territory, with that ent was unfamiliar but that fact by respondent way any ap- in was not communicated ' Yol. 298] APRIL 1923. 649 TERM, pellant’s agents charge operation and servants in dnty part of the train. Before a arises on the of a car- passenger danger rier to leaving warn a of the ap- premises by particular carrier’s it route must pear passenger required warning that the of such dan- gers he was unaware of their is, existence. —that p. Young Railway Moore on Carriers, 39, 679; sec. v. Co., App. Layne App. 93 Mo. 267; v. 175 Mo. 34. Railroad, M. for re- Claude Crooks E. and Charles Morroiv spondent.

(1) negligence guilty Defendant of actionable carrying past past his destination and permitting inviting, causing station him to leave place the train when was at a with he was dark, many proximity pitfalls not close dan- familiar, gers, past notifying without him been carried directing dangers warning him of the station way him out. C’ossitt 224 Mo. Railroad, as to a safe v. App. v. Rail- 99; Mo. Grott Railroad, v. 21 97; Winkler 827; ways 229 Mo. 246; 222 Powell Railroad, S. v. Co., W. v. Railroad, Warden 208; v. 92 Mo. Railroad, McGee App. App. 118 Mo. Laub v. Railroad, 35 Mo. 631; 115 Ind. Doane, 435, York Railroad Co. v-. 488; New pp. 1123- Railroad, 305, 1 157; L. R. A. Wood .sec. Birming- p. v. Melton 1236; 654, 4 R. 1186; C. L. sec. p. (N. S.) 160, 10 sec. 467; C. J. ham L. R. A. Co., 16 negligence guilty (2) of actionable The defendant lighted. Sargent having the station of Railroad, v. 110 Mo. 348; 114 Mo. G-erhart Railroad, v. (3) pp. Defendant App. 919-920. 1345, J.C. sec. 105; notifying plain- negligence in not guilty of actionable past fail- the station carried he had been tiff that proxi- dangerous in close ing him of to warn leave was invited mity effort likely in an ex- resort would Avhichhe and" directing to a safe him as in not himself tricate (4) is not pp. verdict 925-926. 1349, J. out. 10 C. sec. *5 650 SUPREME COURT OF MISSOURI. Injuries jaws: Gingery excessive. head, teeth Supply Injuries v.' 206 400. Co., S. W. wrists and Lyon App. Injuries arms: w. Railroad, 6 Mo. 516. leg: Railways Powell v. 226 Co., S. v. W. 916Hurst Rail- road, 280 Mo. 224 566; Greenwell v. S. Railroad, W. appellant Designated

LINDSAY, 0. The is the Agent Transportation under the Federal 1920, Act of litigation arising .operation conduct out of the system Company of the Missouri Pacific Railroad while property being operated company by of that appeal Director in General of Railroads. His is here judgment due form from a the Circuit Court rendered County twenty of St. Louis in sum thousand dol- respondent, Payne, in- lars, favor of Otto an William fant-suing by following his next the verdict friend, and respondent’s assessing damages jury of a at that sum. fifty dollars. The amount sued for was thousand injuries respondent complained of were sustained through person February, day 1920, on the 19th upon walking fall while which occurred of the tracks the Mis- the side having alighted Company, after souri Pacific Railroad passenger which train a Missouri Pacific from stopped pas- passenger, to let off and which was a County. sengers Edgnbrook Louis St. Station. only Edgebrook, building but station There was gravel, ex- chat alighting made an signboard side of either the track tended signboard “Edgebrook.” is This stop designating east and west which run tracks, side on the south when it position the train point; at that distance of night question, and stopped on the signboard alighted, respondent place importance question alighting place, ais chat peti- apparent on. The later more will be case, by and re- carried alleges tion west aat alight quired to with familiar thereof, by reason APRIL TERM, 1923. *6 Payne v. Davis.

the surroundings in which he found himself, and because and darkness, of the failure of the defendant to provide lights or direct or warn he took him, way which led him to where he fell and sustained in- juries for which he sues. requires

Since a determination of the case considera- tion of physi- many character and relative .the location of objects cal at and near the station and the immediate point where the accident occurred, and the other circum- stances as well under which left the train, and also it because is contended here defendant that fail- light grounds alleged ure to the station is not nor was plaintiff alleged that failure to a cause of going where he after he left the train, the contents petition may by' of as these matters best be shown following language regard. therein used alleging pleading formal and matters,

