Bond v. The Chicago, Burlington & Quincy Railway Company

• Decision Date: 19 December 1904
• Parties: DAVID H. BOND, Respondent, v. THE CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

84 S.W. 124

110 Mo.App. 131

DAVID H. BOND, Respondent, v. THE CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 19, 1904

Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

O. M Spencer, F. B. Ellis and Wm. Henry for appellant.

(1) One entering a train as an escort for a female taking passage thereon is not deemed a passenger, and is entitled to no time to get on or off, except that afforded in performing the company's duty to its passangers, unless the company has notice of the fact that he enters on the train as a mere escort, and even in that case ordinary care and diligence is the degree of care due such person, and not the high degree of care due to passengers. Doss v. Railroad, 59 Mo 27; Yarnell v. Railroad, 113 Mo. 570. (2) For a person to get on or off of a train of cars propelled by steam at any place while moving, in disregard of the protest or warning of those in charge of the train, is to assume the risk of the act, and the recklessness or negligence implied by law will preclude a recovery. Fulks v. Railroad, 111 Mo. 343; Neville v. Railroad, 158 Mo. 315. (3) Previous to the last named case it had been held by our Supreme Court that in the absence of warning or protest it was not negligence per se for a passenger to get on or off of a moving train at a proper place at a station, provided the motion was slow, that is, so slight as to be almost or quite imperceptible. Clotworthy v. Railroad, 80 Mo. 223; Price v. Railroad, 72 Mo. 418; Straus v Railroad, 75 Mo. 190; Nelson v. Railroad, 68 Mo. 595; Doss v. Railroad, 59 Mo. 38; Fulks v. Railroad, 111 Mo. 335; Kelley v. Railroad, 70 Mo. 608. (4) It is not negligence per se for a passenger to get on or off of a moving train, if urged or directed to do so by those in charge of the train, even though the motion is not slight, or so slow as to be almost imperceptible, but somewhat rapid. Wyatt v. Railroad, 55 Mo. 491; Taylor v. Railroad, 26 Mo.App. 236. (5) It is a long and well-established doctrine that an appellate court will interfere in case a verdict of a jury is so clearly against the evidence, or the weight of it, that it must have been the result of passion or prejudice. Hipsley v. Railroad, 88 Mo. 348; Caruth v. Richardson, 96 Mo. 186; Spohn v. Railroad, 87 Mo. 74; Cooper v. Hunt, 103 Mo.App. 9. (6) The peremptory instruction to find for defendant on the case made by the evidence and pleadings should have been given. Neville v. Railroad, 158 Mo. 293; Fulks v. Railroad, 111 Mo. 343; Heaton v. Railroad, 65 Mo.App. 479. (7) What plaintiff admitted in his deposition must be taken as true for the purposes of this case, and instruction number 1 for him ought to have been refused, and instruction "G" for defendant given. Erwin v. Railroad, 94 Mo.App. 297; Feary v. Railroad, 162 Mo. 105. (8) Instruction "H" prayed by defendant should have been given. Murphy v. Railroad, 43 Mo.App. 342; Heaton v. Railroad, 65 Mo.App. 479; 112 N.Y. 371; 8 Colo. 163; 116 Mass. 269. (1) The peremptory instruction to find for defendant was properly refused. We submit that under the evidence the plaintiff was entitled to have the issues submitted to a jury. James v. Life Assn., 148 Mo. 16; Bruman v. Santa Fe, 72 Mo.App. 107; Tower v. Pauley, 76 Mo.App. 287; Reed v. Railroad, 94 Mo.App. 371; Dorsey v. Railroad, 83 Mo.App. 528; Hopkins v. M. W. of A., 94 Mo.App. 402; and cases cited; Saxton v. Railroad, 98 Mo.App. 499. (2) Instructions "C" and "F" were properly refused. They are not correct statements of the law. Fulks v. Railroad, 111 Mo. 335; Schaefer v. Railroad, 128 Mo. 64; Dawson v. Transit Co., 102 Mo.App. 277; Eikenberry v. Transit Co., 103 Mo.App. 442. (3) Instruction "H" offered by defendant was properly refused, for the following reasons: It was not based on the evidence. Defendant's witnesses testified as to speed of train and three said "about six miles per hour." It is not a correct proposition of law, and especially not under the evidence in this case. Appellant cites cases of Murphy v. Railroad, 43 Mo.App. 432 and Heaton v. Railroad, 65 Mo.App. 479. The Murphy case is not in harmony with the decisions of this court, nor of the Supreme Court. Eikenberry v. Transit Co., supra; Owens v. Railroad, 111 Mo. 335. (4) The appellate courts will not interfere in this regard unless there is a clear case of abuse of this discretion by the trial court. State v. Jacobs, 152 Mo. 565; Kuenzel v. Stevens, 155 Mo. 280.

