32 Mo.App. 438 (Mo.App. 1888), Schultze v. Missouri Pac. Ry. Co.

Citation:32 Mo.App. 438
Opinion Judge:RAMSAY, J.
Party Name:AUGUST SCHULTZE, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
Attorney:Shirk & Portis and Thos. J. Portis, for the appellant. L. Hoffman and Byron Sherry, for the respondent.
Case Date:November 19, 1888
Court:Court of Appeals of Missouri

Page 438

32 Mo.App. 438 (Mo.App. 1888)

AUGUST SCHULTZE, Respondent,

v.

THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

November 19, 1888

Appeal from Pettis Circuit Court. --HON. RICHARD FIELD, Judge.

AFFIRMED.

The case is stated in the opinion.

Shirk & Portis and Thos. J. Portis, for the appellant.

(1) It was error to overrule defendant's demurrer to the plaintiff's evidence. Plaintiff's own statement showed him guilty of such contributory negligence as precluded a recovery. Notices as required by the statute were posted inside the car and on the door forbidding passengers to stand on the platform. R. S. 1879, sec. 800; Lindsey v. Railroad, 18 Am. and Eng. Ry. Cases, 179; 2 Rorer on Railways, 1103 and authorities cited; Railroad v. Hawk, 72 Ala. 112; Higgins v. Railroad, 2 Bosw. [N. Y.] 133; Railroad v. Hoosey, 6 Am. and Eng. Ry. Cases, 454, and note 460; Gerstle v. Railroad, 23 Mo.App. 361; Bou v. Railroad, 56 Iowa 669. (2) Plaintiff's first instruction should not have been given. It is the mere statement of a general legal proposition, having no connection with, or bearing upon the case, and is plainly misleading. Benson v. Railroad, 78 Mo. 504, 513; Henry v. Rice, 18 Mo.App. 497. (3) Plaintiff's second instruction is erroneous. It is uncertain, misleading and prejudicial to the defendant. It tells the jury in general terms that if, after plaintiff got out onto the platform of the car, " the defendant, through its agents and servants, so carelessly and negligently ran and managed its said train so as to throw plaintiff off of the platform," they should find for the plaintiff. ( a ) The issue made by the pleadings is whether there was a jerk or jar, which caused the accident. This instruction enlarges this issue to any negligent act, and is for that reason erroneous. Bank v. Murdock, 62 Mo. 70, 74; Storms v. White, 23 Mo.App. 31; Waldhier v. Railroad, 71 Mo. 514. ( b ) The general language used only requires the jury to come to a conclusion, without finding the facts on which to base it. The instruction should have required the jury to find that the car was negligently jerked or jarred and plaintiff thereby thrown off. ( c ) It also requires the jury to find upon a mixed question of law and fact, viz., that the plaintiff was thrown off the car by some act, not stated in the instruction, and that such act was negligent, without stating or defining what would constitute negligence with reference to such act. (4) The court erred in inserting in defendant's second instruction the words " without the fault or negligence of defendant." If the plaintiff being on the platform of the car directly contributed to his own injury, he cannot recover, although the defendant may have been guilty of fault or negligence also. And under Revised Statutes 1878, sec. 800, it was negligence, per se, for plaintiff to stand on the platform, whilst the train was in motion. All the cases so hold. (5) The verdict is so clearly against the evidence as to evince passion or prejudice on the part of the jury, or a failure to comprehend the instruction of the court, and should be set aside. Railroad v. Williams, 7 S.W. 88.

L. Hoffman and Byron Sherry, for the respondent.

(1) The court did not err in overruling defendant's demurrer to the evidence. Doss v. Railroad, 59 Mo. 27; Waller v. Railroad, 38 Mo. 608; Leslie v. Railroad, 88 Mo. 350; Taylor v. Railroad, 26 Mo.App. 336; Brown v. Railroad, 31 Mo.App. 675. (2) Contributory negligence, to be made available as a defense, should be pleaded. Northrup v. Ins. Co., 47 Mo. 444; Thompson v. Railroad, 51 Mo. 190; Harrison v. Railroad, 74 Mo. 369; 2 Thomp. on Neg. 1253; Donovan v. Railroad, 89 Mo. 147; Brown v. Railroad, 31 Mo.App. 675; McGee v. Railroad, 92 Mo. 218; Beach on Con. Neg. 173. (3) The presumption of law is, that the plaintiff was in the exercise of due care. Buesching v. Gas Co., 73 Mo. 233; Flynn v. Railroad, 78 Mo. 212; O'Connor v. Railroad, 94 Mo. 150. (4) The court cannot decide, under the facts and circumstances of this case, that the plaintiff was guilty of contributory negligence. Doss v. Railroad, 59 Mo. 27; Straus v. Railroad, 75 Mo. 185; Straus v. Railroad, 86 Mo. 422; Waller v. Railroad, 83 Mo. 608; Leslie v. Railroad, 88 Mo. 50; Taylor v. Railroad, 26 Mo.App. 336; Gerstle v. Railroad, 23 Mo.App. 361; Burns v. Railroad, 50 Mo. 139; Maguire v. Railroad, 115 Mass. 239. (5) As to instructions on the part of plaintiff. The first instruction is sustained by case of Leslie v. Railroad, 88 Mo. 50, and the second is in conformity to the facts and circumstances of the case. Brown v. Railroad, 31 Mo.App. 675.

RAMSAY, J.

This is a suit for personal injuries. The trial below resulted in a judgment for plaintiff, from which the defendant has appealed to this court.

The petition, after alleging that plaintiff, on the twenty-fifth day of December, 1884, took passage on one of defendant's trains from Sedalia to Lee's Summit in Missouri, that Lee's Summit was then an established station on defendant's railroad line, where defendant had a depot and platform for the proper reception and discharge of passengers from its train, with other statements, which we deem unnecessary to mention, further alleged: " That when defendant's said train on the said date had reached a point on its said road, within about one-fourth of a mile from said station and depot, the engineer on said train, an agent...

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