After as Director G-eneral of Railroads was Walker D. Hines operation charge of train and in property and control of company, and that of the railroad passenger on a at Union and became said boarded p. city at 6:35 m. on the Louis, of St. Station duty the Director evening question, General, of and stop oppo- employees train at and agents said and pas- place reasonably safe for at a and site petition get continues: sengers train, out of Edgebrook that said Sta- states further “Plaintiff County, Missouri, about 7.57 Louis in St. is situated tion city of Mis- Louis, St. Station west miles Union feet west three hundred about and that souri, of the said the south side Edgebrook Station said what is known and time railway said there was line or at. eight hun- about and house, or tool a section called or tool westwardly house said section feet dred railroad tracks said passageway runs under road eight the width right way of about said across over which depth feet, of fifteen about and of means extended railroad said the tracks passageway road bridge, said trestle or SUPREME COURT OF MISSOURI. unguarded, there then and uncovered said tres- though bridge, placed solidly floored with tle or ties against banisters or other, each side hand-rails bridge reason thereof the said trestle thereon, premises passageway at said road and dangerous tracks were under said con- unsafe pitfall premises dangerous on the so stituted controlled operated by Walker D. Hines, and used Director and at a Railroads, aforesaid, General of on said premises right passengers into which leav- ing Station and trains at said Lake Junc- *7 Payne leaving the said Otto tion Station and William place he left were liable to same, train at the resort said pass attempt to cross and over and to and be and .were precipitated injured, into and be and be to fall liable dangerous place so unsafe and was sit- that said and Payne Otto liable the said William uated that was put injured thereby required off if and resort to and permitted train, as hereinafter or said stated, leave nighttime it was all which dark, and when said in the of Railroads, Director General Hines, D. as Walker predecessor in office and said their and his aforesaid, employees running operating agents, so and and servants by passenger trains knew or thereon, said railroad and the circumstances under could exercise of due care Payne Otto the time said William was known before have injured, stated. hereinafter as Edgebrook said Sta- states

“Plaintiff further operated and said used Walker tion and so maintained as Railroads, aforesaid, Director D. General Hines, pas- predecessor so situated a office, his and discharged being leave the senger could thereat same directly op- way passageway premises by of a and said posite of said north side railroad on the the same and highway city street and to a tracks which led County, Maplewood, west- Missouri, and Louis St. Edgebrook there was road, wardly Station from said egress ingress or passageway or means street TEEM, APEIL Vol. right-of-way said tracks from defendant’s and

and highway leading a a street or distance abont highway hundred where there was feet, fifteen north- wardly another station known as Lake Junction on said situated and the north Station, tracks; railroad that on side of said south side of Edgebrook railroad tracks from said said Station to said high- Junction Station there was no street Lake road, -leading passageway right-of- from said railroad premises. way and further states that said

“Plaintiff William Otto past Payne was carried said Station Hines, D. Director General of said Walker Eailroads, agents, employees servants and his aforesaid, as charge operating said that the train, of and Payne then and there rid- which William Otto passenger, ing as carried as aforesaid, stopped by the D. Director General Hines, said Walker agents, servants and aforesaid, Eailroads, of employees operating charge same right-of-way, a distance of-about four on said railroad westwardly past beyond Edge- said hundred was called that said station said Station, brook Payne invited and directed Otto William *8 as Director General Eailroads, D. Hines, Walker aforesaid, employees agents, and servants and his operating charge to leave train, the same said of and point or tool section house and at near said and at said eastwardly from said point eleven hundred a about eight point about hundred feet at a and Junction Lake passageway bridge or eastwardly and said road from Payne passageway Otto the said William and into injured, hereinafter as stated. fall and was caused night a dark that was states further “Plaintiff place at said and there dark it was then and and Edgebrook lights Station, or near said at there Payne was so place Otto William said where nor got required to leave and off and directed invited and SUPREME COURT OF MISSOURI. lights along nor were there train, on or and near right-of-way said .between said Station and said Lake Junction Station, and that said "William Otto Payne did not then and there know he been car- past said ried and he station, was then and there un- surroundings place familiar with the at the where he and.required was so invited, directed to and did leave train, said as aforesaid, and D. Walker Hines,. Director agents, General as Railroad, aforesaid, servants employees, charge operating or of and said train, past failed to inform him that he had been carried said place alighting or of the from said train dangerous inform and him of unsafe failed said and place right-of-way premises, on said and and failed to danger him of warn thereof and failed to direct place safety, him how reach a that said and Wil- Payne liam then Otto and there confused and did know his exact and in location, realize order to place premises right-of-way leave said and and and to extricate himself from the situation in which he had so been left the said D. Director Hines, General W.alker agents, of Railroads, as and his aforesaid, servants or charge employees, operating and said train, see- and westwardly ing light in a direction where westwardly he injured, he afterwards was ascertaining as hereinafter stated, pathway westwardly along right-of- led tracks said way, westwardly right-of-way walked said railroad premises path said over said negligence way, reason of the traveled of said E. Director General of Walker Hines, Railroads, afore- agents, employees, said, and his servants aforesaid, precipitated to fall into into and caused said road passageway under railroad down tracks, bottom a distance about fifteen thereof, feet, the same said railroad crossed whereby or'bridge, beside said trestlé said William injured, Payne follows.” *9 Otto ' APRIL TERM, 1923. length petition injuries The then sets forth at plaintiff falling under the received circumstances injuries described. nature these as disclosed given testimony will later. and considered Aft- injuries describing alleged er have to been sustained the'petition by plaintiff, generally charges that the Di- employees agents, rector General servants and and charge guilty negligence train injuries, charging spe- and caused said follows negligence cifically negligently that said consisted do- things: ing failing following or to do the plaintiff Carrying past Edgebrook said Station; requesting, inviting, stopping directing train and said plaintiff permitting alight to train said where and alight; plaintiff failing give notice that he he did to passed failing give plaintiff any Edgebrook Station; to way proceed go to or to notice or direction which reach give plaintiff failing place safety; any to notice proximity dangerous warning crossing- of said or right-of-way, of said and dan- over said tracks said any give plaintiff gerous failing place; to notice or westwardly along walking danger warning and dangerous place; right-of-way, and of said over said warning plaintiff failing give notice westwardly along path danger walking said and right-of-way; inviting, directing way on said traveled plaintiff permitting said at said to leave westwardly Edge- from said hundred feet about four unguarded said near uncovered brook Station passageway under said said across nighttime it was dark and said when tracks failing lighted; light reasonably place well light failing said traveled Station; said place path where was in- between required leave vited and directed passageway under road the said train, and bridge at the where and said said tracks trestle premises at the injured, *10 656' SUPREME COURT OF MISSOURI.

