Cossitt v. St. Louis & Suburban Railway Co.
| Decision Date | 14 December 1909 |
| Citation | 123 S.W. 569,224 Mo. 97 |
| Parties | JOHN H. COSSITT v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.
Affirmed.
Boyle & Priest, R. E. Moloney and T. M. Pierce for appellant.
(1) The court erred in refusing to give, at the close of the case, an instruction in the nature of a demurrer to the evidence, at the request of the defendant. (a) Because plaintiff did not prove that defendant's negligence, if any, was the proximate cause of his injuries. Haley v. Railroad, 179 Mo. 30; Railroad v. Kellogg, 94 U.S. 469; Fairbanks v. Kerr, 70 Pa. St. 86; American Brewing Assn. v. Talbot, 141 Mo. 638; Winkler v Railroad, 21 Mo.App. 106. (b) Because the evidence shows that the plaintiff, had he exercised ordinary care for his own protection, could have discovered the peril of the position in which he was placed and could have avoided injury, and the plaintiff voluntarily chose a dangerous way when he had knowledge of a safe route, and his actions therefore, directly contributed to cause his injuries. 5 Thompson on Negligence, sec. 6247; Irion v. Saginaw, 120 Mich. 245; Wheat v. St. Louis, 179 Mo. 572. (2) The court erred in permitting the plaintiff to prove and recover for a permanent injury to his knee when no such injury had been pleaded in his petition. 5 Ency. Pl. and Pr., 748-750; O'Leary v. Rowan, 31 Mo. 117; Brown v. Railroad, 99 Mo. 310; Dunn v. Railroad, 105 Mo. 455; Coontz v. Railroad, 115 Mo. 669; Slaughter v. Railroad, 116 Mo. 269; Nicholson v. Rogers, 129 Mo. 140; Fuller v. Mayor, 92 Mich. 197; I & G. N. R. Co. v. Beasley, 9 Tex. Civ. App. 569; 2 Greenleaf on Evidence (15 Ed.), sec. 88, 89.
Willi Brown for respondent.
(1) The general principle of law is that it is the duty of a railroad carrier to deposit its passengers at a safe place, especially after dark. Winkler Case, 21 Mo.App. 106. Corollary (a). Where the physical surroundings of the place where a passenger is allowed to alight are dangerous, the defendant is liable to a passenger for injuries which happen in consequence of such dangerous surroundings. Atkinson v. Railroad, 90 Mo.App. 489. Corollary (b). The hurt is the proximate consequence of putting the passenger off in proximity to a danger. Evans v. Railroad, 11 Mo.App. 463; Griffith v. Railroad, 98 Mo. 168; Adams v. Railroad, 100 Mo. 555, cited in Hutchinson on Railroads (2 Ed.), sec. 617, n. 3. Corollary (c). If the train overshoots the station platform it is the duty of the carrier to back the train to the station and to warn the passenger of any danger incident to alighting at that point. 2 Woods on Railroads, 1894, sec. 312, p. 1353. Corollary (d). In Missouri the rule is that a carrier is liable for damages for carrying a passenger by a station. Trigg v. Railroad, 74 Mo. 147. 2. The question whether or not plaintiff exercised ordinary care was a question of fact for the jury. 3. It is the duty of a railroad carrier of passengers to have its stations properly lighted at night. Gerhart v. Railroad, 110 Mo.App. 105; Evans v. Railroad, supra. So that the passenger can proceed with safety, in the exercise of care, along the usual course taken by passengers to the place where they would leave the platform. Gerhart v. Railroad, 110 Mo.App. 105. 4. The plaintiff was invited to alight. (a) "The station Paris was announced, thereby inviting plaintiff, nothing to the contrary appearing, to get off when and where it (the train) stopped." McGee v. Railroad, 92 Mo. 208, cited 11 times in Missouri cases. (b) Slowing up a street car is an invitation to get on. Spencer v. Railroad, 111 Mo.App. 653. 5. Knowledge of imminent danger of the culvert. "The law presumes that the defendant's agents are familiar with the immediate physical surroundings of its tracks." Atkinson v. Railroad, 90 Mo.App. 489. 6. "The conductor's failure to warn and inform the passengers of the dangerous character of the surroundings (was) gross negligence." McGee v. Railroad, 92 Mo. 208; Griffith v. Railroad, 98 Mo. 168. (2) (a) The injury to the knee was the natural result of the severe injury to the thigh bone which forms part of the knee; and the stiffening of the knee, by the growth of fibres, while the thigh bone was mending, was the reasonable, natural, and necessary consequence of the injury to the thigh bone. (b) The proof of actual damages may extend to all facts which occur and grow out of the injury, even up to the day of the verdict. 2 Greenleaf, Ev., secs. 89 and 268a; 5 Ency. Pl. and Pr., 747, 748, 749; Brown v. Railroad, 99 Mo. 310. (c) The Missouri rule is that special damages must be stated in the petition with a reasonable degree of particularity; and it must be shown the damage is the natural, though not necessary, consequence of the wrong. Brown v. Railroad, 99 Mo. 310.
