Creason v. St. Louis, Iron Mountain & Southern Railway Company
| Decision Date | 07 July 1910 |
| Parties | R. H. CREASON, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Butler Circuit Court.--Hon. J. C. Sheppard, Judge.
AFFIRMED.
Judgment affirmed.
R. T Railey and N. A. Mozley for appellant.
(1) In order to justify a recovery for negligence, it must be shown that defendant owed a duty to protect plaintiff from the injury of which he complains; that the duty was not performed, and that the injury to plaintiff resulted from the failure to perform the duty. Shaw v. Goldman, 116 Mo.App. 332, 92 S.W. 165; Wheeler v. Railroad, 66 Mo.App. 260; Loehring v. Construction Co., 118 Mo.App. 163, 94 S.W. 747; Wencker v. Railroad, 169 Mo. 592, 70 S.W. 145; Coin v. Lounge Co., 222 Mo 488, 121 S.W. 1. (2) Respondent's proof wholly failed to establish the custom pleaded in the petition, or any custom. Johnson v. Parrott, 92 Mo.App. 199; Ehrlich v Insurance Co., 103 Mo. 231, 15 S.W. 530; Shields v. Railroad, 87 Mo.App. 637; Ober v. Carson, 62 Mo. 209; Martin v. Hall, 26 Mo. 386; 29 Am. and Eng. Ency. Law (2 Ed.), 365, 366; Percell v. Railroad, 126 Mo.App. 43, 103 S.W. 118. (3) Customs and usages must be strictly construed--nay, very strictly--even stricter than any act of parliament that alters the common law. Lawson on Usages & Customs, 108; Martin v. Milling Co., 49 Mo.App. 31. (4) Respondent's injury was due entirely to accident for which appellant is not responsible. Hite v. Railroad, 130 Mo. 132, 31 S.W. 262; Hysell v. Swift & Co., 78 Mo.App. 39; American Brewing Co. v. Talbot, 141 Mo. 674, 42 S.W. 679; Chandler v. Gas Co., 174 Mo. 321, 73 S.W. 502; O'Malley v. Railroad, 113 Mo. 319, 20 S.W. 1081; 2 White's P. I. on Railroad 592; Sawyer v. Railroad, 37 Mo. 240; Young v. Railroad, 93 Mo.App. 275. (5) Plaintiff was clearly guilty of contributory negligence and cannot recover. Maxey v. Railroad, 113 Mo. 1, 20 S.W. 656; Carroll v. Transit Co., 107 Mo. 653, 17 S.W. 891; Vogg v. Railroad, 138 Mo. 172, 36 S.W. 647.
Ernest A. Green for respondent.
(1) Appellant under all of the evidence in the case owed the respondent the duty to provide him with a reasonably safe means of ingress and egrees in, to and from the baggage car, and to provide reasonable safe doors and entrances thereto and therefrom; which duty it failed to perform, resulting in respondent's injury, for which he is entitled to recover. Thompson on Negligence (2 Ed.), sec. 422; Webster v. Railroad, 40 Hun. (N.Y.) 161, 115 N.Y. 112; Railroad v. Berg, 17 Ky. L. Rep. 616, 32 S.W. 616; Railroad v. Parsley, 6 Tex. Civ. App. 150, 25 S.W. 64; Railroad v. State, 72 Md. 36, 6 L.R.A. 706; 41 Am. and Eng. Railroad Cases, 126; 18 A. 1107; Jones v. Railroad, 43 Minn. 279, 44 N.W. 444; O'Donnell v. Railroad, 59 Pa. 239; Watson v. Railroad, 24 Upper Canada Q. B. 98; Carroll v. Railroad, 1 Duer (N.Y.) 571; Railroad v. Ball, 53 N.J.L. 283, 21 A. 1052; 2 White on Railroads, sec. 648; Wagoner v. Railroad, 118 Mo.App. 239, 94 S.W. 293; Dougherty v. Kansas City, 128 Mo. 33; Flynn v. Transit Co., 113 Mo.App. 185; Eichorn v. Railroad, 130 Mo. 575; Madden v. Railroad, 50 Mo.App. 666; Nissen v. Railroad, 19 Mo.App. 662; Nurse v. Railroad, 61 Mo.App. 67; Murphy v. Railroad, 43 Mo.App. 342; Seymour v. Railroad, 114 Mo. 266; 6 Cyc. 606; Gilroy v. Transit Co., 117 Mo.App. 668; McCarty v. Railroad, 105 Mo.App. 596; Goodloe v. Railroad, 120 Mo.App. 194; Sherman v. Railroad, 72 Mo. 62; Ahnefeld v. Railroad, 111 S.W. 95. (2) The verdict is not excessive, but is fully warranted by the evidence. Gibbs v. Light & Power Co., 125 S.W. 840; Baker v. Independence, 93 Mo.App. 165.
