225 S.W. 660 (Mo. 1920), May v. Chicago, Burlington & Quincy Railroad Company

Citation:225 S.W. 660, 284 Mo. 508
Opinion Judge:GOODE, J.
Party Name:ELEANOR MAY v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY and BENJAMIN E. HAWKINS, Appellant
Attorney:H. J. Nelson, M. G. Roberts and E. M. Spencer for appellants. Duvall & Boyd for respondent.
Judge Panel:GOODE, J. Woodson, J., not sitting.
Case Date:November 20, 1920
Court:Supreme Court of Missouri
 
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Page 660

225 S.W. 660 (Mo. 1920)

284 Mo. 508

ELEANOR MAY

v.

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY and BENJAMIN E. HAWKINS, Appellant

Supreme Court of Missouri

November 20, 1920

          Appeal from Buchanan Circuit Court. -- Hon. Thomas B. Allen, Judge.

          Reversed and remanded.

         H. J. Nelson, M. G. Roberts and E. M. Spencer for appellants.

         (1) Plaintiff's instruction in which the court charged the jury that it was the defendants' duty to exercise the highest degree of care to ascertain whether the plantiff was boarding the train regardless of whether she did so before or after the lapse of a reasonable time, was erroneous. It applied the "street car" rule to steam railroads. The error was especially manifest and extremely prejudicial when it is considered that the other alleged act of negligence pleaded, to-wit, defendants' failure to stop a reasonable time at Forest City, was not submitted to the jury in plaintiff's instructions, but was in fact withdrawn from their consideration by the trial court. After the lapse of a reasonable time for passengers to get on or off, there is no duty to exercise the highest degree of care to ascertain whether persons are attempting to board the train. Paul v. Met. St. Ry. Co., 179 S.W. (Mo. App.) 787; Clotworthy v. Railroad, 80 Mo. 220; Quinn v. Met. St. Ry. Co., 218 Mo. 554; Hurt v. Railroad, 94 Mo. 255; Straus v. Ry. Co., 75 Mo. 190. (2) Under the law as declared in the foregoing decisions of this court, defendants' refused Instruction No. E, to the effect that if the train was stopped at Forest City a reasonable length of time sufficient to allow passengers to get on and off in safety, then there was no duty upon the defendants to warn the plaintiff that the train was about to proceed unless the defendants or the employees in charge of the train actually saw the plaintiff in the act of preparing or attempting to get on the train before giving the signal to the engineer to proceed, should have been given. See authorities supra. (3) The court erred in refusing to admit in evidence as a part of the res gestae the statement of plaintiff's husband when he entered Speer & Thornhill's store in the Sentney Building, 380 feet from the depot, that he was in a hurry and that his train was already at the station. The statement of a husband, even though he is otherwise incompetent to testify, or a witness, or a third party, if illustrative of the main act or connected with the principal fact, is admissible in evidence. Redmon v. Met. St. Ry. Co., 185 Mo. 11; Strother v. McFarland, 194 S.W. 882; Crowther v. Gibson, 19 Mo. 365; Kleiber v. Peoples Ry. Co., 107 Mo. 240; 24 Am. & Eng. Ency. Law (2 Ed.), p. 66. (4) The instruction on the measure of damages, in which the court invited and encouraged the jury to take all the facts and circumstances in evidence into consideration on the issue of the amount of damages which they would award the plaintiff, was, under the circumstances of this case, erroneous. The fact that a plaintiff in a personal injury suit has a family of children cannot be considered in determining his or her damages, and this court has held that it is error to permit such evidence to be introduced if duly objected to. But in this case, even if the jurors were assumed to have been so blind as not to be aware of the presence and existence of plaintiff's children while they roamed about the court room, yet the very narrative of the accident and plaintiff's alleged inability to work thereafter necessarily disclosed that she had children. (5) The instruction in the nature of a demurrer to the evidence, asked by defendant Benjamin Hawkins at the close of plaintiff's case and again at the close of all the evidence, should have been given. It is alleged and appears, without contradiction, in evidence that Hawkins was only an employee of his co-defendant, the railroad company. The plaintiff's petition charged him not with misfeasance, but with non-feasance. Under such circumstances, he is not liable in any event to third parties. McGinnis v. Ry. Co., 200 Mo. 347. (6) Plaintiff's instruction was erroneous as to defendant Benjamin Hawkins for this further reason: Hawkins was not a common carrier. Such relationship did not exist between him and the plaintiff. There was no duty, therefore, upon him, under the law, to exercise the highest degree of care so far as he, individually, was concerned. Yet the court instructed the jury that if he failed to exercise the highest degree of care, they must find a verdict against Hawkins. If Hawkins was liable at all to the plaintiff, which appellants deny, his duty was merely to exercise ordinary care.

         Duvall & Boyd for respondent.

