McDonald v. Kansas City & I. Rapid-Transit Ry. Co.

• Citation: 29 S.W. 848,127 Mo. 38
• Parties: McDONALD v. KANSAS CITY & I. RAPID-TRANSIT RY. CO.
• Decision Date: 26 February 1895
• Court: United States State Supreme Court of Missouri

29 S.W. 848

127 Mo. 38

McDONALD v. KANSAS CITY & I. RAPID-TRANSIT RY. CO.

Supreme Court of Missouri.

February 26, 1895.

CARRIERS — INJURY TO PASSENGER — QUESTION FOR JURY.

1. Plaintiff's decedent, in alighting at night from a car on a dummy line, with the operation of whose trains he was familiar, was struck by a train on the opposite track, and killed. The train on which he rode had just passed his station, but was coming to a stop when he got off. The conductor, however, lighted him off at the steps. Held, that the question of defendant's negligence was for the jury. Barclay, Sherwood, and Robinson, JJ., dissenting.

2. In such case, plaintiff was not, as a matter of law, guilty of contributory negligence, though, if he had looked, he might have seen the approaching train. Barclay, Sherwood, and Robinson, JJ., dissenting.

In banc. Appeal from circuit court, Jackson county.

Action by Bridget McDonald against the Kansas City & Independence Rapid-Transit Railway Company. Judgment for defendant, and plaintiff appeals. Reversed.

The following is the opinion of the court in division (BLACK, C. J.):

"The plaintiff brought this suit to recover $5,000, damages for the death of her husband. The trial court sustained a demurrer to the plaintiff's evidence, and this ruling presents the only question before us. In other words, the question is whether plaintiff made out a case for the jury. The defendant owns and operates a railroad from Kansas City to Independence, a distance of about eight or ten miles. The cars are propelled by steam power, and the road is called the `Dummy Line.' There are two tracks, the south one being used by trains going from Kansas City to Independence, and the north one by trains going west. McDonald, the deceased, resided at a station on the road called `Evanston.' He had resided at that place for five years next before the accident, and was familiar with the movement of the trains on the road. According to the testimony of the plaintiff, he went west to a station on the road called `Sheffield' on the day of the accident. The other evidence shows that he was on a train, returning home, about 8 o'clock in the afternoon of the same day. Just before reaching Evanston, he was sitting at the front end of the rear car, engaged in conversation with the conductor. One witness says he heard them say something about grading. It appears the deceased had been engaged in that business; and from this it does not appear what they were talking about. The train did not stop at the Evanston station, but passed by from 100 feet to 200 yards, as variously estimated, before it stopped. As the train checked its speed and was coming to a halt, the conductor and the deceased stepped out on the platform of the rear car. It seems the deceased got off the platform on the north side, while his train was yet in motion, and was immediately struck and killed by a train going in the other direction, on and over the north track. It does not appear whether there was or was not a platform at this station, nor does it appear on what side passengers going east usually alighted. The witness Golden, who was in the rear car, says the train slowed up, and the conductor and McDonald went out on the platform. He then looked out of the window, and saw the flash of the headlight on the other train. The conductor came in, and said McDonald was killed. Gick, another passenger on the same car, says he saw the conductor and McDonald talking at the front end of the car; that, when the train slowed up, they went out at the front end; that the conductor had a lantern in his hand; and that the conductor stepped back, and reported the death of McDonald. This witness says the train was moving. He says McDonald went out first, but he does not know what occurred on the platform. Greenville Crisp, a passenger on the same train, says he saw McDonald and the conductor on the platform, and that the conductor was then lighting McDonald off. Being asked what the conductor did, he answered: `He kind of leaned over, and held his lantern out that way [indicating], and I saw him and McDonald go down, and I turned around and heard the explosion.' This witness thinks the train was yet in motion. On cross-examination he said he saw McDonald go out on the platform and get off on the step, and that he saw the conductor holding a lantern to light McDonald down the steps, but he did not see McDonald get off on the ground. The conductor was not called as a witness. While the plaintiff's evidence leaves many things open to further explanation, we think she made out a prima facie case. As said in Lambert v. Railroad Co., 66 N. C. 498: `He [the deceased] had a right to expect that the defendant had employed a skillful and prudent conductor, who would not expose passengers to dangerous risks, and who had experience and knowledge in his business, sufficient to correctly advise and direct passengers as to the proper time and manner of alighting safely from the train.' In that case there was evidence tending to show that the conductor said to the passenger, while the train was passing a platform, `Now is your time; jump.' See, also, Bucher v. Railroad Co., 98 N. Y. 128. The deceased was, beyond doubt, a passenger on defendant's train, and the defendant owed him that high degree of care due from carriers to their passengers. It does not appear that the conductor in words advised the deceased to get off at the particular time and place, nor does it appear what, if anything, the conductor said to the deceased when they were both on the platform. But the evidence does tend to show that the conductor went out on the platform with the deceased, and so held his lantern as to aid and assist deceased in getting down the steps leading to the north track, and this, too, while the train was still in motion. A jury might well find that such acts on the part of the conductor, unexplained as they are, amounted to and were a direction to get off then and there, and on that side of the train. It does not appear that the conductor knew of the train then approaching from the other direction, but the fact that he did not know of the close proximity of that train cannot defeat the plaintiff's action; for it was the duty of the defendant to operate its trains so as to allow passengers to alight with safety. It is certainly negligence on the part of a railroad company for its servants in charge of a train to induce a passenger to get off at a dangerous place, and may well be inferred from the evidence that the deceased got off at the particular time and place by the advice and direction of the conductor. We cannot escape the conclusion that there is evidence of negligence on the part of the defendant.

