186 Mo. App. 645 | Mo. Ct. App. | 1915
— Action by plaintiff for damages resulting from injuries sustained by him while a passenger on one of the defendant’s trains. The petition is in the usual-form, charging that while plaintiff was a passenger on the defendant’s road in transit from Paducah, Ky., to St. Louis, Mo., the defendant “negligently and carelessly caused and permitted, in a manner to plaintiff unknown, the car which plaintiff boarded at Nashville, Tenn., in which plaintiff was then and there being transported by defendant, for hire, as aforesaid, to be derailed while moving rapidly, and wrecked, and thereby directly and proximately caused
The answer is a general denial.
There was evidence on the part of plaintiff to the effect that he, a Russian Jew, had lived in this country for several years, but did not understand the Em glish language very well. Intending to go to St. Louis to buy goods for his store, plaintiff boarded the train of defendant at Paducah, Ky., having purchased a ticket entitling him to first-class passage to St. Louis. He testified that when he reached Duquoin, Ill., he changed cars, boarding a train for St. Louis; that when he did so, he asked the conductor for a sleeper and the conductor told him that the train did not carry sleepers. He entered a car which he called “a Pull ear,” but which it appears was an ordinary day coach. Shortly after midnight he- changed from that into a chair car, paying the conductor $1.25, the extra fare charged for riding in that car. He took a seat near one end of the car and early in the morning awoke, and desiring to go to the toilet room, he tried the door of that room in the car in which he was riding and found it locked. He then went into an adjoining car, which it appears was a Pullman and was met by the colored porter, of whom he inquired where the toilet room was. The porter told him it would be “opened directly.” Plaintiff testified that he went back into the chair car and was not sure whether he had sat down or was standing up when the car was derailed and he was thrown and received the injuries complained of, the car being thrown over on one side. The testimony of plaintiff was very positive that the car in which he had been riding — that is, the chair car — -was the one which was derailed. He denied very positively that he was in the sleeper when the accident occurred. He was helped up and received medical and surgical treatment when the train arrived at St. Louis, par
On the part of defendant there was testimony to the effect that the chair car in which plaintiff had been riding was not overturned; that the wheels of the rear truck of that chair car had left the rails and ran along the ties for some ten or fifteen feet; that the chair car remained standing in such a position that anybody could sit in it or walk through it without any difficulty after the train stopped; that the sleeper immediately back of this chair car was the only car in the train that had turned over; that plaintiff was in this sleeper at the time he was hurt, attempting to wash in the toilet room-; that the conductor of the sleeping car, seeing him there and in his socks, asked him what he was doing there and while they were talking the sleeper turned over. Plaintiff had told the porter of the sleeper, according to the latter, that he had a berth in that sleeper. Plaintiff was afterwards picked up by members of the train crew or perhaps others, and carried into a car of the train and brought to St. Louis.
The contention, of defendant in this case is that plaintiff, not having a Pullman car ticket and not being entitled to ride in that car, was a trespasser and could not recover.
At the instance of plaintiff the court instructed the jury, in substance, that if they believed from the evidence that plaintiff was a passenger upon a train of defendant at the time he claims to have been injured, “then, having received plaintiff upon board of such train, the due obligation of defendant to plaintiff was to use the highest degree of care practical among prudent, skillful and experienced men in that same kind of business, to carry him safely, and a failure of the defendant (if you believe there was a failure) to use such highest degree of care would constitute negligence on its part; and the defendant would be respon
On behalf of defendant, the court instructed the jury as to the credibility of witnesses; that the bur-then of proof is on plaintiff, defining that, and as to the weight to be given the opinion of experts.
