69 S.W. 348 (Mo. 1902), Newcomb v. New York Central & Hudson River Railroad Company

Citation:69 S.W. 348, 169 Mo. 409
Opinion Judge:MARSHALL, J.
Attorney:Thomas T. Fauntleroy for appellant. Everett W. Pattison for respondent.
Case Date:June 28, 1902
Court:Supreme Court of Missouri

Page 348

69 S.W. 348 (Mo. 1902)

169 Mo. 409

NEWCOMB, Appellant,



Supreme Court of Missouri, First Division

June 28, 1902

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferris, Judge.

Reversed and remanded.

Thomas T. Fauntleroy for appellant.

(1) It is the duty of a carrier of passengers to use ordinary care to have its depot platforms in a reasonably safe condition for the use for which they are intended. It was error to exclude from the jury the issue of negligence in that particular in this case. Fullerton v. Fordyce, 121 Mo. 1; Waller v. Railroad, 59 Mo.App. 410; Railway v. Wortham, 73 Tex. 25. (2) It is part of the duty of a carrier of passengers to use ordinary care to regulate and manage the approaches to its cars at a large terminal station, so as to give reasonable notice of the location and departure of its respective trains, and especially where several trains are to leave by different routes, about the same time, for the same destination; and the trial court erred in excluding from the jury the issue of defendant's negligence in that particular by the third and thirteenth instructions given. A carrier is bound to take reasonable care at a terminal station to afford all necessary facilities to its passengers in entering and leaving its cars, and a breach of that duty is negligence and is actionable if injury directly results thereform, just as is negligent management of its cars while the passenger is in transit. Eichorn v. Railroad, 130 Mo. 575; McGee v. Railroad, 92 Mo. 208; State v. Blunt, 110 Mo. 392; Railroad v. Brown, 78 Tex. 397. (3) It was error in the trial court (after first narrowing the issues to the single one of want of care in defendant's permitting grease to remain on the "incline," or sloping platform, where plaintiff slid under the cars) to tell the jury that plaintiff could not recover at all unless his injury "was caused solely by the negligence of defendant." A party is liable for a negligent act if his want of care directly contributes to the injury caused by said act. It is not requisite that the negligent act be the sole cause. Brash v. St. Louis, 161 Mo. 433; Ring v. Cohoes, 77 N.Y. 83; McDermott v. Railroad, 87 Mo. 285; Scott v. Shepard, 2 Wm. Bl. 892 (the celebrated squib case); Lynch v. Nurdin, 1 Ad. & Ell. (N. S.) 29; Burrows v. Marsh Gas Co., 5 Exch. (L. R.) 67; Webster v. Railroad, 38 N.Y. 260; Lake v. Milliken, 62 Me. 240; Weick v. Lander, 75 Ill. 93; Lane v. Atlantic Works, 111 Mass. 140; Griggs v. Fleckenstein, 14 Minn. 81; Slater v. Mersereau, 64 N.Y. 138. (4) The trial court erred in telling the jury that "any fault, neglect, or want of ordinary care and prudence" on the part of plaintiff, directly contributing to his injury, would defeat his recovery. He was only bound to use ordinary care. The rule given by the court in the third instruction required plaintiff to be free of "any fault," as well as of any "want of ordinary care," in the premises. This was error. Bischoff v. Railroad, 121 Mo. 216; Dickson v. Railroad, 124 Mo. 140. (5) It was competent for plaintiff to show, by the testimony which the court excluded, that a similar condition of the platform in question had been observed by the witnesses at various times within six months before the date of plaintiff's injury. It was error to exclude that testimony. Hoover v. Railroad, 16 S.W. 480; District v. Armes, 107 U.S. 519; Golden v. Clinton, 54 Mo.App. 100; Chase v. Railroad, 38 N.Y. 954 (affirmed, 133 N.Y. 619).

Everett W. Pattison for respondent.

