Gerstle v. Union Pacific Ry. Co.

• Decision Date: 22 November 1886
• Citation: 23 Mo.App. 361
• Parties: ALBERT GERSTLE, Respondent, v. THE UNION PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

23 Mo.App. 361

ALBERT GERSTLE, Respondent,

v.THE UNION PACIFIC RAILWAY COMPANY, Appellant.

Kansas City Court of Appeals, Missouri.

Nov. 22, 1886.

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

The case and facts are stated in the opinion.

JOHN W. BEEBE, for the appellant.

The court erred in giving instructions for plaintiff against defendant's objection, and in refusing instructions offered by defendant.

GAGE, LADD & SMALL, for the respondent.

I. The instructions asked for by defendant and refused by the court, all, in effect, declared as matter of law, that plaintiff was guilty of contributory negligence in being on the platform when the train was in motion. Those given by the court left it to the jury to determine whether he was, under the circumstances, guilty of negligence. The court was clearly right in submitting the question of negligence to the jury in this case. Doss v. Railroad, 59 Mo. 27; Kelley v. Railroad, 70 Mo. 607; Chetworthy v. Railroad, 80 Mo. 223; Goodrich v. Railroad, 29 Hun [N. Y.] 50; Maguire v. Railroad, 115 Mass. 239; Burns v. Railroad, 50 Mo. 139.

II. If plaintiff was guilty of negligence in being on the platform at the time he was injured, that negligence was not, in any legal sense, a cause of the injury. If he was negligently there, such negligence may be said to have contributed directly to any injury he might have received from any defect in the platform, or from the motion of the train, but surely not to an injury such as he sustained, the cause of which, namely, the negligent act of the conductor, was wholly independent of and disconnected from any act of the plaintiff. Wharton on Neg. [2 Ed.] sects. 302-324.

ELLISON, J.

The evidence in this case shows that the respondent received the injuries for which the suit is brought, under the following circumstances: He was a traveling man, and a passenger on defendant's train from Hays City, Kansas, westward. This train stopped at Ellis for supper. Before its arrival at Hays, some tramps were discovered stealing their passage on the train. After his supper at Ellis, being just after dark in the evening, the respondent seated himself in the smoking car, which was next to the baggage car, and the train started. The train men immediately discovered the same tramps on the first platform of the baggage car, and before it had gone fifty yards, stopped the train and put them off. The tramps ran forward, crossed a bridge, and as the train crossed, again jumped on the same platform. The train was again stopped, and they were again put off. This was repeated several times; during this time the conductor had fired a pistol one or more times to scare them away. At some time after the first stoppage the respondent rose from his seat, went forward to the platform, and standing on the rear platform of the baggage car, looked forward to see what was going on. Finally the train again started, the conductor and train men being still on the ground beside the cars, and the respondent started to return to his seat in the smoking car. As he was passing from the platform of the baggage car to that of the smoking car, the conductor, holding his lantern in one hand and his pistol in the other, caught hold of the railings and swung himself upon the steps, his pistol was exploded as his hand holding the pistol struck the rail, the ball entering the mouth of respondent, seriously injuring him.

At the close of plaintiff's case, defendant offered a demurrer to the...