Payne v. Davis. plaintiff got premises left-and of off said train and at the place plaintiff was liable to and did resort and pass place and over in order safety; be, to reach a of failing guard protect cover, otherwise said road passageway place under said at tracks said as to so prevent plaintiff passengers might and who and were place premises liable to resort to said falling and being precipitated failing plain- and therein; to warn danger falling tiff of the passageway of into said under said railroad and right-of-way; tracks said across fail- ing keep premises place maintain said at said at plaintiff passengers likely and other would resort, reasonably in a safe suffering per- condition; premises mitting place plaintiff said at said to which likely would resort to be remain unsafe and .dan- gerous. plaintiff’s petition And then “further states negligence reason of the defendant’s said Payne injured said Otto William was as aforesaid.” admitting The answer of after defendant, formal allegations, general following awas denial; which, the question defendant answered that train in left Union p. Edgebrook Station at 6:35 m. and arrived at Station p. day at 6:55 m. on and on mentioned, the arrival stopped opposite platform provided at and to discharge at recep- said for the Station passengers; passengers tion of that all on said train, including plaintiff, passenger if he was a on said train, Edgebrook, discharged employees bound for were operating Director General said train on the sta- platform Edgebrook, tion at said station of the same discharge passengers the usual for the stopping from all at that station; trains said train stopped not either east or west said but immediately passengers at the and that all same, .plaintiff, passenger, intending train and the if he was a alight given ample op- to portunity at such full and station, were alight platform

so to and to do, depart said station and from said station a safe route danger and without to themselves. . TERM, APRIL

The defendant that if further averred injured injuries alleged the time such negligence, the result sole injured “voluntarily, time was his own con- traversing walking nighttime venience, upon is the tracks what known as Company Pacific at a the Missouri Railroad open passengers kept or maintained for the use *11 depot forming part depot, grounds, public no of the provided and or station facilities maintained for station arriving departing the use of those at or from sta- the Edgebrook on the line” of or other station of tion the said railroad. general reply denial.

The was circumstances, the scene, issues as to the With parties respective the thus outlined the acts day pleadings, trial on the 20th of the went to Oc- case plaintiff’s evidence, the of 1920. At close tober, again defendant asked for of the whole case, at the close pleadings, the law and the that under the an instruction plaintiff recover, entitled to which the was not evidence gave give. in- the three other court refused court and the substance defendant, the structions asked theory, defining defendant’s is stated as these comparison with the evidence. jury if the train on that ar- told the 2 Instruction parallel stopped opposite to and rival platform for the there maintained or earth with the chat platform or chat discharge passengers, earth and said plaintiff discharged reasonably defendant safe, and safety, for defendant. should be verdict the thereon plaintiff jury if dis- Instruction 3 told plaintiff platform, there- safety charged on said voluntarily, for his own con- nighttime, after in right-of-way at a upon tracks went venience, point forming station facilities part of the station no station, and departing of those the use for plaintiff, right-of-way, fell into tracks while Mo.—42 298 SUPREME COURT OP MISSOURI. ' sluiceway thereby incurring under the tracks,

