Cossitt v. St. Louis & S. Ry. Co.

• Decision Date: 23 November 1909
• Citation: 123 S.W. 569
• Parties: COSSITT v. ST. LOUIS & S. RY. CO.
• Court: Missouri Supreme Court

123 S.W. 569

COSSITT v. ST. LOUIS & S. RY. CO.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

Rehearing Denied December 14, 1909.

1. CARRIERS (§ 303) — CARRIAGE OF PASSENGERS — PERSONAL INJURIES — SETTING DOWN PASSENGERS.

It is the duty of a carrier of passengers to carry them safely to their destination, and put them off at safe places.

2. CARRIERS (§ 305) — CARRIAGE OF PASSENGERS — PERSONAL INJURIES — PROXIMATE CAUSE.

The act of a street car company in carrying a passenger by his station, and directing him to alight in a dark and strange place near a dangerous culvert crossing the right of way and under the belief that he was near the station platform, is the proximate cause of his subsequent falling into the culvert from the end of the platform over it, mistaken for the station platform, in his effort to reach his destination.

3. CARRIERS (§ 333) — CARRIAGE OF PASSENGERS — CONTRIBUTORY NEGLIGENCE.

A street car passenger carried by his station and directed to alight in a dark, strange place has the right to assume that the place is safe, in the absence of directions how to reach his destination.

4. DAMAGES (§ 158) — PLEADING — VARIANCE — PERSONAL INJURIES.

A petition, alleging that plaintiff's thigh bone was fractured, and that he was permanently injured and sustained other injuries, and that by reason thereof he was compelled to lie on his back for 13 weeks, is a sufficient basis for proof as to the bruising and stiffening of his knee, in the absence of an affidavit required by Rev. St. 1899, § 655 (Ann. St. 1906, p. 671), to show that defendant was misled.

5. TRIAL (§ 260) — INSTRUCTIONS — REQUESTS.

A request for an instruction already given is properly refused.

