Doss v. Missouri, Kansas & Texas R.R. Co.

• Decision Date: 31 January 1875
• Court: Missouri Supreme Court
• Parties: S. P. DOSS, Respondent, v. MISSOURI, KANSAS & TEXAS R. R. CO., Appellant.

59 Mo. 27

S. P. DOSS, Respondent,

v.MISSOURI, KANSAS & TEXAS R. R. CO., Appellant.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Vernon Circuit Court.

Philips & Vest, for Appellant.

I. Respondent was not a passenger, nor is it averred that he entered the appellant's cars under any contract with or by permission of appellant, nor that it was necessary for him to have gone on the train. Hence the petition is bad. (Lucas Adm'r vs. Taunton & N. R. R. Co., 6 Gray, 64, 66.)

II. Appellant was under no obligation to give him signals of starting. Neither the custom of the railroads nor the courts have ever given these signals any such office. (Lucas, Adm'r vs. T. & N. R. R. Co., 6 Gray 67.)

III. Respondent's own negligence contributed to his alleged injury, as he attempted to leave the train while in motion, and as proof of the velocity of its motion it is shown that he was flung by its force on the platform. It needs no citation of authorities to show that in such cases, toward a person not a passenger, the carrier was under no obligation to exercise any extraordinary care, but the least incautiousness on his part was most culpable. (18 Barb. S. C., 368; 18 N. Y., 422, 425-6.)

IV. This was no case for punitory damages. If the injury to the person be committed unintentionally, and result simply from a want of care, as in this case, the damages awarded should be compensatory. Exemplary damages in such actions can only be given where the act complained of was willful and intentional. (Goetz vs. Ambs, 27 Mo., 28, 33; McKeon vs. Citizens' R. R. Co., 42 Mo., 80; Franz vs. Hilterbrand, 45 Mo., 121; 2 Greenl. Ev., 250, S. 253, title Damages.)

Waldo P. Johnson, for Respondent.

I. A lady with an infant child, and especially in the night-time has the right to be conducted on the cars, even by a person who is not a passenger. And the company is responsible for injuries done him in the premises through the negligence of its agents. (Farwell vs. Boston & N. R. R. Co., 4 Met., 55 56; S. P. Phil. & Reading R. R. Co. vs. Derby, 14 How., 468; 45 Mo., 255; 46 Mo., 353.)

II. The questions of fact whether plaintiff was on the cars under such conditions as gave him a right to be there, and whether plaintiff was injured by the gross negligence of defendant's servants, and whether plaintiff was guilty of contributory negligence, were all fairly left to the jury and there is no legal ground for disturbing their verdict. (50 Mo., 461; 37 Mo., 240; 26 Mo., 441; 45 Mo., 255; 46 Mo., 353.)

NAPTON, Judge, delivered the opinion of the court.

This action was to recover damages for an injury sustained by plaintiff in stepping down from one of defendant's cars to the platform connected with the station house.

The petition states that defendant, as a common carrier, was bound to provide suitable means of ingress and egress in and from their cars, and suitable platforms, from which passengers could pass into said cars, so that passengers could pass with safety into the cars, and more especially into the car provided for female passengers; and that it was their duty to stop said car, so set apart for female passengers, at such platform so that female passengers could pass into and out of said car with safety.

The petition then alleges that on the 10th of May, 1872, the plaintiff was attending his sister-in-law, with her infant child, to the depot at Nevada, with a view to place them in the ladies' car; that the train stopped in the night-time, and the employees of defendant grossly neglected to stop the ladies' car of said train, at said platform, as they were in duty bound to do, but allowed said car to be stopped at a place distant from said platform. And in consequence of said negligence it became necessary for the lady and her child, who were under plaintiff's charge, to pass through a number of other cars of said train, which were dark and unlighted, so that by the time the plaintiff, with the lady and child, reached the door of the ladies' car, the train started, without giving any signal, and persons on the train desiring to leave could not do so with safety.

It is averred that any female passenger has a right to be conducted into the car, where she is to be conveyed, and therefore plaintiff, having been requested in this instance by the female passenger to escort her, had a right to be in said car at the time aforesaid, and a right to be duly notified by signal or otherwise of the time of starting said train, so that he could pass therefrom with safety.