injuries, the verdict should be for defendant. jury

Instruction 4 notwithstanding told plaintiff might have been at the unfamiliar time with the neighborhood territory immediately adjacent to or surrounding duty plaintiff, station, discharged platform if he was on the at the usual discharge premises passengers, to leave the by the most going up- direct and accessible route, and without right-of-way forming on the part tracks and no depart- station or station facilities for the use of those ing pur- and that if for the pose reaching go upon part his destination did right-of-way forming part no of such facilities, be- cause high- of not familiar with the streets and adjacent ways to said station, and into fell the sluice- thereby incurring injuries, under the tracks, verdict should be for the defendant. given except

For the instructions damages, subject one, measure of to be dealt with later.

Coming primary urged then to the matters here grounds defendant as allegations reversal; and first as negligence. It is contended counsel upon for defendant that the “case is not based the fail- any, part properly light if the ure, on of defendant to grounds Edgebrook,” upon the station at nor “based proposition discharged plaintiff the that defendant the grounds Edgebrook the station and because of unlighted grounds, plaintiff, the undertaking condition' of such

to leave wandered into a station, dan- gerous place injured.” and was urges negligence

Defendant that the set out in petition plaintiff past “that defendant carried said is Edgebrook discharged place him in a Station and dark place and in a with which he not familiar” it and, argued is that “whether or not defendant’s station grounds lighted Edgebrook is not in this case, were Vol. APEIL TEEM, 1923. question that the or whether not defendant furnished

plaintiff adequate egress safe from station is eliminating, not in ease.” The defendant thus as- question plaintiff serts that “the sole is whether or not past grounds inwas fact carried said station and dis- charged place in the at a darkness with which he was acquainted.”

Upon allegations petition contained appears regard claim defendant can- charges petition not he The allowed. defendant past discharged the station and him carried' point about four hundred feet from at a westward grounds, and that there darkness, station lights grounds, along nor on the station or near the Lake between Junc- Station petition alleges pas- The that there tion Station. egress leading immediately sageway from or means of opposite Edgebrook and on the north side Station Maplewood, city and that to a street the tracks westwardly there was no road, from station street egress highway or tracks means defendant’s highway right-of-way leading to a street for a where there hundred feet about fifteen distance of leading.northward highway station known alleges petition that defendant’s Lake Junction. employees him agents inform place past Edgebrook nor of the Station, been carried alighting, to reach nor him how direct where he was danger- safety, unsafe and him of the nor warn charges right-of-way. It defendant ous give failing negligence in with way proceed notice direction walking danger west- safety, him of the to warn right-of-way or traveled wardly tracks, *13 plaintiff alighting alleges right way. that It on said not he ac- which was with did, he the where in confused, was unlighted darkness, in quainted, and seeing a exactly was, realize did not Station light Lake Junction toward westward ' COURT SUPREME OP MISSOURI.

pathway along leading the tracks in westward, walked that direction. petition

It clear from the in seems statements to just attention which has been directed, and from their allegations relation to each whole, other, and as a petition given meaning that the cannot be the restricted for- it claimed defendant’s counsel. It must be al- petition sufficiently charges that the lowed and connects alleged negligent an failure to direct toward the safe egress, way, light warn and usual unsafe and to grounds right-of-way, alleged the negligent station with the carrying past acts of station, alight permitting him to at a darkness with unacquainted. which he Moreover, was defendant appear objected have does introduction of grounds testimony showing that the station and other unlighted. places right-of-way were un- This lighted prominent made condition was (cid:127) testimony throughout the of the trial. course controversy the trial

There no as to unlighted witness for defendant condition. A who had charge of the maintenance of defendant’s track over part here testified the distance from involved, plain- sign Edgebrook sluiceway into which at thirty-five hundred and feet, tiff fell was eleven sluiceway Junction the distance from this Lake Sta- sixty-eight feet. The testi- tion two hundred mony that there accord of all witnesses point Edgebrook, right-of- lights on the nor at except Lake Junction, between where there a short distance was a east of Lake Junction light. plain- near this switch stand switch going westwardly passed the north tiff this switch appears light to have track. The switch been side of the sluiceway into east of the distance located a short light spoken only of as other fell. The vicinity Edgebrook street a small Station not near but west, north and some distance *14 661 TERM, APRIL Payne v. Davis. near of defendant’s tracks and the north end of

north railway bridge company street nnder the overhead tracks. ran defendant’s which duty railway company properly It is the of a

light platforms during its station the arrival and de parture trains, taking discharging passengers; on or proper respects to exercise care in other Lighting ingress egress pas furnish safe to its Platform. sengers platform; (Wal who come Ry. App. 429) Co., 410, ler v. M. K. & T. 59 Mo. and to platforms passengers so of stations that dis-. charged proceed safety from cars can with in the exer by passengers cise of care the usual course taken they platform. .[Gerhart to where would leave the v. Railway, App. Sargent 105; Wabash 110 Mo. v. St. Louis Co., 348.] & S. F. Railroad 114 Mo. subject existing