Action for personal injuries received by plaintiff by having a finger mashed while attempting to close the door of an express car of defendant's train. The facts out of which this action arose are substantially as follows:
Plaintiff boarded defendant's train at a flag station named Jordan. There being no depot or station agent at this station plaintiff after having boarded the train paid his fare to the auditor to Piedmont, and went forward to the baggage car for the purpose of informing the baggage agent to put his baggage off at Piedmont and to pay him for the excess. After having done this he started back to the passenger coach and in passing out of the baggage car he caught hold of the door knob on the car door and pulled it after him as he went out for the purpose of closing the door, and in doing so the second finger of his left hand caught between the door knob and the door casing and was mashed. There was a trial by jury, verdict for plaintiff for five hundred dollars, and defendant has appealed.
The errors assigned are the refusal of the court to sustain a demurrer to the testimony, error of the court in admitting testimony on the part of plaintiff, and error in giving and refusing instructions. The petition in this case alleged that it was the custom and requirement of the defendant that passengers having baggage put on at stations where there were no agents are required to go forward to the baggage coach to arrange about their baggage after having boarded the train. In order to prove that plaintiff had the right to go to the baggage coach for the purpose for which he did go, he and other witnesses were permitted to testify that such was the custom and practice of the company. Some of them testified that in passing over the same road, under similar circumstances, the conductor had told them to go to the baggage coach for the same purpose for which plaintiff went on this occasion. It is now contended by appellant that this testimony was inadmissible for the purpose of establishing a custom upon the part of defendant, and insists that the rigid rules relative to the manner in which customs are to be proven in the trial of cases should be applied to this case. We think this testimony was clearly admissible and whether it was sufficient to establish a custom, as that term is usually understood, we think it is sufficient to show that the company transacted that part of its business in that way. It was a part of the business of defendant to carry baggage belonging to its passengers and the passenger had the right to use whatever facilities the defendant had provided for their use in the transaction of their business with it. In this case plaintiff, having boarded the train at a flag station where there was no agent, the company had provided no way by which the plaintiff could attend to checking his baggage before it was loaded, neither did the company have any rule or provide any means by which the plaintiff was expected to have notified the baggage agent before the train started where he wanted his baggage put off, neither did they make any arrangements by which he could pay to the baggage agent the charges for the excess, if he had any, before the train started, and by not having made this provision and the evidence having shown that this plaintiff and other traveling salesmen had been permitted by the company to go to the baggage car while the train was in motion for the purpose of arranging about their baggage, we think it was sufficient to show that this was the means adopted by the company for transacting this class of business with its customers.
The next question arises as to whether defendant was negligent in its duty toward the plaintiff. Negligence is a relative term, and in order to show one guilty of actionable negligence it must first be shown that he owed some duty to another which he has failed to perform and that his failure resulted in injury to the other. [Shaw v. Goldman et al., 116 Mo.App. 332, 92 S.W. 165; Loehring v. Construction Co., 118 Mo.App. 163, 94 S.W. 747; Wencker v. M., K. & T. Ry. Co., 169 Mo. 592, 70 S.W. 145.]
It is contended by appellant in this case that plaintiff in going to the baggage car was a mere volunteer and at most a licensee, and that the company owed him no duty to keep the doors of the car in a reasonably safe condition for his use, and upon this proposition hinges this case. What we have said in regard to the admissibility of the testimony on behalf of plaintiff will apply with equal force to the question now under consideration. It seems from the testimony in this case that the plaintiff did the only thing he could do in order to have his baggage put off at the place of his destination. This being true, the defendant did owe to him the duty of seeing that the doors through which he was required to pass were reasonably safe.
It is contended by appellant that if all this be conceded, still the...
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