Henry v. St. Louis, Kansas City & Northern Ry. Co.

• Citation: 76 Mo. 288
• Parties: HENRY v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
• Decision Date: 31 October 1882
• Court: United States State Supreme Court of Missouri

76 Mo. 288

HENRY

v.THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Chariton Circuit Court.--THOMAS SHACKLEFORD, ESQ., Special Judge.

REVERSED.

Wells H. Blodgett for appellant.

1. An injured passenger is without remedy, unless the injury could have been avoided by the exercise of ordinary care on his part, after becoming aware of the danger to which he was exposed. As to passengers projecting their arms and elbows from windows, see Todd v. R. R. Co. 3 Allen 18; Pittsburg & C. R. R. Co. v. Andrews, 39 Md 329; s. c, 17 Am. Rep. 568; Pittsburg, etc., R. R. Co. v. McClurg, 56 Pa. St. 294; L. & N. R. R. Co. v. Sickings, 5 Bush 1; Holbrook v. R. R. Co., 12 N. Y. 236; Ind. & Cin. R. R. Co. v. Rutherford, 29 Ind. 82. As to passengers jumping off and on trains while in motion, see Nelson v. R. R. Co., 68 Mo. 593, and cases cited. As to passengers leaving trains at unsafe places, instead of by platform, see Forsyth v. R. R. Co., 103 Mass. 510; Frost v. R. R. Co., 10 Allen 387; Penn. R. R. Co. v. Zebe, 33 Pa. St. 318. As to passengers going on track without reason, after having left the train, see Bancroft v. R. R. Co., 97 Mass. 275; L. S. & M. S. R. R. Co. v. Hart, 87 Ill. 529. As to riding on engine, pilot or cow-catcher, see B. & P. R. R. Co. v. Jones, 95 U. S. 439; Robertson v. R. R. Co., 22 Barb. 91.

2. The act of the defendant's servants in ordering the plaintiff out of the car was not the proximate cause of the injury. The proximate cause of the injury was the act of the plaintiff in placing himself out of sight behind the flat car on the side-track. This act was the result of deliberate thought and independent action on his part. In going where he did he was not fleeing from danger, nor was he directed, invited or allured by any act or word of the defendant. Assuming that plaintiff had a lawful right in the car, yet no one could foresee or expect that, if excluded, from the car he would go and stand behind the flat car between the rails on the side-track. The act of standing upon the side-track behind the flat car was not to be expected as a result of ordering him out of the car.

3. The plaintiff had no right to assume that the bell would be rung, the whistle sounded or light hung out, for the defendant owed no such duty to him in the position he was when injured.

C. H. Mansur for respondent.

The question whether the plaintiff had acted as a prudent man would have done under the same circumstances, was a question for the jury. After being expelled from the car, he had a right to remain near the train to be able to go along with it when it started.

HOUGH, J.

This is an action to recover damages on account of certain personal injuries received by the plaintiff and resulting from his being knocked down and run over by a flat car of the defendant while standing behind said car and between the rails of one of defendant's tracks in its switch-yard, in the town of Moberly, on the night of September 7th, 1876.

On the day of said 7th of September, the firm of Platter, Crow & Co., of which plaintiff was a member, shipped a car-load of horses from Chillicothe to St. Louis, over the railway of the defendant, under a contract which entitled the plaintiff to transportation on the train hauling his stock. He got on the caboose car of the freight train on which his stock was, at Brunswick, and reached Moberly in safety about 11 o'clock p. m. of the same day. When the train reached the round-house west of the passenger depot at Moberly, the caboose was detached and the train was run down into the lower end of the company's yard, east of the passenger depot, where a train was to be made up to go on to St. Louis, having in it the car containing plaintiff's stock. When the caboose was detached, the brakeman said to plaintiff, “You get out and go down to the other caboose; this caboose goes no further.” Plaintiff was also informed that his train would start from the lower or eastern end of the yard, in the course of an hour or two. Thereupon plaintiff and one Wagner, who was also going to St. Louis on the same train with plaintiff, got out and walked to the depot, and after remaining there about an hour, went eastward to the lower end of the yard to find their train. The night was quite dark, neither moon nor stars were shining, but it was light enough to enable plaintiff to distinguish his gray horses in the car, when close to them. When he found the train containing his stock, which appeared to be made up and ready to go, he and Wagner walked immediately back to the east or forward end of the caboose, which was at the rear or west end of the train, and got upon the platform of that car. Wagner tried the door of the caboose, but failed to open it, and after remaining on the platform a few moments, the plaintiff becoming uneasy, tried the door and opened it and walked in. The car was dimly lighted by a lantern, and as plaintiff was about to seat himself, some person who was reclining on the opposite side of the caboose asked him what he was doing in there. The plaintiff stated that he had stock upon the train, whereupon the other gruffly said: “Get out of here; the train is not ready.” Plaintiff thereupon went out on the platform of the car, where Wagner was, and the two remained there several minutes conversing and studying what to do. The yard contained five parallel tracks. The car on which they stood was on the center track, and there were two tracks on either side, with spaces between about six feet wide. Plaintiff had never been in the yard before, but he knew it was the switch-yard of defendant. Wagner stepped down from the platform of the caboose and turned to go west toward the depot; the plaintiff also left the platform, but wishing to remain near the caboose so he could conveniently jump on when they commenced pulling up the train, he walked south across the first track, which was unobstructed as far as he could see, both east and west, and went to the second track, and stepped between the rails of the second track immediately behind the east end of a flat car which was standing on said track, intending to get upon the flat car and remain there until his train was ready to start. There were other cars west of the flat car, but none east of it. As plaintiff stepped upon the track he put his hand upon the flat car, and finding that they had been hauling dirt upon it concluded that he would not soil his clothes by getting upon it, and he then turned around and was standing with his back toward the car, and was about to move away, when the flat car was struck by cars pushed against it from the west, and it ran over him, crushing his leg. Plaintiff heard no engine or train in motion to the rear of him, before he heard the noise made by the concussion of the cars, when he was struck, and he saw no light in the direction from which the cars came, and no light in the yard, save one to the east, and near the forward end of the train on which his stock was. Plaintiff testified that he saw no yardman or brakeman in the yard, at or before the time of his injury; that if there were any near enough to see him, he did not see them, and that if there had been a brakeman on the rear of the train pushed in on the track on which he was injured, such brakeman could not have seen him at the...