Evans v. Interstate Rapid Transit Ry. Co.

• Decision Date: 29 June 1891
• Citation: 17 S.W. 489,106 Mo. 594
• Parties: EVANS v. INTERSTATE RAPID TRANSIT RY. CO.
• Court: Missouri Supreme Court

17 S.W. 489

106 Mo. 594

EVANS v. INTERSTATE RAPID TRANSIT RY. CO.

Supreme Court of Missouri, Division No. 1.

June 29, 1891.

INJURY TO PASSENGER — ENTERING MOVING TRAIN — ABATEMENT OF ACTION.

1. Plaintiff's husband, while entering a car on defendant's elevated railroad, was carried along by the moving train, between it and the railing of the station platform, and dropped to the street below, and was killed. The railing was 12 inches from the car, and the only evidence of defect was that about three weeks after the accident defendant reduced the space between the car and railing to 6 inches. The railing was necessary, and reducing the space did not lessen the danger. Held, that an instruction that it was the duty of defendant to maintain a safe structure, and that, in determining whether the train was held for a reasonable time to enable deceased to get on, the jury could consider whether the railing was reasonably safe, was error.

2. The fact that, about three months after the action was commenced and service had on defendant, it consolidated with three other companies, would not defeat plaintiff's right of recovery.

Appeal from circuit court, Clay county; J. M. SANDUSKY, Judge.

Action by Elizabeth Evans against the Interstate Rapid Transit Railway Company. Verdict and judgment for plaintiff. Defendant moved for a new trial and in arrest of judgment, which motions being denied, it appealed. Reversed.

Warner, Dean & Hagerman, for appellant. John W. Beebe, W. W. Wallace, and H. F. Simrall, for respondent.

BLACK, J.

The plaintiff, as the widow of John Evans, brought this suit to recover damages for the death of her husband, who was killed while attempting to get on one of defendant's trains at State Line station. To the east and west of this station the defendant's road is an elevated steam railroad. The cars are reached by a stairway leading up from the sidewalk to a small station-house constructed on a platform which is on a level with the railroad track, the track being 25 feet above the surface of the street. The platform extends out 4½ feet from the house, and has a railing around the outer edge. Passengers in reaching the cars pass into the house, and thence through the same, and out at an opening 9 feet wide to the platform. The railing begins at the house on each side of this opening, and extends out 4½ feet, and then turns to the right and left, forming an open space. When the cars stop, the rear platform on the front coach and the front platform on the rear coach stand in front of this open space. At the time of the accident the railing extending to the right and left was 12 inches from the cars. The petition states, in substance, (1) that the railing was unsafe and dangerous to persons getting on and off trains by reason of their being subject to the peril of being caught, and carried along between the railing and cars; (2) that the servants in charge of the train negligently failed to stop and hold the train for a sufficient length of time to allow the deceased to get on, and that because of such negligence he was forced between the railing and cars, and thrown down to the street below, and killed. The further evidence upon the first alleged ground of recovery shows that the station-house was not completed at the time of the accident, the doors and windows not having yet been put in place. A few weeks thereafter the defendant placed an additional plank or post at the corners where the railing turns to the right and left, thus reducing the space between the railing and cars at those points from 12 to 6 inches. The plaintiff's evidence on the other issue is to the following effect: The train in question was going east, and deceased was a passenger on it. When it reached the station in question he got off at the front platform on the rear car. He then saw Mr. Finley, his son-in-law, who was in the act of getting on the same train at the other car platform. Evans spoke to Finley, and the latter said, "I am going up town." Evans said, "I believe I will go too." The further evidence of Finley is that he stepped on one coach platform, and Evans got on the first step to the platform of the other coach; that the conductor started the cars so quick that he had to throw himself around on the platform of the car; that Evans was advanced in years, slow of motion, and a little lame in one leg, and was carired along and forced in between the railing and cars, and at the end of the railing fell down to the street below; that during this time the conductor was standing on one car platform; that there were gates on these car platforms, which were closed when the cars were in motion and opened at the stations; that the gates were open when he and Evans got on the car platform...