In support of its theory, defendant asked the court to give to the jury the following instruction:
“If the jury find from the evidence in this ease that passengers riding on the train on which plaintiff was riding at the time of the wreck referred to in this case were required to pay extra compensation before being allowed to ride in any sleeping car on said train; and if the jury further find from the evidence in this case that the plaintiff knew of said requirement at the time of and prior to said wreck; and if the jury further find from the evidence in this case that the plain
The jury returned a verdict in favor of plaintiff in the sum of $1750,- judgment following, from which,interposing a motion for new trial and excepting to the action of the court in overruling it, defendant appealed.
The only points argued here for reversal of the judgment and only errors assigned, are to the giving of that part of the instruction which is italicized; the refusal of the instruction offered by defendant which we have set out, and to the action of the court in refusing to strike out evidence of plaintiff as to the reputation for truth and veracity of a witness, as it appeared by plaintiff’s own testimony that he did not understand the meaning of reputation or truth and veracity.
Disposing of this latter contention, we do not think it tenable. It is founded on matter growing out of cross-examination of plaintiff as to the meaning of the words “reputation for truth and veracity.” Plaintiff had testified in rebuttal, referring to a certain witness who had testified against him, that he knew the reputation of this witness for truth and veracity; that it was not good. Counsel for defendant cross-examined plaintiff as to what he understood by these terms and it developing that he could not give anything like a cor
The only objection leveled at any instruction is to that part of the first instruction, which we have set out and underscored. We are unable to see that including this in the instruction was in any way harmful to'defendant, as is argued. It is true defendant had not pleaded and was not relying upon the defense'of contributory negligence and the theory upon which it introduced its evidence was not, strictly speaking on the theory of contributory negligence on the part of plaintiff but of nonliability of defendant, by reason of plaintiff being where he had no business to be. We do not think that this part of the instruction should have been given, but do not think that embodying it in that instruction constituted reversible error.
The main question in the case turns upon the refusal of the court to give the instruction we have set out, which was asked by defendant.
The law is well settled that a railroad company, engaged in the carriage of passengers, is required, so far as it is capable, by human care and foresight, to carry them safely, and it is responsible for all injuries to its passengers arising from even the slightest-negligence on its part. When a passenger suffers injuries received in consequence of the breaking down or overturning of the coach in which he is riding, a prima-facie presumption arises that such casualty was caused by negligence on the part of the carrier, and the bur-
A railroad company, a common carrier, is responsible for the operation of the train to which a sleeping car or Pullman, as commonly called, is attached, or of which train it is a part, the sleeping car company, if the sleeping car is under a separate ownership, not being responsible for the operation of the train. [4 Elliott on Railroads (2 Ed.), sec. 1617a.] Mr. Elliott further says in his work above referred to and in
We have found no case either in the decisions of the courts of our own State or elsewhere, exactly covering the particular point here involved and can only determine-it upon the application to it of principles which underlie the responsibility of common carriers.
In Holland v. St. Louis & S. F. R. R. Co., supra, the railroad company was refused an instruction to the effect that if plaintiff, after entering the car was furnished with a seat and voluntarily left it and was standing when thrown down by the jar, and that his so standing contributed to his injury, he could not recover. The Kansas City Court of Appeals held the instruction was properly refused, saying (l. c. 124): “ It is true plaintiff was provided with a seat when he entered the car, but he afterwards got up and went into
.Judge Bland, speaking for our court, said in Wagoner v. Wabash Railroad Co., 118 Mo. App. 239, l. c. 246, 247, 94 S. W. 293: “A railway company carrying passengers, discharges its primary duty to a passenger when he is safely seated in his car; if, after being so seated, he leaves his seat, while the train is in motion, and goes from his car to another on private business with another passenger, he assumes the risk of being thrown and injured by the ordinary motion of the train and cannot recover, unless he can show his injury was caused by the negligence of the company and that his own negligence did not contribute thereto.” In the same case, in a separate opinion, Judge Nortoni, speaking for himself and for Judge Goode, has said, quoting from 2 Shearman & Redfield on Negligence (5 Eel.), sec. 524:
■“Passengers have a right to presume that all passenger cars are equally safe; and they ought not to be restricted to any one. Nor can they be required to sit still. The law, which makes liberal allowance for the natural restlessness of dogs, must surely make equal allowance for the restlessness of the average man. Long train journeys are monotonous and trying, at their best; and active men find it impossible to sit still all the way; No special reason for moving need be assigned. ’ ’
In the same work and section, and immediately following the portion quoted by Judge Nortoni as above, it is said: “The only question is, whether, under all the circumstances, the act was one natural to
It is also said in the beginning of that same section 524: ‘ ‘ There is no rule of law forbidding passengers on a train to change their seats or to move from one car to another, so long as they act prudently in doing so. Therefore the mere fact that an injury would not have been suffered, had the passenger remained in the seat or car which he first took, is not proof of contributory negligence. ’ ’
While the point here involved is hot expressly passed upon by our court in Johnston v. St. Louis & S. F. R. Co., 150 Mo. App. 304, 130 S. W. 413, that case was decided on the assumption that the passenger has a right to move from one car to another, to leave his seat where he would be safe, and pass out of that car by way of the vestibule.
