Bond v. Chicago, Burlington & Quincy Railway Co.
| Decision Date | 03 December 1906 |
| Citation | 99 S.W. 30,122 Mo.App. 207 |
| Parties | DAVID H. BOND, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Grundy Circuit Court.--Hon. George W. Wannemaker, Judge.
AFFIRMED.
Judgment affirmed.
O. M Spencer, N. O. Borders and William Henry for appellant.
(1) One entering a train as an escort for a person taking passage thereon is not deemed a passenger, and is entitled to no time to get off except that afforded in performing the company's duty to its passengers, 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, and to hold the train for him long enough to enable him to so act and leave the train by the use of reasonable expedition is the full measure of the company's duty. Doss v. Railroad, 59 Mo. 27; Yarnell v. Railroad, 113 Mo. 570; Straus v Railroad, 75 Mo. 185. (2) For a person to get on or off of cars while moving, in disregard of the protest or warning of those in charge thereof, is to assume the risk of the act and the recklessness or negligence implied will preclude a recovery. Fulks v. Railroad, 111 Mo. 335; Behen v. Transit Co., 186 Mo. 443; Railroad v. ___, 44 Ill. 460; Blake v. Railroad, 78 Iowa 57; Dodge v. Steamship Co., 148 Mass. 207; Jewell v. Railroad, 54 Wis. 610; Railroad v. Aspell, 23 Pa. St. 147; 5 Am. and Eng. Ency. Law 647. (3) In actions founded upon negligence a causal connection between the negligence and injury must be alleged and proved, and if there are two or more causes from either of which injury might result and from only one of which liability would attach, that one must be shown to have been the cause (Goransson v. Manufacturing Co., 186 Mo. 309) and a plaintiff will not be permitted to recover in a case of negligence, on a theory of fact as to the physical cause of the injury other than the one alleged and supported by his evidence. Behen v. Transit Co., 186 Mo. 430. (4) When on the evidence reasonable minds may differ as to a question of fact, it is for the jury to determine, otherwise the court may declare the law arising upon the fact. Holmes v. Railroad, 190 Mo. 105; Mathis v. Stock Yards Co., 185 Mo. 461. (5) It is a well-settled rule of practice that an appellate court will interfere in case of a verdict of a jury being so clearly against the weight of the evidence that it must have been the result of passion or prejudice. Hipsley v. Railroad, 88 Mo. 348; Cruth v. Richardson, 96 Mo. 186; Spohn v. Railroad, 87 Mo. 74; Cooper v. Hunt, 103 Mo.App. 9. (6) It was improper to give to the jury instructions 1, 2, 3 and 6, as prayed by plaintiff, and also in refusing to the jury instructions numbered 4, 5, 6, 10, 11, 12 and 13, and the one in the nature of a demurrer at the close of the whole evidence, as prayed by defendant.
Pross T. Cross, W. S. Herndon and Harber & Knight for respondent.
(1) The defendant's requested instruction in the nature of a demurrer was properly overruled. Bond v. Railroad, 110 Mo.App. 131; Doss v. Railroad, 59 Mo. 27; Yarnell v. Railroad, 113 Mo. 570; Saxton v. Railroad, 98 Mo.App. 494. (2) Jurors are presumed to understand the meaning of ordinary English words, and are to be accredited with ordinary intelligence. Cooper v. Johnson, 81 Mo. 483; Thornberry v. Thompson, 18 Mo.App. 421; Lorimore v. Legg, 23 Mo.App. 645; Fillingham v. Transit Co., 102 Mo.App. 573; Ilegs v. Transit Co., 102 Mo.App. 529. (3) Defendant objects to plaintiff's instruction numbered 2 on the ground that in speaking of the jerking of the train, the word "negligence," or "negligently" is not used. This identical point was before the Supreme Court in the case of Luckel v. Century Building Co., 177 Mo. 608, and that court held in that case that the omission of the word "negligently" from plaintiff's instruction was not error.