6. CARRIERS (§ 333) — CARRIAGE OF PASSENGERS — CONTRIBUTORY NEGLIGENCE.

A street car passenger discharged into a dark, strange place between stations, who is ignorant of the fact that he has been carried by his station, must use ordinary care for his safety in proceeding to his destination; but he is not required to walk on the right of way to the next station.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by John H. Cossitt against the St. Louis & Suburban Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action brought by the plaintiff for damages sustained by him in the city of St. Louis on the 18th day of September, 1903. In the petition it is alleged: That on the said 18th day of September, 1903, about 8 o'clock p. m., and after dark, at or near the corner of Vandeventer avenue and Morgan street, the plaintiff became a passenger on one of defendant's street cars for a trip westwardly, and paid his fare; that plaintiff was a stranger in said city, and soon after entering the car requested the defendant's conductor to stop the car for him to alight at a station on defendant's said railway known as "Clara station," which was a regular stopping place for passengers to alight. It is alleged: That it was the duty of the defendant's servant to carefully and safely carry the plaintiff to said Clara avenue station, and safely and without negligence land him and allow him to alight from said car at said station, and for that purpose to stop said car at and opposite a platform of said station; that when a car was stopped opposite said platform it was safe for passengers to get out of the same whether day or night; but that defendant's agents and servants negligently failed to stop said car at said Clara avenue station, but carried plaintiff 100 feet beyond the same; that plaintiff on said trip was seated in said car, and, believing he was near said station, arose and walked to the rear platform, and, after being there awhile, the conductor stopped said car and invited and directed plaintiff to alight at said point 100 feet west of said Clara avenue station on defendant's right of way; that plaintiff thereupon alighted after dark upon defendant's right of way where said car stopped as aforesaid, and did not know and could not see where he was, but supposed he was at a point near the said platform. And plaintiff states: That the place where he was invited, directed, and permitted to alight from said car was an unsuitable and dangerous place after dark to land a person alighting there by reason of the fact that a person so getting off of said car could not proceed southwardly to the public streets by reason of fences and sheds along defendant's right of way, and northwardly there was a steep descent of about 5 feet from said railway's embankment, and in a west-wardly direction there was a dangerous ditch, sewer, or culvert crossing defendant's right of way about 50 feet distant; that defendant's agents on said occasion wantonly, and with gross negligence, gave him no warning that said culvert or ditch was near to the westward point where he alighted, and gave him no directions how to reach a place of safety, and with gross negligence failed to give him notice that he had passed Clara avenue station, or that he had not landed in close proximity to the same; that, after alighting, plaintiff looked back and could see no platform, there was no light at said Clara avenue station, and by the light of the rapidly receding car he caught a glimpse of a platform crossing defendant's tracks distant about 50 feet, which platform was similar in appearance to the platform crossing defendant's tracks at said Clara avenue station, and which said platform which he saw was over said sewer, ditch, or culvert and extended about six inches southwardly of the south rail of the southernmost track of the defendant's railway and there ended abruptly; that said platform or crossing over said ditch or culvert was the nearest platform to the place where plaintiff alighted, and, being apparently the Clara avenue station platform, and plaintiff, being unable by reason of the darkness to see his way, in attempting to continue his journey to a public highway on foot, walked on and along defendant's right of way to and upon said platform or crossing over said ditch, sewer, or culvert and southwardly upon the same towards Cabanne avenue, which he was seeking, and fell off of the end of the said platform down a distance of about 18 feet onto the ground and into said ditch, sewer, or culvert, and was greatly and permanently injured, sustaining a double fracture of the right thigh bone between the knee and hip; three of his front teeth were driven inwardly, his face and hands cut, and he sustained other cuts and wounds, and by reason of which he was obliged to lie constantly on his back for 13 weeks, and was confined in a hospital for more than 4 months; that plaintiff had alighted prior to said occasion two or three times at said Clara avenue station. There is a platform crossing said defendant's tracks similar in appearance to the platform from which plaintiff fell as aforesaid, but which leads to steps descending about five feet or more to a walk upon which passengers can safely reach Cabanne avenue, which plaintiff was seeking to reach on the occasion aforesaid, and plaintiff avers that in walking southwardly on said platform, when he was hurt, he followed the custom which he had theretofore pursued at the several times he had landed at the said station and had walked southwardly on the platform there on his way to Cabanne avenue. Plaintiff states that the defendant and its servants in charge of its said car were guilty of acts of gross and wanton negligence in carrying him past Clara avenue station as aforesaid, in stopping said car and inviting, requesting, directing, and permitting him to alight where he did as aforesaid; in not giving him notice that he had passed said station as aforesaid; in not giving him any notice which way to proceed to reach a place of safety; in not giving him any notice of the proximity of the said dangerous crossing over said culvert, ditch, or sewer; and in not giving him any notice of the danger of walking westwardly along its said tracks — which acts of negligence each and all directly contributed to plaintiff's injuries, and the defendant was further grossly negligent in not having a light burning at said Clara avenue station at the time plaintiff alighted as aforesaid, which said negligence also directly contributed to his injuries. The damages were laid at $10,000 compensatory and $5,000 punitive. The answer was a general denial, coupled with a plea of contributory negligence. The reply was a traverse of the new matter in the answer.

The evidence tended to show that on the 18th day of September, 1903, about 8 o'clock at night, the defendant received the plaintiff as a passenger on one of its street railway cars in the city of St. Louis and undertook to transport him westwardly to one of its stations located on Clara avenue. The plaintiff was carried about 100 feet beyond his destination, to wit, Clara avenue, and alighted from the car about 50 feet from a platform or culvert similar to the one at Clara avenue. Plaintiff testified that when he got on the car he told the conductor that he wanted to get off at Clara avenue. On three occasions before this plaintiff had gone out on one of defendant's cars and had gotten off at Clara avenue. There is a station at this place. On these occasions plaintiff got off on this platform. At these times he described his conduct as follows: "I got off the car at the Clara avenue station at the north side, crossed the tracks over the board walk, went down the steps and along the sidewalk to Cabanne avenue, and then to Mr. Jarvis' house, about one-half block distant." On this occasion, a short time after plaintiff had taken his seat in the car, the conductor came around and collected his fare, and he requested to be put off at Clara avenue, and the conductor said, "All right." Prior to this occasion, the plaintiff had never been west of Clara avenue station. When plaintiff thought they were nearing Clara avenue, he got up...