(1) The injury did not result from the causes specified in the petition, or any of them. Henry v. Railroad, 76 Mo. 293; Chitty v. Railroad, 148 Mo. 64; Neville v. St. Louis Merch. Bridge, 158 Mo. 293. (2) The duty which defendant owed plaintiff was to use ordinary care to furnish a station which was safe and proper for passengers going to or coming from the trains in the ordinary manner, and for getting on and off the trains in an ordinary manner. Kelly v. Railroad, 112 N.Y. 443; Ainley v. Railroad, 42 Hun 206; Lafflin v. Railroad, 106 N.Y. 139; Thompson on Carriers, p. 104 n.; Hiatt v. Railroad, 96 Iowa 169; Flint & P. M. R. Co. v. Stark, 38 Mich. 714. (3) Defendant was under no obligation to furnish to plaintiff a safe place to jump to from a moving train. Railroad v. Scates, 90 Ill. 586; Burrows v. Railroad, 63 N.Y. 556; Solomon v. Railroad, 103 N.Y. 444. (4) The first and last instructions properly confined the jury to the question of grease or oil on the platform. The same theory is adopted by appellant in his instruction numbered 2. Thorpe v. Railroad, 89 Mo. 666; Christian v. Ins. Co., 143 Mo. 467; Phelps v. Salisbury, 161 Mo. 14; Sowden v. Kessler, 76 Mo.App. 584; Putnam v. Railroad, 55 N.Y. 119; DeMahy v. Railroad, 45 La. Ann. (2d part) 1329; Lewis v. Railroad, 54 Mich. 55; Bishop on Non-Contract Law, sec. 42. (5) The criticisms on instructions 3, 4 and 7 are without merit. Yarnall v. Railroad, 113 Mo. 580; Plefka v. Knapp, 145 Mo. 321; Carvin v. St. Louis, 151 Mo. 345; Bartley v. Railroad, 148 Mo. 140; Railroad v. Jones, 95 U.S. 442; Jones v. Railroad, 4 App. Dec. 172. (6) The court below committed no error in its rulings on the evidence. Goble v. Kansas City, 148 Mo. 470. (7) Under the pleadings and plaintiff's own testimony, the court below might properly have taken the case from the jury. Chitty v. Railroad, 148 Mo. 64; Henry v. Railroad, 76 Mo. 288; Jones v. Brownlee, 161 Mo. 258.


Page 349

[169 Mo. 412] MARSHALL, J.

On August 7, 1897, the plaintiff purchased a ticket at St. Louis for transportation to New [169 Mo. 413] York, over the Wabash, Michigan Central, and New York Central railroads. At 6:30 p. m. on Sunday, August 8th, he arrived at Buffalo, New York, over the Michigan Central railroad, where a stop of twenty minutes was provided for supper. From Buffalo to New York the plaintiff was to go over the New York Central railroad. The defendant's depot at Buffalo, into which the Michigan Central train came and out of which the New York Central train was to go, fronts north on the south side of Exchange street. Next to the street is the ticket office, waiting-room, baggage-room and restaurant. In the rear thereof, to the south, are tracks numbered one to six from north to south. There is a platform for passengers to use running parallel with the track between the building and track number one, and similar platforms between tracks two and three and four and five. In other words, the tracks are constructed in pairs, with platforms between each pair for passengers to use in reaching the trains on the several tracks. There are three cross-overs or runways across the tracks inside of the station. The first is one hundred feet east of the west end of the station. The second is four hundred and fifty feet east of the west end of the station, and directly opposite the waiting-room. The third is five hundred and fifty feet east of the west end of the station, and is on a prolongation of the exit from the station to Exchange street between the waiting-room and the restaurant. The platforms were elevated about seven or eight inches above the rails. These cross-overs are made to enable passengers to conveniently cross over the tracks and also so that the trainmen can run the baggage trucks across the tracks to the several trains. To reach the cross-overs there are inclines in the platform. They are fifteen feet and three inches long and the rise is less than eight inches, so that the incline is about half an inch to the foot. The incline is in the line of the platform, that is, from west to east, the crossways extend from north to south. The whole construction [169 Mo. 414] is what is called by the witnesses "the standard plan," adopted by the engineers of the New York Central railroad, and in use at all stations along its line.

The Michigan Central train, upon which the plaintiff arrived in Buffalo, entered the station from the west, upon track number six, the track furthest from the station buildings. Learning that he had twenty minutes for supper, the plaintiff left the sleeper, in which he had been traveling, and without noting the name of the sleeper -- although it was upon his sleeping-car ticket -- he went across one of the three cross-overs, he does not know which, to the restaurant. After eating his supper, he started back across the tracks, by way of one of the three cross-overs, to his sleeper. In doing so he met a friend from St. Louis, Mr. Knox, and they walked along together. Some one stopped Mr. Knox and the plaintiff proceeded alone. He crossed the platform between the restaurant and track number one; he crossed the first pair of tracks, numbered one and two; he crossed the platform between tracks two and three; he crossed the next pair of tracks, numbered three and four, and when he reached the platform between track number four and track number five he turned west and walked along the platform. There was a train standing on track number four (which was the West Shore train) and a train standing on track number five (which was the New York Central train to which his sleeper had been transferred from the Michigan Central train). It was then 6:45 p. m., the regular schedule leaving time of the West Shore train. The New York Central train was not to leave until 6:50 p. m. While walking west along said platform, with the West Shore train on his right and the New York Central train to his left, the two trains being separated only by the platform, which was about fifteen feet wide -- he noticed that the train on his right was moving. The porter of the sleeper attached to that train had left the platform and gotten on to the step of the sleeper. The plaintiff [169 Mo. 415] stepped up to the train and...

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