This is an action brought by the plaintiff for damages sustained by him in the city of St. Louis on the 18th day of September 1903. In the petition it is alleged that on the said 18th day of September, 1903, about eight o'clock p. m., and after dark, at or near the corner of Vandeventer avenue and Morgan street, the plaintiff became a passenger on one of defendant's street cars for a trip westwardly, and paid his fare; that plaintiff was a stranger in said city, and soon after entering the car requested the defendant's conductor to stop the car for him to alight at a station on defendant's said railway known as Clara Station, which was a regular stopping place for passengers to alight. It is alleged that it was the duty of the defendant's servant to carefully and safely carry the plaintiff to said Clara Avenue Station, and safely and without negligence land him and allow him to alight from said car at said station and for that purpose to stop said car at and opposite a platform of said station, and that when a car was stopped opposite said platform it was safe for passengers to get out of the same whether day or night, but that defendant's agents and servants negligently failed to stop said car at said Clara Avenue Station, but carried plaintiff one hundred feet beyond the same; that plaintiff on said trip was seated in said car and believing he was near said station, arose and walked to the rear platform, and after being there awhile, the conductor stopped said car and invited and directed plaintiff to alight at said point one hundred feet west of said Clara Avenue Station on defendant's right of way; that plaintiff thereupon alighted after dark upon defendant's right of way where said car stopped as aforesaid, and did not know and could not see where he was, but supposed he was at a point near the said platform, and plaintiff states that the place where he was invited, directed and permitted to alight from said car was an unsuitable and dangerous place after dark to land a person alighting there by reason of the fact that a person so getting off of said car could not proceed southwardly to the public streets by reason of fences and sheds along defendant's right of way, and northwardly there was a steep descent of about five feet from said railways embankment, and in a westwardly direction there was a dangerous ditch, sewer or culvert, crossing defendant's right of way about fifty feet distant; that defendant's agents on said occasion wantonly, and with gross negligence, gave him no warning that said culvert or ditch was near to the westward point where he alighted, and gave him no directions how to reach a place of safety, and with gross negligence failed to give him notice that he had passed Clara Avenue Station or that he had not landed in close proximity to the same; that after alighting, plaintiff looked back and could see no platform, there was no light at said Clara Avenue Station, and by the light of the rapidly receding car he caught a glimpse of a platform crossing defendant's tracks distant about fifty feet, which platform was similar in appearance to the platform crossing defendant's tracks at said Clara Avenue Station, and which said platform which he saw was over said sewer, ditch or culvert and extended about six inches southwardly of the south rail of the southernmost track of the defendant's railway and there ended abruptly. That said platform or crossing over said ditch or culvert was the nearest platform to the place where plaintiff alighted and being apparently the Clara Avenue Station platform, and plaintiff being unable by reason of the darkness to see his way, in attempting to continue his journey to a public highway on foot, walked on and along defendant's right of way to and upon said platform or crossing over said ditch, sewer or culvert and southwardly upon the same towards Cabanne avenue, which he was seeking, and fell off of the end of the said platform down a distance of about eighteen feet on to the ground and into said ditch, sewer or culvert, and was greatly and permanently injured, sustaining a double fracture of the right thigh bone between the knee and hip; three of his front teeth were driven inwardly, his face and hands cut and he sustained other cuts and wounds, and by reason of which he was obliged to lie constantly on his back for thirteen weeks, and was confined in a hospital for more than four months. That plaintiff had alighted prior to said occasion two or three times at said Clara Avenue Station. There is a platform crossing said defendant's tracks similar in appearance to the platform from which plaintiff fell as aforesaid, but which leads to steps descending about five feet or more to a walk upon which passengers can safely reach Cabanne avenue, which plaintiff was seeking to reach on the occasion aforesaid and plaintiff avers that in walking southwardly on said platform,...
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