         (1) There was no error in giving plaintiff's Instruction No. 2. (a) Plaintiff was, at the time she undertook to board the train in question, a passenger, to whom the defendants owed the duty to exercise the highest degree of care that a very prudent person would exercise under the same or similar circumstances. Benjamin v. Met. St. Ry. Co., 245 Mo. 598; Furnish v. Mo. Pac. Ry. Co., 102 Mo. 438; Iba v. Railroad Co., 186 Mo.App. 718; Lindsay v. Ry. Co., 178 S.W. 276; Barth v. Elec, Ry. Co., 142 Mo. 535; Tibby v. Mo. Pac. Ry. Co., 82 Mo. 292; Albin v. Ry. Co., 103 Mo. App., 308. (b) The stopping by defendant of the train in question at the depot platform at Forest City was an invitation to plaintiff to board the same, she being in possession of a ticket entitling her to passage thereon, and that invitation continued so long as the train remained standing. Iba v. Railroad, 186 Mo.App. 718; Fields v. Met. St. Ry. Co., 169 Mo.App. 624. (c) Plaintiff's instruction in fact required the jury to find that defendants did not stop said train a reasonable length of time at Forest City. (d) The trial court committed error against the plaintiff when it gave to the jury defendants' Instruction No. 7, because plaintiff's evidence showed she acted with all due diligence. (e) The mere fact, if it was a fact, that plaintiff was the last person to get upon the steps of the coach, did not render plaintiff a dilatory passenger, nor justify the court in giving defendant's Instruction No. 7. Fields v. Met. St. Ry. Co., 169 Mo.App. 624. (f) Plaintiff had been invited to become a passenger on the train in question, had responded to the invitation, had placed herself on the steps of the coach before the invitation was closed, and defendants were bound to treat her as a passenger, and to exercise towards her the highest degree of care. Fields v. Met. St. Ry. Co., 169 Mo.App. 624. (g) Appellants cannot complain of the error of the court in giving their Instruction No. 7, because they requested it. (2) Defendant's Instruction E was properly refused. It told the jury, in effect, that there was no duty on those in charge of the train to look to see whether or not there was anyone getting on the train at the time of giving the signal to the engineer to proceed from the station. That cannot be the law. Thomure v. Ry Co., 191 Mo.App. 640. (3) There was no error in excluding the alleged statement of plaintiff's husband which it was claimed he made in a store on the afternoon of the injury to plaintiff. Such alleged statement was not admissible as res gestae. Bonslett v. New York Life Ins. Co., 190 S.W. 870; Freeman v. Loyal Prot. Ins. Co., 195 S.W. 545; Hooper v. Standard Life Ins. Co., 166 Mo.App. 209; Ruschenberg v. So. Elec. Ry. Co., 161 Mo. 70; Barker v. Ry. Co., 126 Mo. 152; Redmon v. Met. St. Ry., 185 Mo. 1; Ranney v. Lewis, 182 Mo.App. 58; Winster v. Holmes, 177 Mo.App. 130; Whitney v. Sioux City, 154 N.W. 497; Donnelly v. Harris, 291 Mass. 466. The alleged statement of plaintiff's husband even if relevant, was objectionable as hearsay and was not rendered competent by any rule of evidence. 16 Cyc. 1195-1196. (3) There was no error in giving plaintiff's Instruction No. 3 on the measure of damages. Salmon v. Ry. Co., 197 S.W. 35; Sidekum v. Wabash Ry. Co., 93 Mo. 400; Kelly v. Stewart, 93 Mo.App. 47; McNamara v. Transit Co., 106 Mo.App. 349; Phelps v. Zinc & Lead Co., 218 Mo. 572; Harmon v. Donshoe, 153 Mo. 263; Chicago St. Ry. Co. v. Dougherty, 110 Ill.App. 204; Chicago City Ry. Co. v. Gemmill, 209 Ill. 638. (4) Under the evidence in this case the court could not have sustained a demurrer as to defendant Hawkins without doing violence to the established law of this State. The company was acting through him. His act was its act. It could act only through its servants and Hawkins was its servant, charged with the operation of the train. (5) The position taken by appellants in their last point is almost ludicrous. The company was acting through Hawkins as its conductor in charge of the train. There was a duty on him, under the law, to exercise towards plaintiff the highest degree of care. Otherwise a corporation carrier of passengers could never exercise towards its passengers the highest degree of care imposed by law, nor, indeed, could it exercise any care, or do any act, for they can act only through their servants and employees.

         GOODE, J. Woodson, J., not sitting.

          OPINION

Page 661

         [284 Mo. 515] In Banc

         GOODE, J.

         This plaintiff obtained a verdict against defendants for twenty-five thousand dollars for a personal injury, alleged to have been caused by the [284 Mo. 516] negligence of defendants in starting the train plaintiff wished to take as she was in the act of getting on it. The defendant corporation was operating the train at the time of the accident and defendant Hawkins was the conductor of it. Nine thousand dollars was remitted from the amount of the verdict, following an announcement by the court that unless plaintiff would remit that sum and thereby reduce the judgment to sixteen thousand dollars, the defendants' motion for a new trial...

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