Burke v. St. Louis Southwestern Railway Co.
| Decision Date | 27 November 1906 |
| Citation | 97 S.W. 981,120 Mo.App. 683 |
| Parties | BURKE, Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.
AFFIRMED.
Judgment affirmed.
S. H West, with Carter, Collins & Jones for appellant.
(1) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence at the close of plaintiff's case and in refusing a similar instruction at the close of the entire case. (2) The court erred in granting plaintiff's first instruction. Schepers v Railroad, 126 Mo. 665; Schaefer v. Railroad, 128 Mo. 64; Barth v. Railroad, 142 Mo. 535; Raming v. Railroad, 157 Mo. 477; Webster v. Railroad, 24 L. R. A. 521; Dodge v. Steamship Co., 148 Mass. 209; Merrill v. Railroad, 139 Mass. 238; Com. v. Railroad, 129 Mass. 500; Warren v. Railroad, 8 Allen 227; Traction Co. v. State, 28 A. 397; 2 Shearm. and Redf. on Negligence (4 Ed.), sec. 488; Pattison, Ry. Accident Law, secs. 210-214; 2 Am. and Eng. Ency. of Law, 742. (3) The damages are excessive and the result of bias, passion or prejudice on the part of the jury. Fairgrieve v. Moberly, 29 Mo.App. 151; Haynes v. Trenton, 108 Mo. 123; Johnson v. Railroad, 67 Minn. 264; Slette v. Railroad, 53 Minn. 345; Lombard v. Railroad, 47 Ia. 494; Nicholds v. Plate Glass Co., 126 Mo. 55; Chitty v. Railroad, 166 Mo. 435; Hurt v. Railroad, 94 Mo. 255; Dwyer v. Hickler, 43 N.Y. 221; Collins v. Albany, 12 Barb. (N. Y.) 492; R. R. v. Fox, 11 Bush. 495; Chicago v. Hughes, 87 Ill. 94; Chicago v. Payzent, 87 Ill. 125; Covington v. Wear, 84 Ky. 267.
A. R. Taylor and Howard Taylor for respondent.
(1) The appellant presents as his first ground of complaint that his demurrer to the evidence should have been sustained. This clause, like the general welfare clause of the Constitution, is made to do service to meet all contingencies. (2) This action is not based upon the relation of accepted passenger and carrier, but upon the relation of an intending passenger, going to take passage on a carrier at the usual place of accepting passengers. He was lawfully passing over the way provided for the carrier to receive passengers. He only claims in his petition and instructions that the carrier must use reasonable and ordinary care due to any person lawfully on its station. (3) All persons going to the carrier's station where passengers usually take passage for the purpose of taking passage or other lawful purpose or business are entitled to all the care this plaintiff asked, either in his petition or instructions. (4) This principle of law is recognized so generally that citation of authorities would seem superfluous. Murphy v. Railroad, 43 Mo.App. 342; Alben v. Railroad, 103 Mo.App. 308; Omarn v. Railroad, 102 Mo.App. 202; McCarty v. Railroad, 105 Mo.App. 601; Chance v. Railroad, 10 Mo.App. 357; Stafford v. Railroad, 22 Mo.App. 333; Sargent v. Railroad, 114 Mo. 348; Fullerton v. Fordyce, 121 Mo. 1; Waller v. Railroad, 59 App. 410. (5) The court is asked to apply the scales to this verdict and see if the jury were warranted in awarding it, and to declare the jury governed by passion or prejudice in awarding a verdict of $ 4,500. Furnish v. Railroad, 102 Mo. 438, an injury to a wife's spinal column; verdict, $ 15,000, remittitur $ 5,000, case approved. The husband, for the injury to the wife, was awarded $ 5,000 for loss of services and $ 800 expenses, and the verdict approved. Furnish v. Railroad, 102 Mo. 677; Burdette v. Railroad, 123 Mo. 236; Chitty v. Railroad, 166 Mo. 443; Murkey v. Railroad, 185 Mo. 365; Devoy v. Railroad. 192 Mo. 227; Perritte v. Kansas City, 162 Mo. 203; Barr v. City, 121 Mo. 33; Railroad v. Taylor, 68 Ill App. 613; Heyde v. Railroad, 102 Mo.App. 542.
