Albin v. Chicago, Rock Island & Pacific Railway Co.
| Decision Date | 09 November 1903 |
| Parties | JAMES W. ALBIN, By Guardian, etc., Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Gentry Circuit Court.--Hon. Gallatin Craig, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
W. F Evans, McDougal & Sebree for appellant.
(1) The court committed error in refusing to give the demurrers to the evidence offered by the defendant at the close of plaintiff's evidence. Yarnell v. Railroad, 113 Mo. 570; Roddy v. Railroad, 104 Mo. 234; Barney v. Railroad, 126 Mo. 372; Rine v. Railroad, 88 Mo. 392; Loring v. Railroad, 128 Mo. 349; Powell v. Railroad, 59 Mo.App. 626; Railroad v Mendoza, 60 S.W. 327; Skipton v. Railroad, 82 Mo.App. 134, 144; Gurley v. Railroad, 93 Mo. 445; Dlauhi v. Railroad, 139 Mo. 291; Ely v Railroad, 77 Mo. 34; McCarty v. Railroad, 144 Mo. 397; Buffington v. Railroad, 64 Mo. 246; Chitty case, 148 Mo. 64; Farr v. Adams Express Co., 75 S.W 183, July 8, 1903; Garven v. Railroad, 75 S.W. 193, July 8, 1903. (2) The plaintiff's own negligence in stepping on the track immediately in front of the moving engine, when he knew it was operating in front of the depot, and when he could have seen it if he had looked and heard it if he had listened, was so clearly proven as to defeat his action, even if he had shown the negligence alleged in the petition. Butts v. Railroad, 98 Mo. 272; Boyd v. Railroad, 105 Mo. 371; Peterson v. Railroad, 156 Mo. 552; Fusili v. Railroad, 45 Mo.App. 535; Tanner v. Railroad, 61 S.W. 826; Kelsey v. Railroad, 129 Mo. 362; Payne v. Railroad, 136 Mo. 562; Lien v. Railroad, 79 Mo.App. 475; Weller v. Railroad, 164 Mo. 180; Conrad Co. v. Railroad, 89 Mo.App. 534, 391; Holwerson v. Railroad, 157 Mo. 216; Hutchinson case, 88 Mo.App. 376. (3) Plaintiff's instruction No. 3 defining the measure of damages is erroneous, in that it authorizes damages to be assessed for future pain and anguish likely to be suffered. Bigelow v. Railway, 48 Mo.App. 367, 374; Curtis v. Railroad, 18 N.Y. 534; Hardy v. Railroad, 89 Wis. 183, 187; Kucera v. Merrill Lumber Co., 91 Wis. 637, 645.
Perry & Lyons, Harber & Knight for respondent.
(1) Plaintiff was a passenger. Stewart v. Goodrich, 9 Mo.App. 125; Hausberger v. Railroad, 82 Mo.App. 566; Friermuth v. McKee, 86 Mo.App. 64; Hardwick v. Cox, 50 Mo.App. 509; Loe v. Railroad, 57 Mo.App. 350; Madison v. Railroad, 60 Mo.App. 599; Schepers v. Railroad, 126 Mo. 671 loc. cit.; R. S. 1899, sec. 655; Black v. Railroad, 72 S.W. 559 (Mo. ); Hoyer v. Const. Car Co. 72 S.W. 135 (Mo.); Pope v. Railroad, 99 Mo. 400; Shaw v. Railroad, 104 Mo. 656. (2) A passenger is justified in acting upon the invitation of an employee of the company clothed with such apparent authority, and if he is injured in consequence of following such instructions he can not be guilty of contributory negligence. Talbot v. Railroad, 72 Mo.App. 291; Allender v. Railroad, 37 Ia. 264; Railroad v. State, 63 Md. 135; Warren v. Railroad, 8 Allen (Mass.) 227; Railroad v. Kane, 69 Md. 11; Railroad v. Morgan, 64 S.W. 688 (Tex. Civ. App. 1901); Murphy v. Railroad, 43 Mo.App. 342; Smith v. Railroad, 108 Mo. 234; Whitehead v. Railroad, 99 Mo. 263, 270 loc. cit.; Newcomb v. Railroad, 169 Mo. 404; McGee v. Railroad, 92 Mo. 216, 217 loc. cit.; Hicks v. Railroad, 68 Mo. 329; Whitehead v. Railroad, 99 Mo. 263, 270 loc. cit. (3) Plaintiff was a passenger and entitled to protection as such, even though he had not purchased a ticket. The purchase of a ticket is not necessary to constitute the relation of passenger and carrier. Schepers v. Railroad, 126 Mo. 672; Spry v. Railroad, 73 Mo.App. 214; Eichorn v. Railroad, 130 Mo. 575; Waller v. Railroad, 59 Mo.App. 410; Cross v. Railroad, 56 Mo.App. 664; Murphy v. Railroad, 43 Mo.App. 342; Buck v. Railroad, 108 Mo. 179; Muhlhausen v. Railroad, 91 Mo. 332; Whitehead v. Railroad, 99 Mo. 263 (and cases cited); Walton v. Railroad, 107 Mass. 108; Shear. & Redf. on Neg. (4 Ed.), 489; Murphy v. Railroad, 48 Mo.App. l. c. 347; Railroad v. Chancellor, 60 Ill.App. 525; Waller v. Railroad, 59 Mo.App. 410; Eichorn v. Railroad, 130 Mo. 575; 5 Am. and Eng. Ency. Law (2 Ed.), 572 and cases cited. (4) The demurrer to the evidence was properly overruled. Allender v. Railroad, 37 Iowa 264; Railroad v. Chancellor, 60 Ill.App. 525; Murphy v. Railroad, 43 Mo.App. 342; McGee v. Railroad, 92 Mo. l. c. 208-218; Railroad v. Harmon, 64 S.W. 640; Railroad v. State, 63 Md. 135; Shear. & Redf. on Neg., sec. 525; Railroad v. Morgan, 64 S.W. 688; Warren v. Railroad, 90 Mass. 230 (8 Allen); Wheeler v. Railroad, 105 Mass. 207; Terry v. Jewett, 78 N.Y. 344; Klein v. Jewett, 26 N.J.Eq. 474; Railroad v. Tomlinson, 64 S.W. 347; Railroad v. Johnson, 59 Ark. 122; Brassel v. Railroad, 84 N.Y. 241. (5) Plaintiff's instruction No. 3 on the measure of damages is not erroneous. Griswold v. Railroad, 115 N.Y. 61; Railroad v. Davidson, 76 F. 517, l. c. 524. (In this case the authorities cited by appellant are discussed.)
