Waller v. Missouri, Kansas & Texas Railway Co.

59 Mo. App. 410 | Mo. Ct. App. | 1894

Gill, J.

I. Defendant’s counsel have, in a lengthy brief and argument of forty-four pages, urged many reasons for a reversal of this judgment. To take these up and discuss them seriatim would extend this opinion beyond any reasonable limit. We shall notice the more material of these points. All the complaints relate to the court’s action in giving, refusing and modifying instructions. At the close of the evidence, thirteen instructions were asked (two offered by plaintiff and eleven by defendant, and most of them, too, quite lengthy.) The court gave the two requested by plaintiff; gave also, without change, three of those asked by defendant; and besides gave four others for defendant, though modified in some particulars, as will be seen by reference to the statement.

The case may be thus generalized: Plaintiff, while about to become a passenger on one of defendant’s trains at Higbee, and while passing over the depot platform, fell over a box and was injured. In his petition he charged, as the twq causes of this injury: First, the negligent failure of the defendant to light up the platform where passengers were in the habit of entering and leaving the trains; and, second, that defendant carelessly deposited, or permitted to be deposited,'the box or obstruction. Defendant met these allegations by a general denial coupled with a counter charge that the plaintiff was injured through and by means of his own negligence.

II. There was an absence of any testimony tending to show that any of the defendant’s servants placed the box in the way of the passengers on the platform, or that they had any prior notice, actual or constructive, of its being there. Hence at the close of the evidence, the plaintiff' offered, and the court gave, an instruction which limited the right of recovery to the alleged failure to light the platform. But, notwithstanding this absence of evidence tending to charge the defendant with negligently placing the obstruction on the platform,, the defendant asked, and the court gave instructions on that theory of the case, and,, by these, left it to the jury to say whether or not that charge of negligence had been proved. And right here we may as well • dispose of the point in defendant’s brief that the court’s instructions were conflicting and inharmonious.

There ivas an inconsistency; but it was induced by the conduct of defendant’s counsel; was brought about by an erroneous instruction given at their request, and therefore defendant can not complain.. Defendant’s instruction numbered 2 was improperly given. By reference thereto it will be observed that the jury were, in effect, told that they should find for the defendant, unless the box or obstruction was placed on the platform by some agent or employee of the defendant, or that it had been there such a length of time as to imply notice to such servants of the defendant. This was error, and for two reasons: In the first place, as already said, there was no evidence on which to base such an instruction; and, in the second place, it was error to tell the jury that the mere existence or nonexistence of the alleged obstruction comprised the whole ease. This instruction shut out entirely the charge of the failure to light up the passenger platform, which was, indeed, the' gravamen of plaintiff’s complaint.

III. The suggestion in defendant’s brief, that plaintiff’s first instruction was erroneous, first, because it authorized a recovery for defendant’s failure to light the platform, while the petition charged the injury to be due also to an. obstruction on the platform; second, that such failure to light was not the proximaté cause of the accident; third, that the .accident did not occur on the passenger platform; and, fow-th, that it was therein erroneously left to the jury to determine what would constitute contributory negligence, etc., áre all without merit.

The case is grounded on two causes contributing to the injury; and it has been well said that, when several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or- any of these causes. Ring v. City of Cohoes, 77 N. Y. 83. There was here, according to plaintiff’s evidence, two efficient, proximate-causes,' both contributing to the injury inflicted. The party, therefore, who by his or its negligent act, brought about one or both of these, is liable for the injurious consequences. As was said in Banks v. Railroad, 40 Mo. App. 464: “It matters not that other concurrent causes (not arising from plaintiff’s fault) may cooperate in producing the damages, or in the aggravation thereof, the party originally moving and guilty of the negligent act which sets in motion the concurrent condition of things, is liable for the damages thus inflicted.” And in further answer to the above objection (that the failure to light the platform was not the proximate cause of plaintiff’s injury) we may quote here, as in the Banks case, from the supreme court of Pennsylvania: “In determining what is the proximate cause, the true rule is, that the injury must be the natural and probable consequence of the negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.” Hoag v. Railroad, 85 Pa. St. 292. It was known by the agents and servants of this defendant that baggage, freight and' express matter was likely to be lodged on this platform, and unless the platform was lighted on dark nights, it might have reasonably been anticipated that persons coming to take passagé on defendant’s trains would probably stumble and fall over these obstructions. That such results were anticipated is manifest, for lamps were in fact provided for lighting this platform, and were fastened to the outside of the depot building; but it appears beyond question, that on this night when the plaintiff was hurt these lamps were left unlighted.

