Adams v. Missouri Pac. Ry. Co.

• Citation: 12 S.W. 637,100 Mo. 555
• Parties: ADAMS v. MISSOURI PAC. RY. CO.
• Decision Date: 21 December 1889
• Court: United States State Supreme Court of Missouri

12 S.W. 637

100 Mo. 555

ADAMS v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

December 21, 1889.

CARRIERS OF PASSENGERS — NEGLIGENCE.

A passenger aged 67, and in good health, was directed to get off defendant's train, a freight carrying passengers, before reaching his station. His duties requiring haste, he started on beside the train, the road-bed being closely fenced with barbed wire, but soon came to a bridge, to get over which he had to mount a flat-car, as did also another passenger. Reaching the front of the car, and being anxious lest the train might start, he, having first examined the ground, jumped from the coupling outward, with one hand on the car in front, and in landing broke his leg. Held, that the facts did not constitute a cause of action. BRACE and BLACK, JJ., dissenting.

Appeal from circuit court, Cass county; NOAH M. GIVAN, Judge.

T. J. Portis and Adams & Bowles, for appellant. Railey & Burney, for respondent.

BRACE, J.

This is an action for personal injuries, in which the plaintiff recovered judgment in the circuit court for $10,000 damages, from which the defendant appeals. At the time of the injury the defendant was carrying passengers on all its freight trains. The plaintiff, by profession a minister of the gospel, aged about 67 years, in good health, earning about $700 per annum in his profession, took passage on one of defendant's freight trains at Archie, a station, for Harrisonville, another station, on defendant's road, paying the usual fare to the conductor, and informing him of his place of destination. When the caboose in which plaintiff was riding, and which was at the rear end of the train, arrived at a point about one-quarter of a mile from the depot at Harrisonville, at which passengers were usually landed, the conductor came to him, and said: "You will have to get off here. I am not going to stop when I start. I will not stop at the depot. I shall go on as fast as I can;" and, leaving him, went forward on the flat-cars loaded with coal in the train, towards the engine and the depot. The plaintiff seeing no other employes of the road about, and being unacquainted with "the ground around there," got off the caboose at the rear end thereof, and discovered that the train was stopping on a "fill," and that the road-way on each side was fenced with a barbed-wire fence of five strands. His business being urgent, he started on the road-bed along-side the train, towards the front, to make his way up to the depot. He had proceeded in his course but a short distance, (three or four car-lengths from the caboose,) when he came to a bridge across a water-way, provided for through the fill in the ravine. The bridge resting on two perpendicular stone abutments, about 15 feet high, the whole space of the bridge occupied by one of the flat-cars in the train, loaded with coal, and the space between the bridge and the barbed-wire fence running parallel with the road, closed by a similar fence running from the one to the other, his further progress in the direction of the depot was thus completely blocked, except by way of the coal-car over the bridge. His subsequent movements appear from the following extracts from his evidence given on the trial: "Question. Now state to the jury why you didn't go on to the depot. Answer. There was a barbed-wire fence right before me, and one at my right side, and I could not get out. There was a young man on the other side of the train. It was Mr. Kerens, and he was a little more active than I was, and got up on one of the flat-cars, and I got up on that flat-car, and walked the length of it, until we passed over the culvert, and then I swung off, and tried to get down as cautiously and prudently as I could. The train was standing still at that time. In getting off I was probably considerably excited for fear the train would start. I was a long ways from the engine, and I didn't know when the engine would start. I hurried to get off, and when alighting I fell over, so that I think my foot struck the end of one of the ties, and snapped the leg right there. Q. State to the jury if it was hurt as you got off the train. A. I hadn't made a motion with the other foot until I felt my leg give way. Q. State to the jury what was the condition of your eye-sight at that time. A. My sight is not as good as it was some years ago. I examined the ground before I got down; I thought I could make it. Q. State to the jury what was the condition of the ground there, so far as you could see. A. The ground was quite descending. It was rather steep. It was lower from the side track out to where the grade commenced. I thought it was pretty level where I looked and where I was stepping. I looked as well as I could, hurriedly. I saw no reason why I could not make it safely. Near the ties, if I remember rightly, it was level, — that is my recollection of it, — and it descended rapidly a few feet further. On Cross-Examination. Q. Describe the manner in which you got off the car. A. Well, I remember of holding to the car in front of me with one hand. I was considerably exercised, for fear that they would start. I was hurrying, and using all the care and caution that I could. I remember of putting my hand on the car in front of me, but whether I had hold of anything with my right hand I could not say. I was between the freight-cars, and had hold of the one in front of me with my left hand. I do not know what I had hold of with my right hand. I do not know that I could have reached anything. Q. Then you put your hand on the car and sprang to the ground? A. Well, yes, sir; I sprang as far as I thought necessary, — was as careful as I could be. Q. Do you know the height of those cars? A. No, sir; I do not. Q. Can you approximate it? A. It would be guess-work. I should think from three to four feet; I was on the coupling between the cars. Q. The train was still there when they took you away? A. Yes, sir. Q. When you called to Mr. Kerens to get assistance, he was off the train, was he not? A. Yes, sir. Q. He had gotten off on the ground? A. Yes, sir; I think it was from the flat-car ahead of me." The fracture was an oblique one of both bones of plaintiff's left leg. The external bone was fractured into the ankle joint; the internal bone was fractured higher up. The plaintiff, after the injury, received prompt surgical attention, was confined to his bed about ten days, and his leg kept bandaged for about two months, and then he began gradually to regain the use of it, with the assistance of crutches. The defendant offered no evidence, but at the close of plaintiff's evidence asked, and the court refused, an instruction in the nature of a demurrer to the evidence of the plaintiff, and thereupon the case was submitted to the jury under instructions asked for by the plaintiff, and a...