Following condition as question lights, as to the train from comes alighted stopped; plaintiff and whether it which by Edgebrook Station, and if far so, him how carried beyond. testimony on this some conflict There is important are not case, but facts diffi- feature The defendant has two tracks ascertainment. cult of running east and west. West- Station and east-bound trains north, use the trains bound plaintiff rode was west- The train on track. south alighted the rear east end from bound, engine. train was com- from the third car by were con- posed cars described five cars. The long. fifty-five There some tes- feet ductor length. timony of less West the cars “Edgebrook,” on the sign which was south this station of about two hundred a distance tracks, side of also on the sixty tool house, a section feet stood being thirteen described as tracks and side of south house, the tool length West of west. east to feet fifty feet, one hundred from it about at distance railway, bridge street un- long overhead was the SUPREME COURT OF MISSOURI. which, passed. der defendant’s tracks' The whole dis- sign “Edgebrook” tance from bridge to the overhead twenty-six four was said to-be hundred and who had measured the witness distance. The *15 got he testified when on off the north side from the engine, rear of the third car end he “must have twenty-five thirty bridge.” been from the He says past after the train he drew saw the outline This, tool house. he later on, testified was east of where got he but he he did not at the time off, know the building kind it was. The two cars of this train next spoken engine dark, witnesses as “dead-head.” boy living Brown, fourteen,

Paul a short dis Edgebrook, tance from called defendant, testi night question that on the he fied rode in the dark or engine, got car dead-head of this next to the out the, Edgebrook on south side of the train. On direct “got fifty he it examination he said off of between seventy-five bridge.” feet from the street-car On cross- subject got examination on this he testified: You “Q. bridge1? pretty off almost under the A. Yes, close to bridge? The overhead A. Q. Yes, Q. it. sir. Al bridge? A. most sir.” under Yes, years produced Rose, old,-a seventeen G-erald witness night question testified that on he defendant, engine, rode in car of the train next to the dead-head Edgebrook. got prob- got off this car, off at He as ably the other at the mentioned, did witness front end position next to the He as tender. testified got on off; he direct examination as car when follows: your A. Between “Q. Where was coach? the section bridge.” And on house the car cross-examination: you you bridge? do think were to the car “Q. How close twenty-five Twenty-five Q. A. About feet. feet east bridge? got sir.” Yes, car A. This witness He lived about a off side of the train. the south block got he half north from where off. and a west He .and TERM, APRIL pulled by, until waited the train and walked west the track. got

The other who out of the and tes- witnesses train, position stopped tified as its when was night question, on were the brakeman and the con- They got both off of ductor train. the train away sign the nor-th the side the station side, got house. The when he off was at tool brakeman engine, rear end the third coach from the cars. third and stood between the fourth conduc- cars. tor the fourth and fifth The brake- was between “right stopped op- man testified that the train about posite post;” that about two and one-half cars of post, from the station train extended eastward post. train west of the But, remainder house, nor the tool nor not see the did station house, any notice of either. take testified, He he, *16 position engine the nothing of with could tell as bridge, had not he reference paid the overhead steps objects. down He let the attention to these night Edgebrook, but that at the third ear of anyone passed out positively from remember whether beyond saying in his The conductor that car testimony not. stopped Edgebrook night, that the train definitely speak than as that, more did not undertake got stopped. off one He testified it to where night. Edgebrook train at not tes- engineer the train did fireman on The tify.. length, fifty-five feet with each cars, train of

A five length of engine an entire three would have and tender, probable If, seems little more. feet, or a hundred engine of testimony, this front end of this of the street east side with the flush was almost train stopped, then rear bridge train was when the car approximately one hundred and end Edgebrook, sign at twenty-five the station feet west of the third hypothesis, rear end and, same ' 664 SUPEEME COURT OF MISSOURI. plaintiff alighted car was about two hundred thirty-five sign. feet But west from the station if alighted at a west tool house, he would have nearly sign. been three of the station hundred west

