Taylor v. Missouri Pac. Ry. Co.

Citation26 Mo.App. 336
PartiesBENJAMIN B. TAYLOR, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
Decision Date23 May 1887
CourtCourt of Appeals of Kansas

APPEAL from Pettis Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

Motion for re-hearing overruled.

The case is stated in the opinion.

THOMAS G. PORTIS and WILLIAM S. SHIRK, for the appellant.

I. Defendant's objection to the introduction of any evidence, because the petition fails to state a cause of action, and shows, upon its face, such contributory negligence as precludes a recovery, should have been sustained. Doss v. Railroad, 59 Mo. 37; Nelson v. Railroad, 68 Mo. 593; Kelley v Railroad, 70 Mo. 604; Price v. Railroad, 72 Mo 418; Strauss v. Railroad, 75 Mo. 185; Henry v. Railroad, 76 Mo. 293; Leslie v. Railroad, 88 Mo. 56; Railroad v. Aspell, 23 Pa.St. 147; Railroad v. Bangs, 47 Mich. 470; Shannon v. Railroad, 23 Am. & Eng. R. R. Cases, 511; Railroad v. Letcher, 12 Am. & Eng. R. R. Cases, 115; Morrison v. Railroad, 56 N.Y. 302; Burrows v. Railroad, 63 N.Y. 556; 2 Rorer on Railroads, p. 1091, sect. 5; 2 Wood's Railway Law, sect. 305, p. 1148.

II. Defendant's instruction, in the nature of a demurrer to the evidence, should have been given. Same authorities cited under first point.

III. The instructions given to the jury at the request of the plaintiff are improper and misleading.

IV. The verdict is grossly excessive.

G. W. BARNETT and W. W. S. SNODDY, for the respondent.

I. The petition does not show such contributory negligence as precludes recovery, for it is for the jury to determine whether stepping off the train, while in motion, was, under the circumstances, such negligence as would preclude a recovery; hence, the court did not err in overruling defendant's objection to the introduction of any evidence by the plaintiff. Leslie v. Railroad, 88 Mo. 56; Doss v. Railroad, 59 Mo. 27; Kelly v. Railroad, 70 Mo. 604; Wyatte v. Railroad, 55 Mo. 485; Railroad v. Pointer, 14 Kas. 37; McQuilton v. Railroad, 2 Pacific Rep.; Railroad v. Rollins, 5 Kan. 167; Sawyer v. Rollins, 10 Kan. 466; Railroad v. Gladman, 15 Wall. [U. S.] 401; Delameter v. Railroad, 24 Wis. 578; Harvey v. Railroad, 116 Mass. 269; Story on Bailments, sects. 11 and 12; Bigelow v. Rutland, 4 Cush. 247; Bradley v. Railroad, 2 Cush. 539; Munro v. Leach, 7 Met. 274; Hall v. Lowell, 10 Cush. 260; Providence v. Clapp, 17 How. 161; Patterson v. Wallace, 1 Macy 748; Aldridge v. Railroad, 4 Scott 164; Coombs v. Purrington, 42 Me. 332; Foster v. Dickfield, 18 Me. 380; Carlton v. Bath, 2 Foster 559; Leicester v. Pittsfield, 6 Vt. 245; Beers v. Railroad, 19 Conn. 566; Park v. O'Brien, 23 Conn. 339; Curtiss v. Railroad, 20 Barb. 282; Dougherty v. Stephenson, 20 Pa.St. 210; Chaplin v. Hawes, 3 Car. & P. 554; Ingalls v. Bills, 9 Met. 1; Slapes v. Saltonstall, 13 Pet. 181; Robinson v. Dane, 22 Vt. 213; Birge v. Gardner, 19 Conn. 507; Stafford v. Railroad, 4 West. Rep. 790; Solomon, Admr'x, v. Railroad, 4 Cent. Rep. 775.

II. Defendant's instruction, in the nature of a demurrer to the evidence, was properly refused. Same authorities cited under first point.

III. The instructions given to the jury properly declare the law applicable to this case. See same authorities first cited.

IV. The verdict is not excessive, and does not show any partiality, prejudice or corruption.

V. The defence of contributory negligence must be pleaded in the answer, and is not available in this case, as the answer is a general denial. Donovan v. Railroad, 89 Mo. 147; Thorpe v. Railroad, 89 Mo. 650; Petty v. Railroad, 88 Mo. 396.

ELLISON J.

This is an action for personal injury. Plaintiff recovered judgment for two thousand dollars, and defendant appeals.

Defendant offered no evidence at the trial, and but one instruction, which was in the nature of a demurrer to the testimony. The material portion of the petition was as follows:

" That, on the morning of May 2, 1883, the plaintiff purchased a ticket from defendant's ticket agent at the town of LaMonte, in said county (Pettis), authorizing him, the said plaintiff, to ride upon defendant's cars from LaMonte to Sedalia, in said county, and return to said town of LaMonte, and that plaintiff went to Sedalia and returned to LaMonte on defendant's cars on said day, but, on returning to said town of LaMonte, the defendant's train of cars, on which plaintiff was riding by authority of the ticket which he had purchased, failed to stop at LaMonte, although plaintiff requested the conductor in charge of said train to stop said train at said station, and let said plaintiff off; and plaintiff says that he was on a train that regularly stopped at said station, and it was the duty of the employes of defendant in charge of said train to have stopped said train at said station and let plaintiff off said train. Plaintiff says, that, at that time, his wife was dangerously sick at LaMonte, and he was compelled to get off at that station to attend to her, and while said train failed to stop at the depot at LaMonte, as it was accustomed to do, and as plaintiff supposed it would do, yet said train, on approaching said depot at said station, slackened its speed and passed said depot and station slowly, so that plaintiff had reason to believe, and did believe, that he could get off said train, while thus slowly moving, with safety to himself; and, upon being informed by said conductor in charge of the train that said train would not stop at said depot, the plaintiff attempted to get off and alight from said train while the same was thus slowly moving past said depot, the plaintiff then and there using due caution and care in attempting to get off said train, and, by reason of said train thus moving, plaintiff was thrown violently on his left shoulder and arm, breaking the bones of his said shoulder and injuring his left arm; that said injuries were of a serious and permanent nature, permanently disabling plaintiff's left arm and shoulder."