"The question of contributory negligence was also one for the jury to determine under the circumstances disclosed. The case is unlike that of Weber v. Railroad Co., 100 Mo. 198, 12 S. W. 804, and 13 S. W. 587. There the injured person jumped from the car while it was going at full speed, in front of an approaching train, and that, too, of his own volition. Though the train now in question was moving when deceased left it, still it was moving slowly, and it cannot be said, as a matter of law, that he was guilty of negligence because the train was still in motion. If the deceased saw the approaching train, or knew it was in close proximity, then the plaintiff should not recover; but there is no evidence that he saw it or knew it was approaching. Had he looked forward before leaving the car step, he would have seen it; but we cannot say he was negligent, as a matter of law, because he did not look. It must be remembered that the train had passed the station; and, as the case now stands, it may be inferred that, in getting off as he did, he acted on the advice and under the direction of the conductor, on whose advice he had a right to rely, unless the danger was a known, open, and obvious one. Our conclusion is that the case was one for the jury on both branches. In reaching this conclusion, we speak of the case as made by the evidence before us. Should a different state of facts appear on a new trial, the question whether a demurrer to the evidence should be sustained must be determined from the facts as they shall appear."

Jas. M. Callahan and C. F. Moulton, for appellant. Karnes, Holmes & Krauthoff, for respondent.

PER CURIAM.

The foregoing opinion, prepared by BLACK, C. J., in division No. 1, is adopted as the opinion of the court in banc. In accordance therewith, the judgment of the circuit court is reversed, and the cause remanded.

BRACE, C. J., and GANTT, MACFARLANE, and BURGESS, JJ., concur.

BARCLAY, J. (dissenting).

The judgment proposed in the opinion prepared by my learned brother, Chief Justice BLACK (approved now by a majority of the court in banc), seems, with due respect, not in harmony with certain principles which, it appears to me, should govern the case. So my concurrence is not given to it. His statement of the facts in judgment exhibits the chief outlines of the scene in which Mr. McDonald, the husband of plaintiff, unfortunately met his death. But yet some other points in the testimony appear to me worthy of attention. In order to bring them out clearly, and to show their bearing on the result of the controversy, it may be well to repeat the substance of the case.

Plaintiff's relationship to Mr. McDonald was shown. They resided at Evanston Park, and had lived there about five years before his death. Their residence was about a block east of Evanston station, and a block from the defendant's railway track. From their house a full view of the trains was to be had. Mr. McDonald frequently rode upon them. He was 43 years of age at the time he died. He had often been engaged in railroad work, as a contractor. He had taken part in the original construction of the roadbed of the line at the place where he was killed. He was familiar with the road, and the movement of...