In answer to the suggestion that this injury did not occur on the platform intended for the use of passengers, it is only necessary to say that the jury so found, and that, too, on evidence strongly in favor of that position. While it is true that the local agent testified that these platform extensions, running north and south from the depot, were constructed for the purpose of affording facilities for the handling of baggage, express matter, etc., and was not intended for the use of passengers in entering into or alighting from trains, yet other evidence abundantly showed that these extensions were part and parcel of the one passenger platform along the track in front of the depot building—all used, and apparently so intended, for the accommodation of people in entering into or departing from defendant’s passenger trains.

The further suggestion that the plaintiff’s first instruction was faulty in not specifically defining contributory negligence is also without merit. By reference to this instruction, it will be seen that the right to recover on certain facts is qualified by the clause, “and without negligence on his part contributing thereto.” These general words of qualification were, under the circumstances, entirely harmless, if, indeed, they were not proper. The court, at the instance of the defendant, gave an instruction (number 6) which clearly advised the jury what conduct on plaintiff’s part would constitute contributory negligence; so, then, the court’s charge, being taken altogether, was full and complete in that regard. Halliburton v. Wabash Railroad, 58 Mo. App. 27.

IY. In our opinion, the lower court did not err in its modification of defendant’s instructions numbers 4, 6, and 9. It will be seen by inference to these instructions, set out in the statement, that, as originally drawn, the defendant sought to have the court advise the jury that, if it (the railway company) had constructed the portion of the platform where plaintiff was injured for use in handling its freight, baggage and express matter, then it was under no legal obligation “to furnish or equip its platform with reference to the presence or safety of passengers,” nor to light the same, etc. The court added: “Unless the jury find that it ivas necessary for passengers to use that part of the platform in getting on and off the cars, or that it was used by passengers without objection on the part of the employees of the defendant.” The instructions, as thus requested by the defendant, were, under the circumstances of this case, very unfair and improper. It matters not as to what use the defendant may have originally intended the platform where the plaintiff fell, if, in fact, at the time of the injury it was used by the defendant as a passenger platform, for use as a means of ingress and egress to and from its trains. Passengers will not be held to a knowledge of such original sepret intentions, when, as shown by the proof, the entire 160 feet,was in actual use as one continuous platform for the accommodation of its passengers in entering and alighting from its trains. The facts here are quite different from those of the Gtunderman case, decided by, us last term, 58 Mo. App. 370. There the plaintiff, sauntered away from that portion of the depot and platforms designed for and used by the traveling public, and went where he, as a passenger, had no business or right to be; while here, the evidence shows, the plaintiff, Waller, was occupying that portion of the depot and platform which the traveling public uniformly, and, by defendant’s consent, ordinarily and habitually occupied and used.

Changes made in other instructions are noticed and found to be no substantial matter of complaint. The court rightly refused defendant’s instructions numbers 5, 7 and 8, the first named (number 5) because meaningless, the second (number 7) because relating to a charge of negligence abandoned by the plaintiff, and the last named (number 8) because it relieved the defendant of all liability if (and for that reason alone) the platform was not originally intended for use of passengers.

Y. Lastly, the trial court committed no error in refusing to give defendant’s peremptory instruction to find for the defendant. “A railway company,” says Mr. Wood in his valuable work on railroads, “is bound to keep its stations and premises in proper repair, and properly lighted, and to exercise proper care in other respects; to furnish a safe ingress and egress for, and to prevent injury to its passengers who come upon them. The duty owing by the company in this respect extends to all who come upon the station premises in pursuance of the invitation which it holds out to the public; it embraces passengers who come to take passage on any of its trains, and those who leave its trains at that point; and in each case the duty continues for a reasonable time before and after the departure of its trains. 2 Wood on Railways [Ed. 1894], sec. 310.

In this case, the jury have (on evidence fully sustaining it) found the defendant remiss in the legal duty to light its passenger platform at Higbee station; that it negligently failed so to do, and that, by reason thereof, the plaintiff was injured. The jury also found (and that, too, on ample evidence) that, at the time, the plaintiff was exercising ordinary care.

The judgment, then, will be affirmed.

All concur.