Bond v. Chicago, B. & Q. Ry. Co.

• Decision Date: 03 December 1906
• Court: Missouri Court of Appeals
• Parties: BOND v. CHICAGO, B. & Q. RY. CO.

99 S.W. 30

122 Mo. App. 207

BOND v. CHICAGO, B. & Q. RY. CO.

Kansas City Court of Appeals. Missouri.

December 3, 1906.

Rehearing Denied January 14, 1907.

1. APPEAL—REVIEW—EVIDENCE.

Where the evidence is conflicting, it is not within the province of the appellate court to weigh it.

2. CARRIERS — PERSONAL INJURIES — PERSONS ACCOMPANYING PASSENGERS—QUESTION FOR JURY.

In an action for injuries to plaintiff while alighting from a train after assisting his daughter to board it, evidence held to justify the submission of the case to the jury.

3. TRIAL—INSTRUCTIONS—ASSUMPTIONS AS TO FACTS.

An instruction that if, after the train started, plaintiff received warning from defendant's servants not to get off the train and yet did get off he could not recover on account of his own negligence contributing to his injury was properly refused as assuming that the plaintiff attempted to alight from the train after it had started.

4. CARRIERS—CARE REQUIRED OF PASSENGERS —DUE DILIGENCE—INSTRUCTIONS.

An instruction defining plaintiff's duty in entering and leaving defendant's car was not erroneous because of the use of the expression "due diligence" when in all of the instructions the terms "reasonable diligence," "ordinary care," and "reasonable care" are used synonymously.

5. SAME.

In an action for injuries to plaintiff while alighting from a car, testimony that the train jerked in a violent, unusual, and extraordinary manner was sufficient to justify an instruction as to defendant's liability in such case, though there was other testimony flatly denying this, and endeavoring to show that the manner in which the engine and cars were coupled precluded the possibility of starting the train with a jerk.

6. SAME.

An instruction as to the liability of a carrier if its servants in charge of the train failed to hold it stationary long enough for plaintiff

to assist his daughter into the train, but jerked it in a violent, unusual, and extraordinary manner while he was about to alight therefrom and plaintiff was thereby injured, was not defective in omitting to require a finding that the train was negligently jerked, since the facts hypothecated constituted negligence.

7. SAME—CONTRIBUTORY NEGLIGENCE.

A person is not guilty, as a matter of law, of contributory negligence in attempting to alight from a slowly moving train.

Appeal from Circuit Court, Grundy County; Geo. W. Wanamaker, Judge.

Action by David H. Bond against the Chicago, Burlington & Quincy Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

O. M. Spencer, N. O. Borders, and Wm. Henry, for appellant. W. S. Herndon, Pross T. Cross, and Harber & Knight, for respondent.

JOHNSON, J.

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 therefrom. 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, 84 S. W. 124. 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 10 o'clock in the morning of October, 1902, at defendant's station in Lathrop. Plaintiff, a farmer, 64 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: "I noticed as I went to step off that the train was moving and then I stepped off and that is the last I remember. * * * Q. Where were you at the time you first discovered the train was in motion? A. I think I had got down to the bottom step. I could see, by looking at the platform, that it was moving and it was moving when I got off." 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...