Chance v. St. Louis

• Decision Date: 24 May 1881
• Citation: 10 Mo.App. 351
• Parties: HIRAM CHANCE, Respondent, v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

10 Mo.App. 351

HIRAM CHANCE, Respondent,

v.ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

May 24, 1881.

A railway company is liable for injuries resulting to a passenger who, on leaving the car after night, attempts, by direction of the brakeman in charge of the car, to cross a gully by way of a certain bridge maintained by another upon the company's grounds, and is injured by a defect in the bridge which could not then be seen.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Affirmed.

THOROUGHMAN & PIKE, for the appellant, cited: 1 Thomp. on Neg. 409; Sweeney v. Railroad Co., 12 Allen, 368; Balch v. Smith, 7 Hurl. & N. 741.

BROWN & YOUNG, for the respondent, cited: McDonald v. Railroad Co., 26 Iowa, 145; Allender v. Railroad Co., 43 Iowa, 276; Gaynor v. Railroad Co., 100 Mass. 215; Hulbert v. Railroad Co., 40 N. Y. 146.

BAKEWELL, J., delivered the opinion of the court.

This is an action for damages for an injury alleged to have been sustained by plaintiff, through the fault of defendant. There was a verdict and judgment for plaintiff for $350.

There was evidence tending to show that plaintiff was a passenger from St. Louis to De Soto, on the cars of defendant. The train arrived at De Soto after dark. Plaintiff was asleep when the cars reached De Soto, which was the stopping-place of the train, and his destination. The platform at the De Soto depot is about four hundred and fifty feet long. There is a crossing-place for passengers and carriages near the depot, which is kept open, and kept in repair by the company. Running parallel with the platform, and west of it, is a gully or drain, used by the town, but which is on defendant's grounds. Besides the crossing maintained by defendant, there are bridges across this ravine, erected by private individuals at points opposite their places of business, for the convenience of passengers. The ravine is about three feet deep and five feet wide, and these little bridge-ways are about fifteen feet long. After the passengers generally had left the cars, they were backed to a siding in front of defendant's platform, where they remain for the night. Whilst the cars were moving back, the brakeman in charge of the cars roused plaintiff and told him not to get out until the cars would stop at the crossing. When the cars reached one of these little bridges they stopped, and the brakeman pointed the bridge out to plaintiff as the crossing he ought to take. The plaintiff, following this direction, got down on the west side and made for his hotel, which was on the west side of the wide street or open space along which the cars run. Plaintiff, in proceeding across the little bridge-way, which was about three and a half feet wide, fell, and severely injured his knee, the leg going up to the knee-cap, through a gap in the bridge caused by a missing plank. This footoridge, with other similar bridges across the gully in front of defendant's platform, and on defendant's ground, are commonly used by passengers and others going from the platform to the places of business on the west side of the street; though the large crossing kept open by the company at the south end of the platform, was more generally used by passengers, both because it was kept open and free from cars, and because it was more convenient to passengers getting off in front of the depot. The plat in evidence is omitted from the bill of exceptions, which causes some difficulty in understanding all the testimony. As we can make out, the place at which plaintiff got off the car was about one hundred and fifty feet north of the point on the platform where the depot is, at which are the steps from the platform to the larger crossing. The testimony is contradictory as to whether plaintiff was wakened by the brakeman before reaching De Soto, or not. It is admitted that the recovery is not excessive, if plaintiff is entitled to recover at all.

The court gave the following instructions at the instance of plaintiff:--

1. “If the jury believe from the evidence that the defendant suffered and permitted a bridge or plank crossing to be thrown across a ditch or depression on its grounds at or near the depot mentioned in the petition and evidence, so to remain in such manner as to invite passengers to cross the same in going to and from defendant's cars, and if the plaintiff, being a passenger on one of defendant's trains, was thereby induced to cross said bridge, and if the defendant negligently permitted holes or open ways in said bridge, and if the plaintiff, while crossing said bridge, without fault or negligence on his part directly contributing thereto, stepped into such opening and thereby suffered the injuries complained of, the verdict should be for plaintiff.

2. The court further instructs the jury that if the defendant permitted bridges or plank crossings to be thrown across a ditch on its premises, at or near the depot, and if the defendant negligently permitted openings or holes to be in such bridge, and if the plaintiff, being a passenger on one of defendant's cars, was directed by an employee or servant of defendant on such car to cross on said bridge, and if plaintiff, while so crossing the same, stepped into a hole or opening therein and sustained the injuries complained of, without any fault or negligence on his part directly contributing thereto, the verdict should be for the plaintiff.

3. If the jury believe from the evidence that the bridge or plank crossing on which it is alleged that plaintiff was hurt, was a private crossing, not erected or maintained by defendant, then defendant is not liable for such injury, though such crossing was on the defendant's ground, unless the defendant permitted the same to be so erected and kept as to invite passengers to cross on the same, or unless plaintiff was directed by an employee or servant of defendant on the car in which plaintiff was a passenger, to cross the same.

4. If the jury believe that plaintiff was guilty of any fault or negligence on his part directly contributing to the injury complained of, he cannot recover in this action.”

The court, of its own motion, gave the...