83 Mo. 608 | Mo. | 1884
This action was commenced by plaintiff to recover, as damages, the statutory penalty, for the" death of his wife, a passenger on one of defendant’s trains, alleged to have been occasioned by defendant’s negligence.
The petition substantially alleges as follows:
1. The incorporation of defendant and its operation of a railroad. 2. The creation of the relation of carrier and passenger between plaintiff’s wife and defendant, and defendant’s duty arising therefrom, to transport her from St. Joseph to Easton and to stop the train “a sufficient length of time for her to pass therefrom with safety.” 3. And yet the plaintiff says that the agents, ■servants and workmen of defendant, in charge of the aforesaid train, wholly disregarding their duty in that behalf, did not stop at said station or depot a sufficient length of time for said Mary Waller to pass from said train, but carelessly and negligently started said train while the said Mary Waller was passing therefrom, and the said Mary Waller without any negligence on her part in attempting to pass from said train to the platform as aforesaid, was thrown suddenly and violently down between the car and the platform and under the train aforesaid, and was run over, crushed, wounded and lacerated by the car steps and carriage wheels, and otherwise so
The answer was a general denial with a plea of contributory negligence. On the trial plaintiff obtained judgment, from which the defendant has appealed.
The first action of the court excepted to, as shown by the record, was the reception, over defendant’s objection, of the following evidence of witness Bledsoe:
“ When Mrs. Waller got to the car door, the brakeman, Ben Lynch, was with her, and as they came out of the car door he said to her: ‘Come on; hurry up’; when I first saw the brakeman he was coming out of the car door with Mrs. Waller; the train was then in motion; he said, ‘ Come on; hurry up ’ ; just as he came out of the car door, he being ahead of her; when I next saw bim he was on the depot platform and she was on the platform of the car, he again said, ‘hurry up,’ and reached out his hand for her.”
We are of the opinion that this evidence was properly received as being part of the res gestee, and as tending to-rebut the defence of. contributory negligence set up in the answer, inasmuch as it must have had a tendency to-induce the belief in the mind of Mrs. Waller that she might safely alight from the train, while moving at its. then rate of speed.
No other objection was made to the reception or rejection of evidence, and without incorporating in this opinion what was said by the witnesses, it will be sufficient to say of it, that plaintiff’s evidence tended to establish the case made in the petition, and that while plaintiff was attempting to pass from said train to the depot platform, the train started by the negligent act of defendant, without having given a reasonable time for Mrs. - Waller to alight, whereby the accident resulting in her death oc
On this state of the evidence the court instructed for plaintiff as follows: “The court instructs the jury that it was the duty of the defendant, as a common carrier of passengers, by its agents and employes, to have stopped the passenger cars at the platform, at the depot, for a sufficient length of time to have made it safe for ingress and egress of passengers into and from the same, and to enable them to get on and off with safety. And if the jury believe from the evidence that said Mary Waller was the wife of the plaintiff, that at the time stated. in the petition she was on defendant’s train as a passenger therein to be conveyed to defendant’s station at Easton, and that when said cars arrived at the Easton station said Mary Waller attempted without negligence on her part in so doing, as defined in the instructions, to pass from said train to the depot platform, and that while attempting so to do said train and cars were started by the negligent act or careless conduct of those in charge of the train, without having given a reasonably sufficient length of time for said Mary Waller to get off said car, and that in consequence of such negligence of defendant’s employes in starting said train, the said Mary Waller, without negligence on her part directly contributing thereto, was injured, and that her death was occasioned or caused by injuries so received, they will find for plaintiff and assess his damages in the sum of five thousand ($5,000) dollars.
“The defendant’s agents and servants to whom the ■
The following instructions were asked by the defendant, of which the first and third were given, and the others refused: 1. If the jury believe from the evidence that defendant’s train stopped at the depot platform in Easton for a time sufficient to enable Mrs. Waller, the deceased, to leave the car and pass to the depot platform with safety, they must find for the defendant. 2. If the' jury believe from the evidence that the train made but a momentary stop at the town of Easton, and, that under
The instructions given by the court fairly presented the law governing the case and are justified by the rulings of this court in the cases of Doss v. R. R. Co., 59 Mo. 37; Straus v. Railroad, 75 Mo. 190; Nelson v. A. & P. R. R. Co., 68 Mo. 595 ; Price v. Railroad Co., 72 Mo. 418. It is insisted by counsel that the second instruction given for plaintiff is erroheous in requiring of defendant a higher degree of care and vigilance with reference to passengers than the law imposes, in declaring that defendant was bound to exercise the strictest vigilance in carrying the deceased to her destination and to set her down safely; and that for want of care in so doing, that is for
In the case of Kelly v. R. R. Co., 70 Mo. 609, the court in speaking on this subject said: “The carrier was bound to exercise the strictest vigilance in conveying passengers to their respective destinations, and in setting them down safely.” Had the words “utmost vigilance” been used in the instruction instead of “strictest vigilance” it would not have been (according to the authorities cited by defendant’s counsel) subject to the objection made, which in reality amounts to nothing more than a verbal criticism, the word utmost being quite as comprehensive in its scope as the word strictest. Instructions two, four and five were properly refused, because they ignored the following principle stated in the case of Doss v. Railroad, 59 Mo. 37: “ Whether the attempt of plaintiff to step from the cars when the train was in motion, was, under the circumstances of the case, such negligence as would relieve defendant of all responsibility for accident is a question of fact for the jury.”
Objections are, also, urged to this instruction, but inasmuch as the record fails to show that. the action of the 'court in giving it was excepted to at the time, under repeated rulings of this court, the objections made cannot be considered here. Perceiving no error justifying our interference, the judgment is affirmed with the concurrence of the other judges.