Hicks v. Pacific R.R. Co.

• Decision Date: 30 April 1877
• Citation: 64 Mo. 430
• Parties: J. D. HICKS, Respondent, v. THE PACIFIC RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

64 Mo. 430

J. D. HICKS, Respondent,

v.THE PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Jackson County Circuit Court.

E. A. Anderson & Thos. J. Portis, for Appellant, cited and commented on: 59 Penn. St., 129; 18 C. B. 46; 7 Met., 596; 12 Id. 485; 31 Vt. 79; Beadle vs. Eastern Counties R. R. Co., 2 C. B. N. S., 509; Case vs. Storer, 4 Exch., 31, 319; Warfell vs. The South Wales R. R. Co., 8 C. B. N. S., 525, 534, (E. C. L. R., vol. 98); Bolch vs. Smith, 7 Hurl. & Nor., 736 (1862), affirming Hounsell vs. Smyth, 7 C. B. N. S., 731 (E. C. L. R., vo. 97); Smith vs. St. Joe, 45 Mo. 449; Barker vs. Midland Rly. Co., 18 C. B. 58 (E. C. L. R., vol. 86); Winterbottom vs. Wright, 10 M. & W., 109; Sweeney vs. Old Colony and Newport R. R. Co., 10 Allen, 368; Gautret vs. Egerton, 2 Com. Pleas, 374, (1867); Stone vs. Jackson, 16 C. B., 199 (E. C. L. R., vol. 81); Corby vs. Hill, 4 C. B. (N. S.), 558, (E. C. L. R., vol. 93); Stout vs. R. R. Co., 17 Wall. 657; See 8 Am. Law Reg., [U. S.], 737, note;Brown vs. Han. & St. Joe. R. R. Co., 50 Mo. 461; Dean vs. Clayton, 2 E. C. L. 461, S. C., 7 Taun. 489; Wilson vs. Brett, 11 M. & W. 113; Robinson vs. Cone, 22 Vt. 213; Johnson vs. Patterson, 14 Conn. 1; Birge vs. Gardiner, 19 Conn. 507; Dixon vs. Bell, 1 Clark, 287-289; Lynch vs. Nurdin, 1 Ad. & Ell. N. S. 29, 38, 9 (41 E. C. L., 422, 426); Vanderplank vs. Miller, 1 Moo. & Malk. 169 (22 E. C. L., 280); Pluckwell vs. Wilson, 5 Car. & P. 375 (24 E. C. L., 368); Luxford vs. Large, 5 Car. & P. 421 (24 E. C. L. 391); Williams vs. Holland, 6 Car. & P., 23 (25 E. C. L. 261); Woolf vs. Beard, 8 Car. & Pa., 373 (34 E. C. L., 435); 2 Stephens, N. P., 10, 18; Rathborn vs. Payne, 19 Wend. 399; Cincinnati, Hamilton & Dayton R. R. Co. vs. Waterson & Kirk, 4 Ohio St., 424; New Haven St. & Trans. Co. vs. Vanderbilt, 16 Conn. 420; Sills vs. Brown, 9 Car. and P. 601 (38 E. C. L.), 245; Vere vs. Lord Cawdor, 11 East., 568; Wadhurst vs. Damane, Cro. Jac., 45; Barrington vs. Turner, 3 Lev. 28; Mayor of Colchester vs. Brooks, 7 Ad. & El., (53 E. C. L., 369); Davies vs. Mann, 10 M. & W., 546; Karle vs. K. C., St. Jo. & C. B. R. R. Co., 55 Mo. 484; Isabel vs. H. & St. J. R. R. Co., 60 Mo. 482; Maher vs. P. R. R. ante, p. 367; Keefe vs. Milwaukee & St. P. R. R. Co., 2 Cent. Law Jour. (March 12th, 1875), 170; Stout vs. Sioux City R. R. Co., 2 Dil. 294; Holmes vs. N. E. R. R. Co., 4 Exch., 254; Gillis vs. R. R. Co., Law Reg., 729, note.

James K. Shelby, for Respondent, cited: Stout vs. Sioux City & P. R. R. Co., 2 Dil. 294; Keefe vs. The Milwaukee & St. Paul R. R. Co., Centr. Law Journ., March 12, 1875; C. & A. R. R. Co. vs. Garvy, Adm'r, 58 Ill. 83; Isabel vs. Hann. & St. Joe. R. R. Co., 60 Mo. 481; Doss vs. Mo., Kas. & Texas R. R., 59 Mo. 27; R. R. Co. vs. Stout, 17 Wall. 657.

HENRY, Judge, delivered the opinion of the court.

This was an action by plaintiff to recover against defendant damages for a personal injury received under the following circumstances:

Plaintiff, at the time of the injury, was between twelve and fourteen years of age. On the evening of August, 1872, plaintiff was at defendant's platform at Lee's Summit, in Jackson county, when a freight train from the east came in on defendant's road.

