Schultze v. Missouri Pac. Ry. Co.

• Decision Date: 19 November 1888
• Parties: AUGUST SCHULTZE, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 438

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 of defendant, sounded the engine whistle as a signal that said station was near, and that shortly thereafter the train porter of said train, also an agent of defendant, made public announcement, in the coach wherein plaintiff was sitting, that said station was near, which fact plaintiff well knew, whereupon plaintiff made ready to alight from said train, which began slowing up, the air-brakes of said train being set, as plaintiff supposed, to stop said train, as usual, and as it was defendant's duty to do at the said depot of said station of Lee's Summit; that said train continued to slacken its pace as it approached the depot, until when it reached the depot it was on the point of stopping altogether which the plaintiff supposed it would do, whereupon plaintiff proceeded with all due prudence and care to get out of the car; that when he reached the car platform he found the train still moving slowly. And plaintiff says that instead of stopping said train at said station, as it was the duty of the defendant to do, defendant by its agents and employes carelessly and negligently passed beyond said depot, which, when plaintiff ascertained, he tried, with due prudence and care, to retrace his steps into the car, at which moment, while plaintiff was turning around to leave the car platform to reë nter said car, the defendant negligently, carelessly and recklessly put on a full head of steam, thereby suddenly jerking said train and car on which plaintiff was traveling with such force and speed as to throw plaintiff violently from the car platform, with great force against a fence and post on defendant's right of way, thereby breaking plaintiff's right arm above the elbow and cutting, wounding and bruising him upon the head and face in a shocking manner, and on account of which injuries plaintiff was obliged to have his said right arm amputated above the elbow, and on account of which injuries plaintiff was subjected to a great deal of suffering both in body and mind, and by which said injuries plaintiff was subjected to a large expenditure of money for doctors' bills and nursing, and is crippled for life," etc.

The answer of defendant was a general denial.

The plaintiff testified that he took passage on the train of defendant, and concerning the accident which occasioned his injuries his evidence was as follows: " When we got within a short distance of Lee's Summit the engine whistle blew for the station, and the porter of the car called out the station Lee's Summit. I could hear the steam under the car putting on the air-brakes; the train slacked its speed; I got ready to get out; I gathered up my things and picked up a small paper box I had with me and put it under my right arm. I was acquainted some at Lee's Summit and I waited a few minutes. There was a good deal of snow on the ground, and it was dark; I did not hear any noise and I thought the train was stopping. I went out on the platform of the car--the front platform. I was thinking that the train was stopping, but I looked up and saw no lights. I stepped down onto the second step of the platform of the car, and I was still in mind that the train was stopping, but I saw it was still in motion. I then turned around to go back into the car. I held myself firmly with my left hand to the car railing, but I was jerked off. I was standing on the second step at the time I turned around to go in, on the same side the depot that Lee's Summit was on. As I started to turn around to go back into the car, the train suddenly jerked ahead, as if steam was suddenly let on, or the car running over a switch, and it jerked me right off. It threw me up against the post of the cattle-guard at the crossing, about one hundred and fifty yards west of the depot at Lee's Summit. My right arm was all crushed-- the bone stuck out through my coat and overcoat. My head was also badly cut and my back hurt; they amputated my arm the next morning; the hospital doctors amputated it."

It appears from the evidence that no one saw plaintiff when he was thrown from the train or left it. One, L. T. Newcomb introduced by plaintiff, testified that he came out of the car immediately in front of the one in which plaintiff rode, that he saw plaintiff for a moment on the platform, but as he, Newcomb, was aiming to, and did alight from the train while it was running through the station, he...