Manifestly, duty railway stop it is the carriers to discharge opposite passengers trains for the at and platforms provided passen purpose. for the If the ger alight beyond required be carried at an in darkness, unusual be notified should alight; where and how to danger; attendant warned given and be such assistance or instructions as necessary reasonably return to are platform, safe to secure opportunity egress for therefrom in the Ry., 'way. [Cossitt usual v. St. Louis & Suburban 224 City Rys. 222 827; Mo. v. Kansas 97; Co., Gott S. W. Ry. App. 631; Warden v. Mo. Pacific 35 Mo. Co., McGee Ry. 208; v. Mo. 92 Mo. v. St. L. I. Co., Pacific Winkler M. Ry. Chicago App. S. 21 Mo. New Co., 99; York, & St.& Ry. p. Co. v. 115 Ind. R. L. Doane, 435; 1249, Louis 4 C. 661.] sec. discharge duty passenger of the carrier to place, in a manner and his destination safe at a safe high degree required same of care

is the the carrier safety passenger passenger of his while inis [Fillingham Transit Co., transit. v. St. Louis 102 Mo. Co., App. Ry. Rearden St. Louis F. & 573, 582; v. S. 215 Rys. Mo. c. In v. K. 105, l. 132.] Co., Gott C. S. W. l. c. 830, was stated: liability, nor

“The carrier is not absolved from high degree passenger merely care, because the very of'alighting, injured is not act nor at while *17 spot alighted very the moment where and when he (Cossitt supra; v. v. Railroad, Railroad, Atkinson 90 Mo. 497); App. is, c. and the carrier of course—as has 489, l. charged repeatedly been Avith of the condi notice held— immediately spot adjacent tions at and discharges where it to conveyances. pas passengers from its If a injured put senger off at an and is is unsafe in consequence, negligence of carrier is considered TERM, APRIL injury. proximate v. Rail- [Cossitt to cause of the supra.]” calling of station The road, stop, stopping did train it coincident of the where alight at the was an invitation supra.] stopping. [Cossitt v. Railroad, testimony There considerable variance was Edgebrook. platform describing the chat Defendant’s employee charge having tracks of maintenance of the platform two hundred testified that this was there length extending ninety in from east west. Other feet length, gave fifty as its one hundred and witnesses on All testified estimates. who others intermediate part subject saying greater agreed that platform the south side the chat or construction was on slope ground was toward of the of the tracks where -tracks north of the and much less side south, sign, ground opposite the station where the immediately track, next to the some distance westward things comparatively All it level. considered seems platform quite did not extend to clear that the chat plgftntiff alighted point the train. petition, by plaintiff tes- and his It is claimed alighted timony from the that when he substance, is was, he did not realize where darkness, surroundings, familiar with the he was not the course he take. and therefore took confused, testimony night very the weather dark; was that the pulled by foggy, the train After inclined to rain. him He saw a short distance. east he first walked building house, there, tool but saw was the recognize nature time as one whose at the did not and and location acquainted He turned and with.

he was He came where walked north. testimony posts and wire. The with fence

enclosed back eastward wire fence extends shows point right-of-way, almost north line of the the north open Edgebrook. The station of of the center space begins platform fence free from north of platform ex- end north of the east at a feet; thirty westwardly one hundred about tends *18 SUPREME COURT OP MISSOURI. 666

Payne v. Davis. point begins extending’ At that west- line fence wardly along’ right-of-way, and was found plaintiff testimony as mentioned above. There was openings that there were one in more this fence by persons getting the west of the' made in through plaintiff’s to or from the station. home northwardly Edge- was about one-third of a mile brook Station. When he found the wire fence on the -right-of-way, north of the turned back to the tracks. He then a saw westward. He found there was path along beaten north rail- side track way. along road near ties, and walked west Walking passed thus westward under the overhead bridge, beyond, street-car then within a short distance bridge over the defendant’s Peres, across the Fiver Des along thence the track which there was on an embank- path following ment, and ties beaten near the passed on the north side track switch, sluiceway passageway walked into the under defend- sluiceway eight ant’s tracks. This was shown to be about defep. feet in width and about fifteen It not guarded by railing, nor was there a handrail bridge lighted. over it, nor was it strenuously urged

It is here counsel for de- plaintiff fendant it is unbelievable that surroundings Edgebrook, familiar with the injured; where he was that he must have known injuries solely them; know due his negligence going to his own in where he did.