Nevertheless, it is further averred, the agents of defendant, with gross negligence started the train without giving any such signal or other notice, and the plaintiff without any negligence on his part, in attempting at the time the train started, to pass from it to the platform, was, in consequence of the sudden and rapid motion of the cars, thrown suddenly and violently against and upon said platform, and received great bodily harm, etc.

The answer denies all the material allegations of the petition. The testimony was to the effect, that the plaintiff, who lived at Nevada, which was near a station on the defendant's road, accompanied his sister-in-law to the station, with a view to see her and her child safely on the cars, on the night of the 15th of May, 1872; that the train was behind time by half an hour or more; that on its arrival, the plaintiff who was on the platform with the lady under his charge, discovered that the ladies' car did not get within ten feet of the platform, and therefore conducted the lady and child to an opening which led to the car immediately behind the baggage or express car, and passed through that car, and perhaps another, until he reached the car next to the sleeping-car; that as soon as the lady was seated, he turned back, and, without having observed that the train was in motion, attempted to get out on the platform, and was thrown or fell upon it and injured.

The evidence in regard to the length of time the train stopped, and as to any signal being given before starting, either by the usual proclamation from the conductor of “all aboard,” or by ringing of the bell, was conflicting. The time the train was stopped was according to all the witnesses, however, between two and five minutes, and the conductor stated, that after his cry of ““all aboard,” he waved his lantern to the engineer as a signal to move. The customary delay at that station of the express train was, according to the statements of the officers, about two and a half minutes.

The court, at the request of plaintiff, instructed the jury as follows:

1. “The court instructs the jury, on the part of plaintiff, that it was the duty of the railroad company, as a common carrier of passengers, by its agents and employees, to have so stopped the passenger cars at the platform at the depot, as to have made it safe for ingress and egress of passengers into and from the same; and also to stop the cars for a sufficient length of time to get on and off the cars with safety, and before starting to have given a signal of starting, for such reasonable length of time as to have enabled passengers to get on with safety, and persons to get off with safety, and if the jury believe from the evidence that the plaintiff, as the conductor of his sister-in-law and her infant child, who were taking passage on said cars, put said sister and child as soon as he could, after the train stopped, on the cars and immediately left and attempted to pass from the cars to the platform, and that the cars were started without giving reasonable length of time to get off, and without giving the usual signal of starting, and that in consequence of such negligence on the part of the employees of the company, the plaintiff was injured in getting from said cars, the jury will find a verdict for the plaintiff, and assess the damages at such amount as they may believe from the evidence that the plaintiff has sustained, not to exceed $10,000.”

2. “The court instructs the jury, on the part of the plaintiff, that if they find for the plaintiff, they are not confined to the actual damages sustained by the plaintiff, but may take into consideration all the circumstances and facts detailed in evidence, and may give exemplary or punitive damages in such reasonable amount, above the actual damages sustained, as they believe the evidence warrants.”

3. “If plaintiff used due diligence in getting from the car, and if the train was prematurely started, without due and reasonable notice of such starting, and if the plaintiff was not conscious of the starting of such train when he attempted to step from the cars to the platform, then plaintiff is not the less entitled to recover on account of the time and manner of his stepping from the car.

The court refused the following instructions asked by defendant. 1. “If the jury believe from the evidence, that plaintiff was not a passenger on defendant's cars, it was not necessary for him to be notified of the time of the departure of the cars.” 2. “That the defendant is not bound to use the same degree of care in regard to the plaintiff, a stranger who voluntarily went upon its cars for the purpose of seeing his sister safely started, that it is to passengers.” 3. “That if the jury believe from the evidence, that the plaintiff voluntarily went upon defendant's cars, without the intention of becoming a passenger, and voluntarily left defendant's cars, and was injured while voluntarily leaving said cars, while they were in motion, he cannot recover.” 4. “That if the jury believe from the evidence, that plaintiff was not a passenger on defendant's cars at the time of the alleged injury, then it devolves upon him to prove that he was on said cars by authority of some person connected therewith, or that it became necessary for him to go upon defendant's cars at that time, before he can recover. And the mere fact that he went upon the cars for the purpose of seeing his sister seated, without proving the...