Carroll v. Interstate Rapid Transit Co.

• Decision Date: 07 December 1891
• Citation: 107 Mo. 653,17 S.W. 889
• Court: Missouri Supreme Court
• Parties: CARROLL v. INTERSTATE RAPID TRANSIT CO.<SMALL><SUP>1</SUP></SMALL>

17 S.W. 889

107 Mo. 653

CARROLL v. INTERSTATE RAPID TRANSIT CO.¹

Supreme Court of Missouri, Division No. 1.

December 7, 1891.

DIRECTING VERDICT — INJURY TO PASSENGER — BOARDING MOVING TRAIN — CONTRIBUTORY NEGLIGENCE — REVERSAL ON APPEAL.

1. Whether the showing made by plaintiff (with every favorable inference therefrom) tends to support the issues on his behalf is a question for the court. If the latter finds that it does not, it is error to submit the case to a jury.

2. Plaintiff boarded an elevated steam railway car in motion, by getting on the sheet-iron covering of the steps of the last platform on the train, and maintained himself in that position by holding to the iron gate that barred entrance there, until struck by a structure near the track, and knocked into the street below. Held, in the circumstances detailed in the opinion, that he was negligent as a matter of law.

3. A railway company is not liable for failure to take steps to avert injury from one who has placed himself in danger, where it has not omitted to discharge any duty towards such person.

4. Where a passenger, without the consent of the carrier, selects a place to ride which is obviously not intended for that purpose, and is hurt by reason of hazards peculiar to that position, he has no cause of action.

5. Where it appears that, in every view of the facts disclosed, plaintiff has no right of action whatever, it is proper to reverse a judgment for him, without remanding the cause for new trial.

(Syllabus by the Judge.)

Appeal from circuit court, Cass county; CHARLES W. SLOAN, Judge.

The facts fully appear in the following statement by BARCLAY, J.:

This is an appeal from a judgment for plaintiff for $3,208.41, entered upon a verdict in the circuit court of Cass county. After the usual motions and exceptions, the defendant appealed. The action is for personal injuries. The defendant company was operating an elevated railway line in Kansas City, Mo., extending thence a short distance into the state of Kansas. On this line defendant ran passenger-cars and exercised the vocation of a common carrier. The place where the plaintiff's mishap occurred was near the James-Street station on that line; the time, October 20, 1886. Plaintiff and his brother came to that station after dark on the evening in question to take passage on one of defendant's trains. The brother succeeded in getting aboard at the usual entrance for passengers. The plaintiff did not, but he attempted to attach himself to the outer side of the gate and sheet-iron covering, and closing the steps of the rear platform of the last car, as the latter passed him in motion, and so far succeeded that he was hanging on there when the train passed a structure of the Armour Packing Company, which stood near the track, and swept him from his position into the street, some 20 or 25 feet below, inflicting serious injuries. This structure, or "cattle chute," was within a distance 230 or 240 feet from the station, according to plaintiff's witnesses, and within 6 inches of the passing cars. The material portions of the testimony given by plaintiff's brother (referred to in the opinion) are as follows: "When I got on the car the conductor upbraided me. He spoke rather sharp and cross about me getting on. He said, `You are liable to get hurt because you were getting on a moving train,' and he scolded me because I tried it. We both went into the car. I took my seat near the door. He collected the fare from me. After we got a little piece, and the conductor was collecting the money from me, Mr. Anderson, who had his head out of the window, pulled it back, and said, `There is a man hanging on behind.' It startled me to hear it. At the same time I supposed it would be natural enough for a man to be on the rear end of the car. I did not know the condition of the cars. I had not observed that. He says, `He has got a lamp in his hand.' Mr. Anderson seemed to be rather excited about it. When he told the conductor that this man was hanging on, the conductor was making my change, and says that `if the stock-drive hits him he will get off.' The conductor said that while he was collecting my fare. As he mentioned the stock-drive, Rotert says, `Look out for your arms.' Mr. Anderson was looking out of the window, and Mr. Rotert says, `Look out for your arms,' and then he pulled back his arm. After we passed the cattle-drive, Mr. Anderson looked out, and says, `He is off.' At that the conductor passed through the cars at the rearend of the rear car, and looked out. It was after the train had passed it. I don't know whether Mr. Anderson could see or not. I should think he could. It was a distance of 40 or 45 feet from where Mr. Anderson sat to the rear of the platform. With his head out of the window, he could see that distance on the curve. There was a sharp curve there, and I suppose he could see the rear end of the rear car, although he was in the front coach. I said nothing at the time Anderson made the remark, but sat still. I didn't think at the time it was my brother; had no idea he was hanging on there. I thought probably he would come on the other train. I had a notion to wait for it myself. I sat there with no notion that there was a man hanging on. I didn't say a word. I knew my brother had no lamp, and consequently didn't think this man could be him. I sat there perfectly indifferent. I didn't think it was my brother there. I thought it was a trainman with his lamp. Nothing suggested to my mind that any one was in danger at the time. I went on to Mulberry street, some blocks above, the terminus of the road at that time. I waited for my brother to come there, supposing he was on the other car. He didn't come, and I went to the Union Depot. Waited for him there about half an hour, and while waiting there the conversation that took place in the car came to my mind. I became alarmed that it might have been he that was on behind and have met with an accident. I went over to the drug-store, and telephoned to see if there had been an accident, and found that there had been. I went home, and found my brother there, and the surgeon dressing his wounds." All other essential facts are mentioned in the opinion of the court.

Warner, Dean & Hagerman, for appellant. M. A. Fyke and W. S. Shirk, for respondent.

BARCLAY, J., (after stating the facts.)

At the trial the defendant insisted that the testimony did not warrant the submission of the case to the jury, because it disclosed plaintiff's own negligence, as a clear conclusion of law, in the premises. But that objection was overruled, and an instruction in the nature of a demurrer to the evidence was refused.

1. This presents the first point for decision. The rule governing its consideration is well understood. It is for the court to say, in the first instance, whether the showing made by the plaintiff (with every reasonable inference therefrom favorable to him) legitimately tends to support the issues on his behalf. If the court so holds, it is for the triors of fact then to respond whether or not that showing is satisfactory and convincing to establish the truth of the facts upon which the submitted case rests. In the present action the question must be determined whether plaintiff exercised ordinary care for his own safety; or, to put the statement into a somewhat more practical form, whether his conduct, in the opinion of the court, was such as a person of ordinary prudence and caution, in the same circumstances, would have exhibited, according to the usual and general experience of men. It is for the court to declare...