OPINION

BROADDUS, J.

This is a suit to recover damages for personal injuries received by plaintiff in alighting from a passenger train of defendant at its depot in Lathrop, Missouri, on the fourth day of October, 1902. Plaintiff was a man sixty-four years of age, a farmer and as such a laborer; his married daughter, who lived in St. Louis and who had been visiting him at his farm, was returning to her own home and he and another daughter accompanied her to said depot. Upon the arrival of the train upon which said married daughter proposed to embark on her journey she and plaintiff entered a passenger coach, he carrying her valise and a box which he deposited in a seat some distance from the front end of the coach. The coach door was closed after plaintiff's entrance. In his effort to get off the train plaintiff fell and was injured.

Thus far the facts are practically admitted. Plaintiff's evidence tends to show that his said married daughter, a Mrs. Shanks, had been sick and was at the time quite feeble and that plaintiff entered the coach for the purpose of assisting her with her baggage. Plaintiff proceeded first with his daughter, Mrs. Shanks, following him. When at the entrance, defendant's brakeman said to plaintiff with reference to her baggage, "Take them in for her, you have plenty of time." To which plaintiff replied that he was not going himself but was just helping his daughter on. Plaintiff hurried into the coach with Mrs. Shanks' baggage and then hurried out, Mrs. Shanks coming in the door as he was going out. He went down the steps and as he was in the act of alighting from the train it moved forward with a sudden jerk which caused him to fall upon the platform of the station. That while the train was at the station the brakeman stood at the front door of the rear car and the conductor stood about midway of the baggage car. While plaintiff was inside the chair car the brakeman said to the conductor, "all right here" and the conductor gave the engineer the signal to go, and the train started up immediately.

It was shown that plaintiff was unable by reason of physical disability to be present at the trial and his evidence was by way of deposition.

The defendant's evidence conflicts with that of plaintiff except as to certain matters already stated which are not in dispute. It went to show that plaintiff was dilatory in leaving the coach and had some difficulty in getting the door open and that when he attempted to alight the train was going at a rate of speed equal to four, five or six miles an hour. And the brakeman denied that he used the language attributed to him or that he knew that plaintiff was not aiming to take passage on the train. Defendant's station agent also testified that the train was moving at a rapid rate of speed and that he warned plaintiff not to get off, but that notwithstanding such warning he let go the hold he had with his right hand of the railing on his right, while at the same time he turned his face to the rear of the train, holding the rail with his left hand, leaped off and fell upon the station platform.

After plaintiff's deposition was taken to be read in his own behalf the defendant also had it taken, and both were read on the trial. In the latter plaintiff testifies that as he went to step off the train was moving. There was testimony of other witnesses, however, to the effect that plaintiff was thrown from the steps of the coach by a sudden jerk and that he did not step off while the train was moving. Two witnesses testified that plaintiff told them that he jumped off the train. One of them to the effect that plaintiff said he had thought about jumping before he did so and that he thought if he jumped the way he did it would lessen his fall. And there was also evidence to the effect that the train had moved more than one car length from the point of starting before plaintiff fell upon the station platform.

The trial resulted in a verdict and judgment for plaintiff for $ 2,000 from which defendant appealed.

It is insisted that the court, under the evidence, erred in refusing to instruct the jury to find for the defendant. This insistence is predicated upon the theory that plaintiff was not thrown from the steps of the car by the sudden starting of the train, but that he fell when attempting to alight while it was moving at a rapid and dangerous rate of speed. As the evidence was contradictory upon this issue--the controlling issue in the case--we do not see how the court could have assumed to have directed a finding for defendant without usurping the province of the jury. It is true, the evidence preponderates in favor of defendant's contention that plaintiff stepped from the train while it was in motion and going at the rate of from four to six miles an hour. But a preponderance of evidence alone will not authorize this court to say that the peremptory instructions should have been given. There was substantial testimony that plaintiff was thrown from the coach by the sudden movement of the train.

Defendant in its argument assumes that the facts overwhelmingly established that the train was running at a speed of six or more miles an hour when plaintiff attempted to get off; that plaintiff admitted that...