--Appeal from a judgment for forty-five hundred dollars in an action for damages due to a personal injury. The accident happened on July 20, 1904, at a steamboat landing at Gray's Point. Defendant is a common carrier which makes use of steamboats to transport passengers across the Mississippi river from said landing to Thebes and other points in Illinois. It seems that, in the main, the passengers are carried over on defendant's railroad cars, which are loaded on the boats; but the evidence shows it was the custom to receive foot passengers on the boats, too. Defendant's railroad track runs down the slope of the bank of the river at Gray's landing; but on account of the rise and fall of the river at different stages of the water, the track laid on the ground is not always available for loading cars on the boats. That is to say, the river at certain stages will rise so high as to cover part of the tracks, and to overcome this obstacle, defendant used a device known as a "cradle," which was a short, detached railway track made to fit over the ground track and with rails extending to the boat called "feather rails." These feather rails lap over the rails of the regular track of the railroad and are thinned to an edge so a car can be shoved along the main track until it reaches this edge, when it will proceed along the cradle track to the boat. The two feather rails of the cradle track were held together by iron rods extending from one to the other, called "bridle rods." The cradle was adjustable and could be shoved up and down the regular inclined track which ran down the river bank, so cars could be moved onto the boat at any stage of the water. Adjusting the cradle track at the right point was called "staking" it and was done in this manner: A wooden beam would be put against the land end of the cradle and the other end of the beam attached to a locomotive, which would push the track toward the river or pull it away as might be necessary; the steamboat pulling or pushing on the cradle at the other end. Testimony shows it was customary to receive foot passengers on steamboats at the landing where the cradle was operated, though they were generally received at a more commodious landing further up the river. The testimony showed, also, it was the custom to permit foot passengers to walk down the railroad track and onto the boat over the cradle. Witnesses for the plaintiff testified to this custom. Plaintiff swore that in going aboard one of defendant's boats, he walked along the ties of the regular track until he came to the cradle and had just stepped over the first bridle rod, or iron bar used to hold the two feather rails in place, when the steamboat, which was in the act of landing, jostled against the river end of the cradle, pushing it further up the regular track, thereby forcing the second bridle rod against plaintiff's ankle, driving his foot between the rod and a tie, breaking both bones of his leg five and one-half inches below the knee and giving him a severe cut in the groin. He was in the company of another man who was not hurt. The allegations of negligence in the petition are that the means provided for boarding the boat were defective and dangerous and defendant was negligent in that regard and also in failing to warn plaintiff of the dangerous condition of the means to board the boat, and permitting him to go on the cradle without warning. There was evidence that boats struck the cradle and jostled it frequently, and one witness swore this occurred nearly every time a boat landed. The defense was a general denial and a plea of contributory negligence; the latter consisting of an averment that plaintiff negligently went on the inclined tracks over which defendant moved its cars and locomotives to and from its transfer boats, and negligently stepped on the cradle while it was in motion. The testimony for defendant was that plaintiff walked on the cradle while it was being staked; that is, while a locomotive was shoving it and a steamboat backing and pulling on it; that his companion observed the movement of the cradle and stepped aside, thereby escaping injury. There was evidence to show plaintiff had not bought a ticket before starting to board the boat, though notices were posted requiring passengers to do so. Other evidence was that passengers were accustomed to pay their fare after they got aboard. There is contradictory evidence regarding whether or not the boat plaintiff was taking passage on was bound for Thebes, his destination, or Gale; an immaterial question, though defendant lays some stress on it. The errors assigned are these: A verdict should have been directed for defendant, the first instruction for plaintiff was incorrect, the verdict is so glaringly against the weight of the evidence that prejudice in the jury is demonstrated and the damages assessed are so excessive as also to prove prejudice. Plaintiff lay in a hospital for nearly four and one-half months on account of his injury; his expenses there were $ 108 and his bill to the physician who attended him $ 35. He was kept from work nine months, his injured leg is slightly shorter than the other...
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