Carroll v. Interstate Rapid Transit Co.
| Decision Date | 07 December 1891 |
| Citation | 17 S.W. 889,107 Mo. 653 |
| Parties | Carroll v. The Inter-State Rapid Transit Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court. -- Hon. Chas. W. Sloan, Judge.
This is an appeal from a judgment for plaintiff for $ 3,208.41 entered upon a verdict in the circuit court of Cass county. After the usual motions and exceptions the defendant appealed. The action is for personal injuries.
The defendant company was operating an elevated railway line in Kansas City, Missouri, extending thence a short distance into the state of Kansas. On this line defendant ran passenger cars, and exercised the vocation of a common carrier. The place where the plaintiff's mishap occurred was near the James street station on that line; the time, October 20 1886.
Plaintiff and his brother came to that station after dark on the evening in question to take passage on one of defendant's trains. The brother succeeded in getting aboard at the usual entrance for passengers. The plaintiff did not; but he attempted to attach himself to the outer side of the gate and sheet-iron covering, closing the steps of the rear platform of the last car, as the latter passed him in motion, and so far succeeded, that he was hanging on there when the train passed a structure of the Armour Packing Company, which stood near the track, and swept him from his position into the street, some twenty or twenty-five feet below, inflicting serious injuries. This structure, or "cattle chute," was within a distance of two hundred and thirty or two hundred and forty feet from the station, according to plaintiff's witnesses, and within six inches of the passing cars.
The material portions of the testimony given by plaintiff's brother (referred to in the opinion) are as follows "When I got on the car the conductor upbraided me. He spoke rather sharp and cross about me getting on. He said 'You are liable to get hurt because you were getting on a moving train,' he scolded me because I tried it. We both went into the car. I took my seat near the door. He collected the fare from me. After we got a little piece, and the conductor was collecting the money from me, Mr. Anderson, who had his head out of the window, pulled it back and said, 'There is a man hanging on behind.' It startled me to hear it; at the same time I supposed it would be natural enough for a man to be on the rear end of the car. I did not know the condition of the cars. I had not observed that. He says, 'He has got a lamp in his hand.' Mr. Anderson seemed to be rather excited about it. When he told the conductor that this man was hanging on, the conductor was making my change and says that, 'If the stock-drive hits him he will get off.' The conductor said that while he was collecting my fare. As he mentioned the stock-drive Rotert says, 'Look out for your arms.' Mr. Anderson was looking out of the window, and Mr. Rotert says, 'Look out for your arms,' then he pulled back his arm. After we passed the cattle-drive Mr. Anderson looked out and says, he is off.' At that the conductor passed through the cars at the rear end of the rear car and looked out. It was after the train had passed it. I don't know whether Mr. Anderson could see or not, I should think he could. It was a distance of forty or forty-five feet from where Mr. Anderson sat to the rear of the platform. With his head out of the window he could see that distance on the curve. There was a sharp curve there, and I suppose he could see the rear end of the rear car, although he was in the front coach. I said nothing at the time Anderson made the remark, but sat still. I didn't think at the time it was my brother; had no idea he was hanging on there. I thought probably he would come on the other train; I had a notion to wait for it myself. I sat there with no notion that there was a man hanging on. I didn't say a word. I knew my brother had no lamp, and consequently didn't think this man could be him. I sat there perfectly indifferent. I didn't think it was my brother there. I thought it was a trainman with his lamp. Nothing suggested to my mind that anyone was in danger at the time. I went on to Mulberry street some blocks above, at the terminus of the road at that time. I waited for my brother to come there, supposing he was on the other car. He didn't come, and I went to the union depot; waited for him there about half an hour, and while waiting there the conversation that took place in the car came to my mind. I became alarmed that it might have been he that was on behind and have met with an accident. I went over to the drug store and telephoned to see if there had been an accident, and found that there had been. I went home and found my brother there and the surgeon dressing his wounds."
All other essential facts are mentioned in the opinion of the court.
Reversed.
Warner, Dean & Hagerman for appellant.
