32 Mo. App. 438 | Mo. Ct. App. | 1888
— This is a suit for personal injuries. The trial below resulted in a judgment for plaintiff, from which the defendant has appealed to this court.
The petition, after alleging that iffaintiff, on the
The answer of defendant was a general denial.
The plaintiff testified that he took passage on the train of defendant, and concerning the accident which occasioned his injuries his evidence was as follows: “ When we got within a short distance of Lee’s Summit the engine whistle blew for the station, and the porter of the car called out the station Lee’s Summit. I could hear the steam under the car putting on the air-brakes ; the train slacked its speed ; I got ready to get out; I gathered up my things and picked up a small paper box I had with me and put it under my right arm. I was acquainted some at Lee’s Summit and I waited a few minutes. There was a good deal of snow on the ground, and it was dark; I did not hear any noise and I thought the train was stopping. I went out on the platform of the car- — the front platform. I was thinking that the train was stopping, but I looked up and saw no lights. I stepped down onto the second step of the platform of the car, and I was still in mind that the train was stopping, but I saw it was still in motion. I then turned around to go back into the car. I held myself firmly with my left hand to the car railing, but I was jerked off. I was standing on the second step at the time I turned around to go in, on the same side the depot that Lee’s Summit was on. As I started to turn around to go back into the car, the train suddenly jerked ahead, as if steam was suddenly let on, or the car running over a switch, and it jerked me
It appears from the evidence that no one saw plaintiff when he was thrown from the train or left it. One, L. T. Newcomb, introduced by plaintiff, testified that he came out of the car immediately in front of the one in which plaintiff rode, that he saw plaintiff for a moment on the platform, but as he, Newcomb, was aiming to, and did alight from the train while it was running through the station, he could give no account of what caused plaintiff’s fall. This witness stated that he noticed no ;jerk or jar of the train, at the point where the accident occurred, but added that he was watching for a place to jump, and that the train might have jerked without his having noticed it.
At the close of plaintiff’s evidence, the evidence of the two witnesses mentioned, the defendant asked an instruction in the nature of a demurrer to the evidence, which the court overruled, and defendant excepted.
The evidence introduced by defendant showed that, owing to a mistake made by the engineer in charge of the engine, who was making his first trip west, pulling a passenger train, the train ran past the station at Lee’s Summit, the engineer testifying that he thought he was not to stop at that station unless he was flagged by the station agent, after the whistle blew for the station. All of the trainmen testified that the whistle blew for the station, that the speed of the train was checked, and that the notice of the arrival at Lee’s Summit was given by the porter in the car where plaintiff was riding. None of defendant’s witnesses saw plaintiff leave the car, nor did they know for some time thereafter that he had received injury in attempting to leave the car at that point. The defendant’s evidence was in conflict with that of plaintiff ’ s as to the speed of the train in
The court instructed on behalf of plaintiff as follows :
“1. If the jury find, from the evidence, that the defendant, on the twenty-fifth day of December, 1884, received the plaintiff upon one of its cars, and undertook to carry him from the city of Sedalia, Missouri, to Lee’s Summit, Missouri, then it became the duty of defendant, as a common carrier of passengers, to safely carry the plaintiff to the place of his destination.
“2. If the jury believe and find, from the evidence, that the defendant had an established station on the line of its road at Lee’s Summit, with a depot for the reception and discharge of passengers, and that it was and became the duty of defendant to stop the train on which the plaintiff was riding to enable him to get off at said depot, and that the agents and servants of defendant gave the usual and ordinary warning and sig-' nals to plaintiff, by which plaintiff was led to believe that said train was nearing said depot and was slacking its speed, and that, by reason of said warning and signal, plaintiff had good reason to believe, and did believe at the time, that said train was about to stop at said depot for the purpose of enabling the plaintiff to depart from said train, and that plaintiff, relying on said warning and signals, proceeded with due care and caution, and without negligence on his part, to get off the car in which he was then riding, for the purpose of alighting from said train, but that defendant, through its agents and servants, so carelessly and’ negligently ran and managed its said train as to throw plaintiff off the platform of the car in which he was riding, and thereby plaintiff received the injuries complained of, then the jury will find for the plaintiff, and assess his damages in a sum not exceeding twenty-five thousand dollars.
“If the jury find, from the evidence, that the plaintiff is entitled to recover in this action, then they will assess his damages in such sum as they may believe,
To all of which the defendant excepted, and the court, at defendant’s request, gave the following :
“1. The court instructs the jury that while the law makes the plaintiff a competent witness in his own behalf, yet the jury are not bound to attach to his evidence the same weight and credibility as if he was a disinterested witness, but in considering his evidence the jury may consider his interest in the result of the suit, and attach to his evidence such weight and credibility as, under all the facts and circumstances in evidence, they may believe it entitled to.
