Bogrees v. Wabash Ry. Co.

• Decision Date: 10 November 1924
• Docket Number: No. 15101.,15101.
• Citation: 266 S.W. 333
• Parties: BOGREES v. WABASH RY. CO., el al.
• Court: Missouri Court of Appeals

266 S.W. 333

BOGREES v. WABASH RY. CO., el al.

No. 15101.

Kansas City Court of Appeals. Missouri.

November 10, 1924.

Rehearing Denied December 1, 1924.

Appeal from Circuit Court, Adair County; J. A. Cooley, Judge.

"Not to be officially published."

Action by Gust Bogrees against the Wabash Railway Company and another. Judgment for plaintiff against defendant named only, and it appeals. Reversed and remended.

Homer Hall, of St. Louis, and Higbee & Mills, of Kirksville, for appellant.

Frank & Stewart, of Kirksville, for respondent.

BLAND, J.

This is an action for damages for personal injuries. The case was tried by the court without the aid of a jury, resulting in a judgment against the defendant railway company in the sum of 83,250 and in favor of defendant Nebergall. The defendant railway company has appealed.

The facts show that on the 8th day of July, 1920, plaintiff was a passenger upon one of defendant's trains from Albia, Iowa, to Kirksville, Mo. The train was due at Kirksville about 1 m. on July 9th. Plaintiff went to sleep shortly after leaving Albia and remained asleep until the train had passed a short distance beyond the station at Kirksville, when he was awakened by either the brakeman or the conductor, he did not know which, and told to "get off." This trainman went to the front of the car and stopped at the door. Plaintiff stood on the last step and asked the trainman if the train would stop, and the trainman said, "No," that it was 15 minutes late and: "Get off; you will make it all right." It was dark and plaintiff could not see the ground. He was half asleep. He did not know how fast the train was going. Plaintiff testified that the trainman "told me to get off, and I thought it was safe. He told me to go ahead, that I will make it. I thought it was safe." Plaintiff stepped off and fell and rolled down a steep embankment, eight or nine feet in height, resulting in his injury.

Defendant's brakeman, Winters, testified that he aroused plaintiff shortly before the train reached Kirksville; that as the train was leaving Kirksville he saw plaintiff asleep; that Nebergall was not in the car, but that he himself awakened plaintiff and said to him that "this is Kirksville" and pulled the bell cord; that the train stopped, and the brakeman alighted on the ground and allowed plaintiff to get off while the train was standing; that plaintiff asked him the way to the depot and walked off. Nebergall testified that he did not order or request plaintiff to get off, but directed the brakeman to awaken plaintiff before the train reached Kirksville; that when the train stopped after leaving the station the witness stepped to the ground from the front of the smoking car, which was ahead of the chair car in which plaintiff was seated, and saw plaintiff and the brakeman get off; that plaintiff did not fall; and that the train was standing when plaintiff alighted. There was other evidence that the train stopped about three car lengths after it left the station at Kirksville.

In his petition plaintiff joined Nebergall, the conductor, as a defendant with the railway company. Plaintiff prayed for damages in the sum of $7,500. The railway company filed its petition and bond for removal to the federal court on the ground of diversity of citizenship, defendant railway company being a nonresident of the state of Missouri. The petition for removal was denied because Nebergall was a citizen of the state of Missouri and because the petition stated a joint cause of action against both defendants. The petition alleges that defendant railway company was negligent in that its conductor, Nebergall, negligently directed plaintiff to alight from the train while it was in motion, with the assurance that it would be safe for plaintiff to do so. There is no negligence of the defendant railway company alleged in the petition that was not also the negligence of the conductor, Nebergall, and it is now insisted by the defendant railway company that the court having found in favor of defendant Nebergall, there can be no recovery against the railway company, or, at least, that the court should have given its peremptory declaration of law for the reason that there was a failure of proof of the cause of action alleged in the petition.

We think there is no question but that there was a failure of proof, although, as there is an inference from the evidence that the negligent order was given by the brakeman instead of Conductor Nebergall, we do not think that a judgment should be entered in favor of the defendant railway company merely because it was in favor of Nebergall. The case of McGinnis v. Railroad, 200 Mo. 347, 98 S. W. 590, 9 L. R. A. (N. S.) 880, 118 Am. St. Rep. 661, 9 Ann. Cas. 656, and like cases cited by the railway company, are ones where the servant alleged to have been negligent, and for whose negligence the defendant corporation was attempted to be held, was in fact and beyond dispute guilty of the negligence, if any negligence there was.

Plaintiff insists there was no failure of proof, but a mere variance. However, we are not able to agree with this contention. Under the petition defendant had the right to conclude that there was no necessity of disproving negligence on the part of any of its servants except the conductor, Nebergall. Defendant was not called on to defend against the alleged negligence of any other servant. Under the petition defendant might be fully prepared to meet the issue of alleged negligence on the part of Nebergall, but not prepared if plaintiff's proof took a broader range and showed negligence by another than the one alleged in the petition. By joining defendant Nebergall, a resident of Missouri, with defendant railway company, and alleging in his petition facts disclosing no liability against the defendant corporation that did not exist against defendant Nebergall, plaintiff escaped having the cause removed to the federal court. We think there is no question but that there was a failure of proof and that the court erred in refusing to give defendant's declaration of law to the effect that there could be no recovery against it unless the negligent order to alight was given by Nebergall and in the giving of declarations upon its own motion to the effect that there might be such a recovery if the order was given either by the conductor or the brakeman, Winters. Salmon v. Railroad, 181 Mo. App. 414, 168 S. W. 829; Reid v. Schaff (Mo. App.) 210 S. W. 85, 88; Bartley v. Street Ry. Co., 148 Mo. 124, 139, 49 S. W. 840; Muser v. Kansas City (Mo. App.) 249 S. W. 681, 682; Beave v. St. Louis Transit Co., 212 Mo. 331, 111 S. W. 52.

It was stated in State ex rel. v. Ellison, 270 Mo. 645, 653, 195 S. W. 722, 724:

"Under the petition the defendant might be fully prepared to meet this issue...