Craig v. Wabash R. Co.

• Citation: 142 Mo. App. 314,126 S.W. 771
• Parties: CRAIG v. WABASH R. CO.
• Decision Date: 07 March 1910
• Court: Court of Appeal of Missouri (US)

126 S.W. 771

142 Mo. App. 314

CRAIG v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

March 7, 1910.

Rehearing Denied April 4, 1910.

1. CARRIERS (§ 303) — ALIGHTING FROM CONVEYANCE — CARE REQUIRED.

A carrier is required to exercise the same degree of care for the passenger's safety while he is leaving its conveyance as is required while in transit; but the carrier is not the insurer of the safety of the passenger, who is held to exercise reasonable care for his own safety.

2. CARRIERS (§ 333) — ALIGHTING FROM CONVEYANCE — DUTY OF PASSENGER.

Generally a passenger, alighting from the conveyance of a carrier, should wait until such conveyance has come to a complete stop, or is moving so slowly as not to enhance the danger attending an attempt to alight.

3. CARRIERS (§ 321) — ALIGHTING FROM CONVEYANCE — THEORY OF CAUSE — INSTRUCTIONS.

Where a petition alleges that a carrier suddenly and negligently moved the train backward, whereby plaintiff, who was attempting to alight, was thrown and injured, and plaintiff's instructions based the negligence on the negligent starting of the train while in the act of alighting, it is not error to give defendant's instructions, placing the burden on plaintiff to prove that the trainmen suddenly and negligently jerked the train backward, since the petition and plaintiff's instructions based a cause of action on violent and negligent jerking, and not in merely starting the train.

Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Action by Robert C. Craig against the Wabash Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

W. A. Franken and Busby & Busby, for appellant. J. L. Minnis and Jones & Conkling, for respondent.

BROADDUS, P. J.

This is an action by plaintiff to recover damages for injuries he alleges he received as a passenger, as the result of defendant's negligence while he was in the act of getting off of one of its cars. On January 20, 1908, plaintiff took passage on defendant's train at Carrollton, Mo., for Miami. The train, when it reached the latter place, went beyond the usual stopping place at the station, and then stopped. After it stopped, plaintiff got up from his seat and went out upon the platform, preparatory to getting off. About this time the train started backward towards the usual stopping place. The plaintiff attempted to alight, fell, and was injured. The petition, after alleging the facts as stated, charges defendant's negligence to consist in the acts of "the servants and employés of defendant in charge of said train, without notice to plaintiff, and without giving plaintiff sufficient time to alight from said train, suddenly, negligently, and recklessly moved and jerked said train backward, whereby plaintiff, without fault on his part, was thrown to the platform with great force and violence, etc." The finding and judgment were for the defendant, and plaintiff appealed.

Several instructions were given by the court for each party. It is to the giving in behalf of defendant of instructions Nos. 2 and 3 plaintiff complains. These instructions place the burden upon plaintiff to prove, in order to recover, that the trainmen in charge while plaintiff was attempting to alight suddenly and negligently jerked said train backward, so as to throw him off the steps of the car. It is well-settled law that the carrier is required to exercise the same degree of care for the passenger's safety while he is leaving its conveyance as is required while he is in transit; that is the...