“2. The court instructs the jury that, under the law of the state of Missouri, the plaintiff was not required to leave his seat in defendant’s coach on approaching the depot at Lee’s Summit until the defendant’s train came to a stand-still at said depot, and that defendant was bound to give him sufficient time to leave his seat and alight from said coach, after the train came to a stand-still at said depot, and that if the jury find, from the evidence, that the plaintiff, on approaching Lee’s Summit, left his seat in said coach and went out upon the steps of the platform of said coach while it was running at the rate of from fifteen to thirty miles an hour, and while so standing thereon was, without the fault or negligence of the defendant, thrown therefrom and injured, then the jury will find for the defendant.
“ 3. The court instructs the jury that the fact that a railroad company fails to stop one of its passenger trains at the point of destination of a passenger, does not entitle a passenger to attempt to leave such -train when the same is running at the rate of from fifteen to thirty miles per hour, but it is the duty of such passenger to remain on such train until the same does stop at some
“4. The court instructs the jury that if they believe and find from the evidence that plaintiff jumped or stepped off of defendant’s train of cars, while the same was running at the rate of from fifteen to thirty miles an hour, in order to avoid being carried past his station, and was injured thereby, then he cannot recover herein, and the jury will find for the defendant.
‘ ‘ 5. The court instructs the jury that it devolves upon the plaintiff to establish his case to the reasonable -satisfaction of the jury by a preponderance of the evidence, and unless the jury find that he has so established it, they will find for the defendant.”
All of which were given as asked except the second, which was modified by the court adding the words in italics.
The first error complained of by counsel for defendant is the court’s refusal to sustain the demurrer to plaintiff’s evidence. It is claimed that plaintiff’s evidence showed that he was guilty of such contributory negligence as ought to have precluded a recovery.
As a general rule in this state, contributory negligence, to be available as a defense, must be pleaded.
In our opinion, the case at bar does not fall within the spirit and object of section 800 of the Revised Statutes, 1879. It cannot be reasonably claimed that the plaintiff was riding or remaining on the platform of the car in the sense condemned in this statute. As before suggested, he was induced to go there to alight from the train, by.the conduct of defendant’s agents and servants. The whistle signaled the station, the train checked, the porter announced the station- — what might have been reasonably expected of a passenger expecting to leave the train at that point ?
“ When the defendant, by his own negligent or wrongful acts or omissions, throws plaintiff off his guard, or when the plaintiff acts in a given instance upon a reasonable supposition of safety induced by the defendant,
It is also claimed that plaintiff’s second instruction enlarged the issue presented by the pleadings. The petition states that “defendant * * * carelessly and negligently passed beyond said depot, which, when plaintiff ascertained, he tried, with due care, to retrace his steps into the car, at which moment * * * the defendant negligently, carelessly and recklessly put on a full head of steam, thereby suddenly jerking said train and car on which plaintiff was traveling with such force and speed as to throw plaintiff,” etc. The language of the instruction complained of is, “but that defendant, through its agents and servants, so carelessly and negligently ran and managed its said train as to throw plaintiff off the platform of the car,” etc. The evidence introduced and relied upon by plaintiff was confined .strictly within the limits of the allegations of his petition. It was the management of the train at the place where the injury occurred and in passing the depot that was complained of. The instruction, we think, did not go beyond this. While it did not follow the exact wording of the petition, under the evidence, limited as it was, it certainly presented no issue outside of the pleadings. The case is unlike that of Waldhier v. Railroad, 71 Mo. 514, and similar cases cited by counsel for defendant, where one cause of action was stated in petition, and an entirely different cause was submitted in the instructions.
The petition contained all, if not more than the instructions contained and it follows that it is not a case of declaring upon one cause of action and recovering
It is urged here that the trial court erred in modifying the defendant’s second instruction by adding the words, “without the fault or negligence of defendant.” Even if there was merit in this argument, as the defend, ant failed to specifically call the attention of the court below to it in the motion for a new trial, we are precluded from a consideration of it. Bollinger v. Carrier, 79 Mo. 318; State ex rel. v. Burckhartt, 83 Mo. 430; Hubbard v. Quissenberry, post, p. 459.
Prom the most careful consideration we have been able to give to the points raised by the lear ned counsel we find no error. The plaintiff’s case, in a great measure, depended upon his own evidence, which was in conflict with defendant’s evidence upon one or two of the material points. This court, however, does not weigh the evidence — that is left to the trial court and the jury. The cause was fairly presented to the jury. The instructions on behalf of defendant were very favorable.
The judgment of the lower court is therefore affirmed.