59 Mo. 27 (Mo. 1875), Doss v. Missouri, K. & T.R. Co.

Citation:59 Mo. 27
Opinion Judge:NAPTON, Judge.
Party Name:S. P. DOSS, Respondent, v. MISSOURI, KANSAS & TEXAS R. R. CO., Appellant.
Attorney:Philips & Vest, for Appellant. Waldo P. Johnson, for Respondent.
Court:Supreme Court of Missouri

Page 27

59 Mo. 27 (Mo. 1875)

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.)

OPINION

NAPTON, Judge.

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...

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