Defendant's answer was a general denial.

Defendant objected to any evidence under the petition, the grounds of objection being that it stated no cause of action; showing upon its face that the injury happened by reason of the contributory negligence of plaintiff. This objection was overruled. What acts or conduct amount to contributory negligence is necessarily governed by the circumstances of the particular case. The recklessness or heedlessness should be very apparent to justify a declaration by the court, as a matter of law, that certain conduct on the part of the complainant amounted to contributory negligence. Where it is questionable, it is the province of the jury to say, whether, under the circumstances of the particular case, the conduct amounts to contributory negligence. " For one to jump from a train of steam cars while in rapid motion, voluntarily, and not to avoid some threatened danger, is negligence, but to step from a car while in motion to a station platform, may or may not be negligence. Whether it is or not is a question of fact for the jurors to determine from all the circumstances. Doss v. Railroad, 59 Mo. 27; Kelly v. Railroad, 70 Mo. 607. It would be better, in such cases, to submit the question by leaving it to the jurors to determine whether a prudent person, in a like situation, and under like circumstances, would have made the step or leap." Leslie v. Railroad, 88 Mo. 50. In Doss v. Railroad (59 Mo. 27), it is said that acts, such as shown in the petition, " are risks which the most prudent men will take."

It follows that, as the petition presents a case for the jury, the court was correct in its ruling on the objection presented.

II. It is next urged that defendant's demurrer to the evidence should have been sustained, on the ground that the testimony showed the injury to have happened by reason of plaintiff's contributory negligence.

It would, as a general rule, be sufficient answer to this to say that no such defence was interposed by defendant. The alleged contribution to the accident should have been set up in the answer. Northrup v. Ins. Co., 47 Mo. 435, 444; Thompson v. Railroad, 51 Mo. 190; Donovan v. Railroad, 89 Mo. 147. In the latter case no evidence was offered by defendant, but an instruction, which amounted to a demurrer, was asked; of this the court say: " The defendant aswered alone by general denial. Contributory negligence is a matter of defence, and must be pleaded to be available as a defence. No such issue of fact was presented in this case, and, for these reasons, the instruction was properly refused." This is the latest ruling of the supreme court on this question. That case, in connection with that of Milburn v. Railroad (86 Mo. 104), appear to establish a distinction as to contributory negligence in the matter of pleading. In the latter case it is held that, though contributory negligence is not pleaded, yet, if plaintiff's own proof " clearly establishes that the injury he complained of was as much the result of his own negligence as that of the party of whose negligence he complains," he cannot recover. In the case before us we do not consider that the evidence, on part of plaintiff, showed negligence in him sufficient to justify the court in declaring, as a matter of law, he could not recover. The question was properly submitted to the consideration of the jury.

We do not regard the damages assessed as excessive, under the rules governing appellate courts, in considering such questions.

The judgment...

To continue reading

Request your trial
14 cases
  • Chamberlain v. Missouri-Arkansas Coach Lines
    • United States
    • Missouri Supreme Court
    • 1 Junio 1943
    ... ... 1012; 2 Blashfield Cyc., Automobile Law & Practice (Perm ... Ed.), pp. 322, 323; Morgan v. Mining Co., 199 ... Mo.App. 26; Taylor v. Mo. Pac. Ry. Co., 26 Mo.App ... 336; Pattison's Missouri Code Pleading (2d Ed.), secs ... 229, 300, 310. (3) Instruction 3 is a proper ... ...
  • O'Connor v. Missouri Pacific Railway Co.
    • United States
    • Missouri Supreme Court
    • 20 Febrero 1888
    ... ... carelessness in failing to look and listen for an approaching ... train shows such contributory negligence as precludes a ... recovery. Taylor v. Railroad, 86 Mo. 457; Mayher ... v. Railroad, 64 Mo. 267; Harlan v. Railroad, 64 ... Mo. 480; S. C. 65 Mo. 22; Evans v. Railroad, 62 Mo ... ...
  • State ex rel. Savings Trust Company v. Hallen
    • United States
    • Missouri Court of Appeals
    • 7 Mayo 1912
    ...Co., 89 Mo. 650, 2 S.W. 3; Petty v. Hannibal & St. J. Ry. Co., 88 Mo. 306; Crane v. Missouri Pacific Ry. Co., 87 Mo. 588; Taylor v. Mo. Pac. Ry. Co., 26 Mo.App. 336; St. Clair v. Mo. Pac. Ry. Co., 29 Mo.App. 76.] " In the case at bar the evidence of contributory negligence on the part of pl......
  • Fulks v. The St. Louis & San Francisco Railway Company
    • United States
    • Missouri Supreme Court
    • 2 Julio 1892
    ...negligence per se to attempt to get on a slowly moving train. 75 Mo. 475; 59 Mo. 27-37; 12 A. 821; 6 P. 587; 46 Tex. 356; 27 Wis. 158; 26 Mo.App. 336; 29 Mo. 495; 13 A. 387; Ga. 746; 61 Md. 53; 55 Mo. 485; 53 Mo. 509; 72 Mo. 414. (6) If the plaintiff was guilty of negligence in attempting t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT