Yarnell v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 31 January 1893
• Citation: 21 S.W. 1
• Court: Missouri Supreme Court
• Parties: YARNELL v. KANSAS CITY, FT. S. & M. R. CO.

21 S.W. 1

YARNELL v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri, Division No. 2.

January 31, 1893.

CARRIERS — INJURIES TO PASSENGERS — PLEADING AND PROOF — PRESUMPTIONS.

1. A carrier need not wait for a passenger to reach her seat before starting the train, unless there is some special reason, as in case of a person outside of a coach, and in case of such exception the carrier must have notice thereof.

2. Where access to a train at a station is easy, it is not the duty of the carrier's employes to assist a passenger in getting on board.

3. It is not negligence for a carrier to start its train at a station before a person who has assisted a passenger on board has had time to get off, unless it has notice of his intention to get off.

4. In an action against a carrier for the death of a person who has assisted a passenger on board the train, and who was killed in getting off, where the negligence alleged is that the train was started before the passenger had time to get on board, an instruction allowing a recovery if the train was started before deceased had time to alight is erroneous, as a departure from the cause of action set forth in the petition.

5. In an action for the death of a person killed by a train at a station, on the ground that the train started before he had time to alight, where there is no evidence how the accident happened, or whether he was on the train or the station platform when thrown under the train, the company cannot be held liable because of the presumption that he was in the exercise of due care, since there is also a presumption, in favor of the carrier, that it performed its duty.

6. Negligence on the part of the carrier cannot be presumed from the mere fact of an accident and injury to a person.

Appeal from circuit court, Howell county; W. I. Wallace, Judge.

Action by Sarah H. Yarnell against the Kansas City, Ft. Scott & Memphis Railroad Company for the death of her husband. There was a verdict and judgment for plaintiff, and defendant appeals. Reversed.

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

Action for damages for the death of plaintiff's husband, the petition claiming that such death was caused by the negligence of the defendant, in the manner following, to wit: That plaintiff's husband, at 3 o'clock A. M. on July 7, 1890, took his two daughters to Brandsville, a station on defendant's road, to put them on a passenger train due about that hour; that, when arrived, no employe of defendant appeared to assist his daughters upon the train, and that he helped them upon it; "that before he could get them safely on said train the servants and employes of defendant carelessly and negligently started said train in motion, and that the said Yarnell, alighting therefrom, fell, and was run over and killed by defendant's said train of cars; that said train barely stopped at said depot and station, and wholly failed to give said parties time to get aboard thereof; that in consequence of the negligent failure of defendant's servants and employes to alight from said train, and assist passengers thereon, and the negligent failure of defendant's servants and employes to have lights on said platform and at said station, as aforesaid, and in consequence of the negligent starting of said train before passengers had time to get aboard thereof, the said Robert M. Yarnell was run over and killed by defendant's train of cars, as aforesaid." A second count in the petition contained substantially the same averments as the first, with the following in addition: "That the platform at said station was out of repair, and unsafe for use by the public; that it was rotten and broken in many places, and that, in attempting to alight from said moving train, deceased stepped on a decayed plank in the platform, which broke, and caused him to fall back under the train, by which he was killed, and that the negligence of defendant in having an unsafe platform caused his death." The answer contained a general denial, and a plea of contributory negligence, and plaintiff replied. Having introduced her testimony, the plaintiff rested, after having dismissed as to her second count, and the court instructed the jury to disregard any testimony on that count. Defendant declined to offer any testimony, but demurred to that offered by plaintiff, which demurrer was overruled. Under the instructions given the jury returned a verdict for plaintiff in the sum of $5,000, and judgment went accordingly, from which defendant appeals. The record has been printed in full and has been carefully read. The testimony, in substance, shows this state of facts: Robert M. Yarnell the husband of plaintiff, was a strong, active man, nearly 44 years old, at the time of the accident which is the basis of this action. He lived, with his family, some seven miles from the station of Brandsville. About 2 o'clock on the morning of the 7th day of July, 1890, he went with his two daughters, — one married, and the other single, — to Brandsville, to put them aboard the cars of the defendant company. George Wall, a cousin of the young ladies, accompanied the party. The daughters were going to the home of one of them, Mrs. Curry, who lived near McDonald. Arriving at Brandsville at about 3:15 A. M., the party proceeded to the depot, where the father bought tickets for his daughters, only, as neither he nor Wall intended to become a passenger. There were no lights on the platform of the station; but the moon was shining, and, when the expected train arrived, it stopped, and the agent brought out a light, and the party proceeded to get on the train. The father and George Wall assisted the young ladies to get on the train, and George Wall, taking the two valises from the hands of the father, left him either standing on the bottom step of the car, or else on its platform, or else on the depot platform, and went with the ladies through the car which they first entered, and to the second or third seat of the next or chair car, where the ladies obtained seats. About that time the train started. Leaving the ladies and the valises, Wall went to the platform of the car, where he saw a negro, whom he took for the porter, standing on the steps, looking backward. This, if the porter, was the only employe, aside from the agent of the defendant company, that Wall saw, up to that time. Nor had any persons been seen by Wall and his party getting off or on the train. He then jumped off the train, and estimated that the point where he got off was 25 or 30 feet above the end of the depot platform. When he reached the end of the depot platform, he found Yarnell there, dead; having been decapitated, it would seem, by the cars. The body lay on its side, at the upper end of the platform, between the platform and the rail. The right foot was fastened under the platform, and the head of the deceased "was just apast the end" of the platform. There was blood on the rail where the corpse lay, but there were no indications that the body had been dragged. How far the "switch" is from the...