In Costikyan, Admr. v. Rome, Watertown & Ogdensburg R. Co., 58 Hun. (65 N. Y. Sup.) 590, it is held that in the absence of instructions or notice from the company not to do so, a passenger in going from one car to another while the train was in motion, assumed only the ordinary risks incident to such action on his part and had a right to assume that appliances for moving the train were safe; that if injured while so doing in consequence of their not being safe, the railroad company is liable. This decision was affirmed by the Court of Appeals as see 128 N. Y. 633.
So the Texas Court of Civil Appeals held in Sickles v. M., K. & T. Ry. Co., 13 Tex. Civ. App. 434, 39 S. W. 493. That also was substantially the holding of the Georgia Supreme Court in Cotchett v. Savannah & Tybee Ry. Co., 84 Ga. 687.
In Chicago, Milwaukee & St. Paul Ry. Co. v. Lowell, 151 U. S. 209, it is held that even proof that the
In Martin v. Southern Ry., 51 S. C. 150, a passenger was injured while attempting to board and ride a baggage car attached to a passenger train, on which train he was a passenger. The Supreme Court of South Carolina said (1. c. 155): “We do not think that the. particular place where a person may be on a passenger train should necessarily and conclusively determine whether or not such person is a passeng-er. One who has paid his fare and procured his ticket may .disregard some rules prescribed by the carrier, and yet such conduct on his part would not change the fact that he was a passenger, nor relieve the railway company from liability.”
In Illinois Central R. R. Co. v. Sandusky, 14 Ky. Law 767, it is held by the Kentucky Superior Court, that a passenger has the right to occupy a car other than that in which he had been assigned or in which he had taken a berth, and was not guilty of contributory negligence in so doing.
While these cases are not precisely in point they serve to illustrate the respective duties and obligations of carrier and passenger.
Our conclusion in the case at bar is, on consideration and application of the authorities, that this instruction which was asked by defendant was properly refused. Plaintiff here had purchased a ticket entitling him to first-class passage on the train. The fact that he was injured while temporarily in the sleeping car attached to that train for some purpose of his own, if it is true, as the evidence tends to prove was the case, and for the purposes of this decision we will assume that it is the case here, does not take from the railroad company its obligation and duty to plaintiff as a passenger. He was a passenger, having paid
Plaintiff was not attempting to ride in the sleeper as a regular passenger in it; he was there, in that car, casually; for a temporary purpose; to wash his hands. We would hesitate long and yield only to controlling authority to the contrary, before we would hold that by so acting, he, as a passenger entitled to ride on that train to which a sleeping car was attached, having paid full fare to ride on that train, was, by that act beyond the pale; that the carrier was absolved from its duty to him as a passenger. Yet this is what this refused instruction ashed by defendant sought to have laid down as the law.
We see no reversible error in the case. The judgment of the circuit court is affirmed.