76 Mo. 288 (Mo. 1882), Henry v. St. Louis, K. C. & N. Ry. Co.

Citation:76 Mo. 288
Opinion Judge:HOUGH, J.
Party Name:HENRY v. THE ST. LOUIS, KANSAS CITY & NORTHERN RAILWAY COMPANY, Appellant.
Attorney:Wells H. Blodgett for appellant. C. H. Mansur for respondent.
Court:Supreme Court of Missouri
 
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Page 288

76 Mo. 288 (Mo. 1882)

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...

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