It was about dusk, and a piece of timber with which one of the cars was loaded, projecting over the side of the car from twenty inches to two feet, struck plaintiff and broke his nose and otherwise injured him.

The plaintiff testified that he was about the middle of the platform when struck. Another witness testified that he (witness) stood in the middle of the platform when the car passed him, and was not hit by it. There was uncontradicted evidence that the agents of the company had repeatedly told plaintiff to keep off the platform. His father lived near the depot, and this boy and others were in the habit of going there when trains arrived, and jumping on the freight trains for a ride. He had no business there that evening. He was sent to the road by his father about half an hour before the arrival of this train to drive some of his hogs off of the track, and the evidence was that he would drive the hogs a short distance from the track and then take a seat on the end of the platform.

The train came in on the main track, and the platform adjoined this track. The evidence shows that between Pleasant Hill and Lee's Summit, a distance of twelve miles, there are five bridges, the last one about four miles east of Lee's Summit. This bridge is twelve feet and nine inches clear on the inside; cars are nine feet wide. At Pleasant Hill the cars were inspected and no projecting timber seen, and not until the plaintiff was injured was it known that the timber was projecting.

The platform was built by the defendant for the accommodation of passengers getting on and off its trains, and of such persons as had business with defendant at its depot.

The court, of its own motion, refusing six asked by defendant, gave the following instructions:

1. “If the jury find from the evidence that the platform, upon which the plaintiff was standing when injured, was the place used by persons on entering and leaving the cars of defendant at Lee's Summit, and also for receiving and discharging freight, and that prior to that time, with the assent of defendant, persons not having business with the defendant were in the habit of standing on said platform, upon the arrival and departure of the trains of defendant, and that plaintiff, while standing on said platform, was struck by a stick of timber loaded on one of the cars of defendant, and projecting from the side of the car over said platform, or a part of it, and that the projection of said stick of timber was dangerous to persons standing on said platform, and was not loaded on said car in the usual manner, and no warning was given, to persons standing on said platform, by any employe of defendant of the danger of said projecting stick of timber; and if you further find from the evidence, that said plaintiff was not guilty of negligence, on his part, which contributed directly to the injury he received, then the jury will find for the plaintiff, and assess his damages at such a sum as you may believe from the evidence he has sustained, not exceeding the amount claimed in the petition.

But if the jury shall believe from the evidence that the stick of timber, which occasioned the injury to plaintiff, worked out of its proper place on the side of defendant's cars, by accident and without the fault of the employees of defendant, and its condition was unknown to the conductor of the train, or other employees of defendant on said train, and could not, by the use of ordinary care on the part of the employees of defendant on said train, have been discovered, and if the jury further find that said car was loaded in the usual way, then your finding will be for the defendant.

Or, if you should find that the injury complained of was caused by the negligence of the plaintiff contributing directly to produce said injury, then your verdict will be for the defendant.

Or, if you shall find that the plaintiff, prior to the time he was injured, had been in the habit, with others, of getting on the trains of the defendant while approaching said depot, for the purpose of riding thereon upon switch of defendant, and that plaintiff had been warned by the employees of defendant against the danger of their getting on the trains of defendant, and if you shall further find that, at the time plaintiff was injured, he was endeavoring to get on the train of defendant, and in doing so was injured, and was thus guilty of negligence which contributed directly to produce the injury he received, then your finding will be for defendant.”

There was a verdict for plaintiff for twenty-one hundred dollars.

A motion for a new trial was filed by the defendant, and plaintiff remitting nine hundred dollars of the amount found by the jury, the court overruled the motion for a new trial and entered a judgment for plaintiff for twelve hundred dollars, from which defendant appealed.

The right of plaintiff to recover in this case does not depend upon the principle of law applicable to the case of a passenger or one who has procured a ticket to go as a passenger upon the train, who is injured while on, or getting off or on the train. The plaintiff was not a passenger, nor was he there to become such, nor had he any business with the defendant or any one else which required him to go on the defendant's platform. He had no right to be on the platform in the strict sense of the word, but was there by sufferance. Yet he was not a trespasser, and his being there was not such a negligence as the law recognizes as contributing directly to the injury. The evidence that plaintiff had been in the habit of going to the depot on arrival of trains, and getting on freight trains for a ride on the switch, and that he had been warned of the danger, and told by defendant to keep off of the platform, we do not regard as an imperative order; but, under the circumstances, as only advisory, and not making plaintiff a trespasser when he went on the platform.

In Giles vs. the Penn. Railroad Co. (59 Penn. 129), it was held, and we think correctly, that “the platform of a railroad company, at its station or stopping place, is in no sense a public highway. There is no dedication to public use as such. It is a structure erected expressly for the accommodation of passengers arriving and departing on the train.”

That was a case of injury received by one from the falling of a platform at a railroad station where a large concourse of people had assembled to see Andrew Johnson, and the distinguished gentlemen who accompanied him, when he visited the west while President of the United States.

The court further observed in that case: “The plaintiff may not have been technically a trespasser. The platform was open; there was a general license to pass over it. Bu...