113 Mo. 570 | Mo. | 1893
The controlling question in this case, as already seen, is whether the testimony adduced to support the first count in the petition is sufficient to sustain the verdict.
It will have been observed that the gravamen of the petition is contained in its concluding words:
I. It is quite clear from the testimony that the daughters of the plaintiff “did have' time to get aboard” and even to be seated before the train started. But, under the authorities, the defendant company did not need to wait till the passengers were seated before the cars started.. “As soon as a passenger has fairly entered the vehicle, the carrier may start without waiting for him to reach a seat, unless there is some special reason for doing so, as in the case of a weak or lame person, or of a passenger on the outside of a coach. And the ground of the exception must be brought to the carrier’s notice," or he will be justified in starting in the usual manner.” 2 Shearman & Redfield on Negligence [4 Ed.] sec. 508. So that, neither upon the facts nor the law is the plaintiff entitled to recover on this charge in the petition.
In the circumstances heretofore related, it was no part of the duty of the defendant’s employes to “alight from said train and assist the passengers thereon,” and negligence cannot therefore be based on such alleged failure. When access to the cars of a railway company is easy, as in the case at bar, such assistance cannot be claimed as a matter of right. 2 Shearman & Redfield on Negligence, sec. 510. It has been ruled' that it is
As before stated, the testimony shows that on the night of the accident the .moon was shining, and there is no testimony indicating in the slightest degree that the absence of stationary lights from the platform had any connection with the injury, nor does it appear that the defendant company’s employes were aware of Yarnell’s being on the train in any other capacity than that of a passenger, if indeed they were aware that he was on the train at all; and there is no testimony on either of these points.
There 'is not a particle of testimony that Yarnell entered the cars in attendance on his daughters. So that the doctrine of the right to “welcome a coming or speed a departing guest” has no application here. And it is to be noted that the petition does not count upon the failure of duty on the part of the defendant’s employes toward him; the charge of failure of duty on the part of the defendant company consisted in ‘ ‘the negligent starting of said train before the passengers had time to get aboard thereof, and it is not charged that sufficient time, was not given Yarnell to get off the train, or that the company had any notice of hi's desire in that particular; nor, if there had been such a charge,' would there have been any evidence to support it. Even if Yarnell had actually been upon the train in
In such cases the du,ty is dependent upon the knowledge of the carrier, and the negligence' upon the non-performance of the ascertained duty; without the presence of these constituent elements, liability, which is but the legitimate result of a known and non-performed legal duty, cannot exist.
The foregoing remarks and the authorities which abundantly support them show that the court below erred in giving, at plaintiff’s instance, the following instruction:
‘‘The court instructs the jury that if you believe and find from all the facts and circumstances in evidence that the husband of plaintiff, Eobert M. Yarnell, took his two daughters to defendant’s train, and that when defendant’s train arrived at Brandsville station the defendant’s servants failed to appear and assist said Yarnell’s daughters on said train, then said Yarnell had the right to assist his daughters on such train; and if the jury further believe that the said Yarnell did go upon the platform of defendant’s train to assist his daughters on the train, in the absence of defendant’s servants, then the said Yarnell had a right so to do;*579 •■and that if defendant’s servants started said train \before said Yarnell had time to alight from said train, and in alighting from such train he did so as speedily and ■carefully as possible and was killed in so doing without negligence and carelessness on his part, then they will find the issues for the plaintiff and assess her damages in the sum of $5,000.”
And it may be further observed of this instruction that it is a departure from the cause of action as set forth in the petition, in that it introduces a new element of liability, one unknown to the petition, to-wit: that •“the defendant’s servants started said train before said Yarnell had time to alight from said train.”
II. This record is utterly barren of any testimony •showing or tending to show how or in what way Yarnell came to his unfortunate death. His locality at the time his daughters and Wall left him on entering the cars, whether he was on the bottom step of the car, on the car platform or on the depot platform, is entirely unknown. And it is equally unascertained and unascertainable whether his death resulted from an attempt to alight from the cars while in motion and he was thus thrown beneath them and killed, or whether, having alighted, he ventured too close to the cars and was struck by them as they stated and hurled to his death. It has been suggested that it will be presumed that Yarnell was in the exercise of 11 due care.” This may be granted, but, while indulging this presumption, it must not be forgotten that everyone is presumed to properly acquit himself of his engagements and his duty. Lenox v. Harrison, 88 Mo. 491 and cases cited. And that carriers of passengers are by no means •outside of the pale of this favorable presumption. So that the result is that one presumption rebuts and neutralizes the other, like the conjunction of an acid and an alkali.
■ For the foregoing reasons the judgment will be reversed, and as there is no evidence on which to base a recovery we will not remand the cause.