(1) Where the facts and the inference to be drawn from them are undisputed, it is the duty of the court to declare whether they establish or do not establish negligence. If in a personal injury case like that under consideration, the facts and the inferences to be drawn from them fail to establish the allegations of negligence in the plaintiff's petition, then it is the duty of the court to declare that negligence is not established. In like manner, if the undisputed facts and the inferences to be drawn from them show that the plaintiff's negligence concurred in bringing about the injury, then the court should declare, as a matter of law, that the plaintiff's contributory negligence prevents recovery. Weber v. Cable Co., 100 Mo. 194; Barton v. Railroad, 52 Mo. 253; Lenox v. Railroad, 76 Mo. 86; Fletcher v. Railroad, 64 Mo. 484; Callahan v. Warne, 40 Mo. 13; Powell v. Railroad, 76 Mo. 80, and cases cited; Zimmerman v. Railroad, 71 Mo. 491; Malone v. Railroad, 64 Mo. 267. See also authorities cited under points 2 and 3, post. (2) The specified acts of negligence must be the proximate cause of the injury or there can be no recovery. The first four alleged acts of negligence of defendant, namely: First. Failure to provide lights at station. Second. Failure to stop train sufficient length of time. Third. Covering the steps and closing the gate of the rear platform of the car. Fourth. Running the railroad in proximity to the upright timbers of the hog chute, were not the proximate cause of the injury. Stepp v. Railroad, 85 Mo. 229; Harlan v. Railroad, 65 Mo. 22; Powell v. Railroad, 76 Mo. 233; Waldhier v. Railroad, 87 Mo. 37; Nelson v. Railroad, 68 Mo. 593. (3) The plaintiff's act in attempting to get on the train and riding swinging to the platform, as shown by the undisputed evidence in this case, in consequence of which he was injured, was the plainest kind of negligence on his part, and prevents recovery. Weber v. Cable Co., 100 Mo. 194; Harvey v. Railroad, 116 Mass. 269; Solomon v. Railroad, 103 N.Y. 437; Railroad v. Scates, 9 Cent. Law Journal, 167; Phillips v. Railroad, 49 N.Y. 177; Nelson v. Railroad, 68 Mo. 593; Strauss v. Railroad, 75 Mo. 185; Knight v. Railroad, 23 La. Ann. 462; Harlan v. Railroad, 65 Mo. 22. (4) The fifth specification of negligence or failure of conductor to stop train after it had started is not sustained by testimony.
W. A. Fyke and W. S. Shirk for respondent.
(1) It was defendant's duty to keep its station platform reasonably well lighted, and a failure to do so constitutes negligence. Buenemann v. Railroad, 32 Minn. 390; S C., 18 Am. & Eng. R. R. Cases, 153, and note on 155 and 156, citing a large list of cases from different states; Bennett v. Railroad, 102 U.S. 577; Stewart v. Railroad, 2 Am. & Eng. R. R. Cases, 497; Railroad v. White, 48 Ark. 495; Railroad v. Arnold, 35 Am. & Eng. R. R. Cases, 466. (2) And it was his duty to stop its trains at its depot platforms long enough to enable its passengers to alight from its cars, and those desiring to get aboard to do so, and a failure to do so is negligence. Railroad v. Rector, 104 Ill. 296; Dawson v. Railroad, 11 Am. & Eng. R. R. Cases, 134; Strauss v. Railroad, 75 Mo. 185; Swigert v. Railroad, 75 Mo. 475; Clotworthy v. Railroad, 80 Mo. 220. And we might cite a host of other cases, for a fair list of which see note to Brooks v. Railroad, 16 Am. & Eng. R. R. Cases, on pages 346-7. (3) To place a platform and steps upon the rear end of its cars, and then to cover the steps over with sheet-iron, and bar entrance to the platform by an iron gate, in such a manner as would escape the notice of an ordinarily prudent man, under the circumstances of this case, was plainly negligence on the part of defendant. (4) After defendant's conductor was notified of defendant's perilous position, it was his duty to do all he could, with safety to his train, to avoid injuring plaintiff, and a failure to do so was negligence for which defendant was liable. Burnham v. Railroad, 56 Mo. 338; Meyer v. Railroad, 59 Mo. 223; Bergman v. Railroad, 88 Mo. 678; Werner v. Railroad, 87 Mo. 368; Donahue v. Railroad, 91 Mo. 357. (5) To construct defendant's railroad, so near to the upright timbers of the cattle chute, that its cars passed within from seven to ten inches of such timbers, was a reckless and dangerous act, and was negligence per se. 1 Rohrer on Railroads, pp. 477, 478, and notes 1 and 2, citing 63 Ill. 167; Railroad v. Leonhardt, 66 Md. 70. And it would have been negligence, in case of the injury of an employe who did not know of the danger. Devitt v. Railroad, 50 Mo. 302. (6) These acts of negligence on defendant's part were the proximate cause of the accident. Railroad v. Kellogg, 4 Otto (S. C. U. S.) 469; Wharton on Neg., sec. 85; Nagel v. Railroad, 75 Mo. 653; Boggs v. Railroad, 18 Mo.App. 274; Waldhier v. Railroad, 87 Mo. 37; Dunn v. Railroad, 21 Mo.App....
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