--Plaintiff brought this action in the circuit court of Clinton county to recover damages alleged to have been sustained in consequence of the negligent act of defendant in suddenly starting a passenger train while plaintiff was in the act of alighting there-from. A trial in that court resulted in a judgment for plaintiff, which on appeal we reversed and remanded on account of error in the instructions. [Bond v. Railroad, 110 Mo.App. 131.] After this, the cause was sent to the Grundy Circuit Court on change of venue where plaintiff filed an amended petition. On retrial the judgment was for plaintiff and again defendant appealed.
At the first trial the cause of action pleaded in the petition was restricted in its scope to the negligent act of defendant in suddenly and violently starting a train which had stopped at a station for the purpose of discharging and receiving passengers and thereby throwing plaintiff from the step of one of the coaches while he was in the act of stepping therefrom to the station platform. In the amended petition now before us, this act of negligence is reasserted and in addition thereto averments are made under which plaintiff predicates a right to recover on the sudden and violent acceleration of the speed of a slowly moving train from which he was attempting to alight. The right of plaintiff thus to amend his petition was not attacked, but defendant answered with a general denial and plea of contributory negligence and went to trial on the issues joined.
The injury occurred about ten o'clock in the morning of October 4, 1902, at defendant's station in Lathrop. Plaintiff, a farmer, sixty-four years of age but robust and vigorous, accompanied his married daughter to the station to assist her departure on the morning train for St. Louis. She had just recovered from a severe illness, was weak and being burdened with heavy hand-baggage required assistance. The train stopped at the station about one minute, so the trainmen testify, and plaintiff and his daughter, the former carrying the baggage, immediately proceeded to the steps at one end of the coach provided for women. A brakeman was stationed at that place and plaintiff says he was informed in effect that plaintiff's daughter was bound for St. Louis and that plaintiff was not intending to become a passenger but was assisting her to the train. The brakeman told plaintiff that he might carry the baggage into the car. Plaintiff did this hurriedly and after depositing the baggage in the car returned without consuming any time in leave-taking. To this point the witnesses for plaintiff agree. They differ concerning the conditions that obtained at the time plaintiff received his fall. Some of them say that the train remained at a dead stop until plaintiff reached the last step and began his step to the station platform when it started with a sudden and very violent jerk. Plaintiff himself testified,
On the part of defendant the witnesses tell a different story. The brakeman, who was standing near the entrance to the car, denies he was informed that plaintiff was not intending to become a passenger and supposing the opposite to be the fact was not expecting him to return from the car. All who were in the car admit that the old gentleman acted in a hurried and excited manner in entering and leaving it and did not remain therein longer than was necessary to deposit the baggage. They say, however, that some one had closed the car door after his entry and that his exit was momentarily delayed by his excited fumbling with the door knob in his effort to open the door and that the train started before he reached the car platform. There he encountered the brakeman who warned him against attempting to alight, but, unheeding, he rushed on and jumped with his face towards the rear of the train when it was running approximately at the rate of five miles per hour. Thus it will be seen there is a radical and irreconcilable conflict between the witnesses of the contending parties and without going into details we find ample support in the facts and circumstances appearing in the record for each account of the injury.
Defendant urges, as it did on the former appeal, that plaintiff should not be permitted to recover under any reasonable view of the facts adduced. The argument advanced deals partly with principles of law, but mainly rests on the assumption that defendant's evidence so preponderates that it completely overwhelms that of plaintiff and requires us to reject the latter entirely and look only to the former for substantial facts. It is beyond the scope of our duty as an appellate tribunal to weigh conflicting evidence in jury cases. That function belongs exclusively to the triers of fact and their exercise thereof is not subject to review or correction on appeal. It is within our province to set aside a judgment when we find in the record no substantial evidence to support the verdict on which it is based, since the question of whether the evidence adduced in a given case possesses any probative value is one of law and not of fact. But, where we find the evidence to be substantial, our functions cease and we cannot assume the right to weigh such evidence with that opposed to it without invading the province of the triers of fact. In the present case we find the verdict is supported by substantial evidence. Indeed, the weight of the evidence appears to be on the side of the plaintiff's contention,...
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