At the time of the accident lacked about age. years two months of had died some seventeen His father years previously, mother re- step- married, lived with his mother and and at time father, of the accident lived five or six block from Lake Junction Station. He had before that Maplewood lived Sullivan, suburban towns near- by, and had attended school until he was the seventh grade, support thereafter went work to aid family. shop He worked first about a machine Maplewood, shop at a afterwards down machine town, TERM, APRIL finally, np Dispatch time then for the Post *19 Company, Clothing of the for the Cnrlee accident, going city in He between Lonis. testified St. always employment he walked home had and his by Maplewood gone the thence street to and from gone railway, npon the of defendant railroad and had only, by npon going train from Lake one then occasion “pretty testimony worked Junction. His steady.” he was'that in the record it cannot be Under the evidence acquainted Edgebrook plaintiff so far with said that surroundings charged with to fa and its as Station night surroundings knowledge on of it and its miliar in Ry. question. v. St. Louis-San Francisco [Rearden 215 Mo. Co., 105, 125.] night plaintiff went to defend- of the accident

theOn company in Louis in with at St. ant’s train Union Station Clothing whom he for Curlee a foreman under worked agreed request Company.' this he At the foreman in Brentwood, at a church the Services to attend in home to foreman lived. In order to reach time do plaintiff upon suggestion foreman, of the this, and Taylor, accompanied name was foreman, whose Upon train he learned that it did not train. stop Edgebrook. Tay- stop but at did Junction, Lake plaintiff that he could leave to stated testified, lor who Edgebrook, to and walk thence Lake Junc- the train Taylor’s testimony on cross-examination was tion, up plaintiff suggested walk the track could he also that just running get Edgebrook, to road from to Manchester road. Junction, north, of Lake east testimony plaintiff Taylor’s According said noth- to Taylor, According suggestion. reply to ing to this in stopped, plain- the train called and when Taylor, leaving car,- of the rear door out went tiff (cid:127) stop. another and went on remained who controversy the instructions here over no There is upon peremptory primary arises issue given. The and refused the defendant asked instruction to be determined was and is issue That court. duty in which the given view evidence effect SUPREME COURT OF MISSOURI. dnty defendant owed has been as defined in the and in like eases cited cases. evidence sufficiently negligence failing in establishes of defendant light platform surroundings way, any in its carrying plaintiff beyond platform inviting him alight so, there in the he darkness, and then when failing give warning him or instruction what- question ever. This there out of it.the so, arises resulting whether the course took, injuries, negligence guilty his himself damages precludes recovering a matter of law the defendant.

When the train drew him was alone and in the building, darkness. There was station nor *20 alighting passengers go. mark where should He first walked eastward a distance. He short saw light in that direction. He the east and saw south of the tracks the outline of the small tool which was house, unlighted, a'building he which testified was not whose character and location relative was known to him. He walked to the north side of the of defend says, there wire ant, found fence. was, He by confused his situation. He went back to the track. Looking along light. westward track saw This light was the near Lake Junction Station, distant a little than more one-fourth of mile line. defendant’s He ascertained that near the and on ties the north side pathway. of the tracks, there was a beaten walked -He light, this westward toward the and in the dark night passageway ness into the sluice walked guarded under tracks, which was not defendant’s railing lighted any way, and received from fall injuries arriving therein the he sues. In question presented the answer necessary here it is actually to consider what situation presented, person ordinary prudence similarly awhat proper, by way situated would have it is done, and, also comparison, of test or to consider what he did before upon finally taking assumption the course he an took, actually lighted, platform was or that the train APEIL TEEM, 1923. stopped opposite sign. bad been directly tbe station plat His first movement eastward toward tbe platform lighted any way, and if form, tbe bad been apprise tbis wonld bave been him of sufficient to his situa although platform nnligbted, tion. But if tbe stopped platform, train bad been about tbe center tbe discharged oppo nearly and thus him near tbe center or sign, site to tbe station and he bad thence walked a little eastward, and thence northward to the line of defend right way, ant’s be ac be did tbe tually discharged, way be would bave found tbe unob open, opening structed and because there anwas there with no fence tbe for a of about one hun distance thirty beginning dred and north side of tbe at tbe east end of feet, tbe

platform, extending west to or beyond platform. tbe center of Since be took tbe tbe steps brought naturally that wonld bave him to a safe .egress discharged platform bad be been tbe as con platform lighted tended bad tbe been defendant, or, steps guidance; for bis those and since where be actually bring alighted, platform, failed to him on tbe premises, or to an on tbe but, outlet from defendant’s contrary, brought him a was barred the wire and since on return fence; tracks, bis only on tbe tbe visible tbe one westward line of path by tbe and a beaten side of tbe tracks, defendant’s track seemed way, be was familiar lead *21 particular danger surroundings nor tbe with the guilty lay way, be be said that was of it cannot attempting negligence himself in to extricate such negligence placed by tbe in be was tbe situation of which recovering damages. him from to bar defendant, as to be cannot be said otherwise than be took The course circumstances-, take under tbe was liable to or tbe one be might similarly not bave taken. Go situated that others sluiceway way ing into tbe inwas, the fall did, be tbe practically certain and because inevitable, darkness, tbe or out between road tbe was no cross there alighted accident, of tbe OF 670 SUPREME COURT MISSOURI. country of the on either side broken was

