Austin v. St. Louis & S. F. R. Co.

• Decision Date: 07 July 1910
• Citation: 130 S.W. 385,149 Mo. App. 397
• Court: Missouri Court of Appeals
• Parties: AUSTIN v. ST. LOUIS & S. F. R. CO.

130 S.W. 385

149 Mo. App. 397

AUSTIN v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

July 7, 1910.

1. CARRIERS (§ 314) — INJURY TO PASSENGERS — PETITION — SUFFICIENCY.

A petition in an action for injuries to a passenger, which charges facts showing the existence of the relation of carrier and passenger at the time of the injury, sufficiently alleges the liability of the carrier, and it need not in terms charge that the act of the agent of the carrier causing the injury was within the scope of his authority.

2. CARRIERS (§ 314) — INJURY TO PASSENGERS — PETITION — SUFFICIENCY.

A petition in an action for injuries to a passenger on a freight train, which alleges the wrecking of a part of the train, and which avers that the conductor thereafter requested the passenger to leave the caboose and go forward with him to assist in saving property, that the passenger attempted to leave the caboose which had stopped on a high embankment, and that he being unacquainted with the surroundings fell down the embankment and was injured, sufficiently charges that the injuries were the proximate result of the negligence of the conductor during the continuance of the relation of passenger and carrier, and that the conductor was in the line of his duty, so that the carrier was liable.

3. CARRIERS (§ 280) — PASSENGERS — LIABILITY OF CARRIER.

A carrier of passengers must exercise the degree of care which very prudent men would take to guard against all dangers which may naturally, and according to the usual course of things, be expected to occur.

4. CARRIERS (§ 247) — PASSENGERS — EXISTENCE OF RELATION.

A temporary departure by a passenger from the train for any good or reasonable cause, without intent to abandon transportation, does not end the relation of carrier and passenger.

5. CARRIERS (§ 247) — PASSENGERS — EXISTENCE OF RELATION.

A passenger on a freight train who, at the request of the conductor, alighted from the caboose to assist in the saving of property endangered by a wreck of a part of the train did not thereby cease to be a passenger, and the carrier owed him the duty to protect him from injury while alighting and of informing him of the dangers of his act, and where the conductor invited the passenger to leave the caboose while in a dangerous position known to him and unknown to the passenger, and the passenger was injured in consequence, the carrier was liable.

6. CARRIERS (§ 303) — PASSENGERS — SETTING DOWN PASSENGERS.

Where the conductor of a train invites a passenger to alight from a car in which he was riding at a dangerous place, the carrier is guilty of negligence.

7. CARRIERS (§ 336) — PASSENGERS — CONTRIBUTORY NEGLIGENCE.

A passenger on a freight train carrying his live stock, who, at the request of the conductor, alighted from the caboose to assist in the saving of property endangered by a wreck of a part of the train, was entitled to recover for injuries sustained in consequence of alighting from the caboose while in a dangerous position, as against the objection that he was a volunteer, as his act was that of a prudent and reasonable man, justified by the conditions surrounding him and the invitation of the conductor, acting within the scope of his authority.

8. DAMAGES (§ 130) — PERSONAL INJURIES — EXCESSIVE DAMAGES.

A passenger on a freight train alighted from the caboose at the request of the conductor, and slid off an embankment 25 or 30 feet high. He suffered greatly by reason of his injuries and was disabled at the time of the trial. Held, that a verdict for $2,000 was not excessive.

Appeal from Circuit Court, Dunklin County; J. L. Fort, Judge.

Action by C. P. Austin against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. F. Evans and James Orchard, for appellant. W. S. C. Walker and Barbour & McDavid, for respondent.

NIXON, P. J.

This action was brought by the plaintiff for alleged personal injuries, and upon trial he recovered judgment for $2,000. The defendant in the trial court has appealed.

On January 30, 1905, the respondent shipped two car loads of stock from Senath, Mo., consigned to the National Stock Yards, East St. Louis, Ill. Respondent accompanied the stock. After the train had left Cape Girardeau, a point on the route, a bridge gave way and the engine and one or two cars of the appellant went down in the wreck. The respondent, as stated, was a passenger on the train, accompanying his stock to market. When the bridge gave way, the conductor thinking the engineer and other members of the train crew were killed, requested the respondent and another passenger to go forward with him to help save the property. At the request of the conductor, the respondent did get out of the caboose, where he had been riding, for the purpose of obeying the directions of the conductor. The conductor, however, being ahead, went on with his lantern — it being dark — so that respondent had no means of ascertaining where they were getting off. In fact, the caboose had been stopped on a high embankment of the railroad, the top of which sloped down at a sharp angle. The top of the roadbed being narrow, and the ground sloping, and covered with ice and sleet, it was a dangerous place for a passenger to alight. The respondent, when trying to alight, or soon afterwards when making an effort to leave the caboose — the surroundings being wholly unknown to him — slipped and fell down the embankment which was about 25 or 30 feet high. He received serious injuries, as he claimed. The evidence tends to show that after he stepped down from the caboose, about the time his feet struck the ground, he stepped off or slid off the embankment and rolled over and over to the bottom. The evidence also tends to show that the conductor knew the location that the caboose was in at the time and knew the surroundings, and that there was ice and sleet on the ground; that he gave no warning, however, paying no attention to any one. Plaintiff claimed that he suffered greatly by reason of his injuries and was still disabled at the time of the trial. With these facts submitted to the jury, a verdict for $2,000 in plaintiff's favor was returned.

The petition charges substantially the foregoing facts; also that the defendant is a corporation operating a railroad as a common carrier; that plaintiff shipped the stock and accompanied the same to market, and that plaintiff at the time of his injury was entitled to passage on defendant's train from the point of shipment to the point of destination. The occurrence of the wreck is recited. That thereupon the conductor in charge of the train, as the agent of the defendant, called upon and requested the plaintiff to come out of the caboose and assist him in looking after the defendant's train, stating that the engineer and the crew had apparently gone down in the wreck; that the defendant, by its conductor and agent, instructed him to get out of the side door of the caboose;...