This is a suit for personal injury alleged to have been sustained by the negligence of the defendant. The gist of the petition is as follows:
Plaintiff states that on or about the twentieth day of April, 1900, at and near the depot, station and platform owned and used by said defendant railway company in the city of Caldwell, Sumner county, Kansas, and in the nighttime, and while the plaintiff was lawfully attempting to cross one of the railroad tracks of said defendant railway company, being the track nearest the platform in front of said depot and station for the purpose of boarding a train of cars of said defendant company, and taking passage thereon, which said train of cars so intended to be boarded by plaintiff was then on the second track from said platform in front of said depot and station the defendant by its agents, servants and employees, while operating and running a locomotive engine and tender attached thereto (commonly called a switch engine) on said first track nearest the said platform in front of said depot or station, carelessly, negligently, unskillfully and recklessly ran said engine and tender backwards on and against the plaintiff, etc.
Plaintiff's testimony showed the following state of facts:
The plaintiff, who at the time of the injuries was a boy less than eighteen years of age, had been born and reared in Gentry county, Missouri, and at the time of the trial and for some time prior thereto had lived with his mother in the neighborhood of Darlington about five miles from the place of trial, and had worked as a farm hand prior to the time he was injured. About the middle of April, 1900, he had gone with his mother to visit relatives in Weatherford, Oklahoma. On the way down they had gone from El Reno to Weatherford on a freight train. His mother started him home alone on the morning of the 19th and gave him sufficient money to pay his fare. He came from Weatherford to El Reno on a freight train on the "Choctaw" railroad the same way he had gone there, and paid his fare on the train. He arrived in El Reno about daylight to take the Rock Island from there north. He waited there about an hour and a half and then took a freight train north for Caldwell, for the reason, as he states, that there was no passenger train north till that evening, and paid his fare on the train. He arrived at Caldwell (which is a division on defendant's road, and as far as the train went) about six o'clock in the evening, got off the train at the depot, and immediately went into the depot and inquired when the passenger train would leave for Topeka. The agent told him 7 o'clock, and thinking he had ample time the plaintiff went up town, got his supper, walked around and got back to the depot about ten minutes after the train had gone. The agent told him that there would be no other passenger train till the next morning, and he then inquired if there would be a freight train and the agent told him there would be one out about eleven o'clock. Preferring to take this train rather than wait till the next morning he waited around the depot till the train came in or was made up. The train, however, did not get ready to pull out until about 1 o'clock on the morning of the twentieth. When the train pulled up in front of the station plaintiff asked the agent in charge of the office if that was his train. The agent replied that it was and told him to get on it. All of the foregoing testimony in regard to the time and manner of his arrival, his inquiries at the depot, and the directions of the agent and what he did in pursuance thereof, was admitted at the trial without objection upon the part of appellant.
The depot faced the east, and the train was standing on the second track in front and a little south of the waiting room. The plaintiff had purchased no ticket, because, as he says the money was just as good, and he had theretofore paid his fare on the trains on defendant's road. Following the directions of the depot agent, he left the waiting room, crossed the platform toward his train, and as he was crossing the first track in front of the depot he was struck by the tender in the rear of a switch engine which was backing south in front of the depot. He fell toward the tender on the footboard and was carried some twenty-five feet, when it seems the switch engine was stopped by a signal from the yard-master. He got off the footboard and started to walk and fell down or sat down on the edge of the platform where he was discovered ten or fifteen minutes later.
The plaintiff testified that there was no light on the rear of the engine or tender, and that no bell was ringing nor was any other signal given of the approach of the backing train; that it was a dark night; that there...
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