and of fields and woods. question in

Under the this case the facts whether injuries plaintiff’s negligence were due to his own was jury. question proper to he submitted to the It cannot acting guilty negli be said that in gence did he was [Robison law. Floesch as matter v. Const. Cooper Realty 224 W. v. Mo. Co., 332; Co., 709; 236 S. Ephland Ry. Mo. 348; Root v. K. C. S. 195 Mo. Co., v. Peoples Ry. Ry. Kleiber Co., 187; Pac. 137 Mo. v. Co., Siegrist v. Mo. 240; Arnot, 200; Mo. 86 Adams v. Joseph Ry. 553.] Hannibal & St. 74 Mo. Co., par- It is that the verdict is contended result tiality per- prejudice, therefore should be appears to stand. The to have been mitted case well and nothing fairly on both and there is shown sides, tried justify remanding a reversal and record grounds mentioned. here Lastly earnestly it is insisted verdict, if by not than allowed is excessive all, to stand less magnitude of the sum and that awarded is $10,000, prejudice. partiality in itself an indication This for the extent and nature of the calls a consideration of by plaintiff. injuries At sustained sued past injury years time of the seventeen height, weighed age; feet one was five two inches pounds, good thirty health, and was hundred and capable the service which was described as passage employed. sluiceway into which he fell composed deep; of it the bottom was about fifteen jaw on the left His stones. fractured side loose places. near the fractures was back in two On of these portion. jaw, near the front Two the other comer of fracture were side front loosened. on each teeth right broken; and there wrist Both bones of his left wrist, bone of of a smaller a fracture called shape scaphoid gives and attachment bone, long the fore- bones of hand bones *22 TERM, APRIL right thigh arm. His bone was broken in a transverse directly the fracture, across bone. When one found, perforated end of this bone had flesh and skin of his leg. had body, Pie various bruises his about re- great injuries ceived shock from his and loss of blood. hospital He sufficiently having was taken to a where after recovered surgical given from the shock, treatment was splints applied to him, the various fractures. He hospital eight remained At weeks. the time of eight injuries months after the trial, were received, testimony was that as a result of fracture of the jaw misalignment jaws, bone there was im- an pairment ability food, masticate and a restriction opening impairment of his mouth. This and re- pronounced permanent. striction were At the time of right the trial the wrist was somewhat crooked, restricted incapable lifting power. of much movement, The good, leaving result pairment as to left hand was not an im- rotary motion both and extensive in that thigh pieces matter. The his bone failed to unite, and performed operation, whereby an there later was it was sought apposition bring the b'ones into and union, plate steel fastened to screws. The union bones thigh opera- did not bones of result they the trial at the time of not united. tion, and right leg, ob- At time he could use the was bandage during liged brace and metal wear bags day, night keep leg two that between of sand and at sleep, strapped init his not move to it so he would only. testimony sleep medical his back had to thigh permanent, injury was that the was leg right inch reason of the about one shorter the injury, hanging leg merely on, if place, parts bone ever took fractured union only result could doubtful, operation. repetition in the former made the effort lump his forehead where above his head He had a still enough going open further, fall. Without cut *23 OF SUPREME COURT MISSOURI. Burrell.

State v. upon in the evidence record, been based said, has injuries plaintiff’s were numerous and se- show probability constitute a will hereafter in all vere, permanent impairment appearance, of his serious strength throughout life. health and be matter, reversal should In this view nor verdict, of excessiveness had on account judgment should and the reduced, thereof amount concur. Brown, GG., affirmed. Small The foregoingopinion PER CURIAM. LiNdsay, opinion hereby adopted in of Court Banc. All C., is except judges J., Graves, G. Woodson, concur, judgment. except For the amount in all J., concur who they agree to $15,000. Appellant. BURRELL, THE STATE v. BIRDIE Banc, May 22, In 1923. No Failure Give: Re- INSTRUCTION MANSLAUGHTER: FOR Assigned quest: New Trial: Consideration on Error in Motion for (Sec. 4025, 1919) Appeal. R. Tlie S. declares tliat “whether statute jury writing upon not, requested must instruct the court necessary questions arising in the case are for law all verdict; giving . . . and a their failure their information in cause, felony good cases of shall he when to so instruct jury guilty, setting aside the verdict of the defendant is for found granting defendant new In the trial of for murder trial.” upon manslaughter; justifying an instruction was evidence there degree, the first second on murder in court instructed degree. guilty jury murder the second found defendant manslaughter gave relative no instruction court requested therefor, punishment no such instruction and defendant ques- except failure to instruct all court’s did not case, arising but did her motion a new law tions of specifically attention to its failure the court’s call instruct trial mandatory, manslaughter. Held, is that the the law statute sufficiently alapé pre- for a motion new trial and the defendant’s