Dunn v. Alton R. Co.

• Decision Date: 03 December 1935
• Docket Number: No. 23567.,23567.
• Citation: 88 S.W.2d 224
• Parties: DUNN v. ALTON R. CO.
• Court: Missouri Court of Appeals

88 S.W.2d 224

DUNN v. ALTON R. CO.

No. 23567.

St. Louis Court of Appeals. Missouri.

December 3, 1935.

Rehearing Denied December 17, 1935.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be published in State Reports."

Action by Robert B. Dunn against the Alton Railroad Company. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded.

Jones, Hocker, Gladney & Jones and Arnot L. Sheppard, all of St. Louis, for appellant.

N. Murry Edwards and Robert A. Harris, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, Robert B. Dunn, on June 1, 1932, when, according to his version of the facts, he was negligently thrown from one of the passenger trains of defendant, the Alton Railroad Company, as it was approaching its regular stopping point for the discharge of passengers at the relay station in East St. Louis, Ill. The verdict of the jury was for plaintiff for the sum of $5,000, and the appeal is by defendant from the judgment entered in conformity therewith.

The negligence set up in the petition and relied upon by plaintiff in the submission of the case was that before the train had arrived at the station, and while it was still in motion, defendant's employees in charge of the train opened the vestibule doors and caused the train to give such a sudden, violent, and unusual jerk as to cause plaintiff to fall or be thrown from one of the vestibules and be injured.

The answer was a general denial, coupled with a plea, first, that plaintiff had been guilty of contributory negligence, in that, while walking down the steps of the coach while the train was in motion, with the purpose and intention of alighting therefrom before the train had reached its regular stopping point, plaintiff had lost his hold and balance and had fallen from the train; and, second, that on the occasion in question plaintiff was obtaining and accepting free transportation from defendant through the use of a pass regularly issued to him, one of the conditions of which was that a person accepting and using the same thereby assumed all risk of injury to his person and damage to his property.

Plaintiff's reply to the answer was drawn in the conventional form.

At the time of his accident plaintiff had been in the employ of the Illinois Central Railroad Company for 36 consecutive years; having served as a conductor until some four or five months preceding his injury, when, because of a slackening in the railroad business, he had lost his position as conductor under the rules of seniority applicable to railroad employment, and had become a passenger flagman.

Plaintiff lived at 1115 Missouri avenue in East St. Louis, which was a convenient location for him during the time that he was employed as a conductor; his run then being from East St. Louis to Mounds, Ill. However, after he was demoted to flagman, he was assigned to a run from St. Louis, Mo., to Cairo, Ill., thus creating a situation which necessitated his crossing back and forth across the bridge connecting St. Louis and East St. Louis, as he either went to Union Station in St. Louis to commence his run, or else returned from Union Station to his home in East St. Louis after his run was completed.

When accepting the position as flagman on the run from St. Louis to Cairo, plaintiff complained to his trainmaster about the cost of his transportation across the bridge in reporting to and from work, and he was told by the trainmaster that a pass would be secured for him to save him such expense. The promise was in due time complied with; a free pass being obtained for plaintiff from the Terminal Railroad Association of St. Louis, upon the back of which pass appeared the usual condition that "the person accepting it and using it thereby assumes all risk of injury to person and damage to property."

Incidentally, it appears that the Terminal Railroad Association of St. Louis is, as its name implies, a corporation formed and designed to afford and control the terminal facilities of some 16 railroad companies doing business in and between St. Louis, Mo., and East St. Louis, Ill., each of such proprietary lines holding a certificate of ownership of a one-sixteenth interest in the association, and paying in turn a pro rata share of the expenses of the association computed upon the basis of the amount of business done over its facilities by each road. It further appears that among such proprietary lines were the Illinois Central Railroad Company, by which plaintiff was employed, and the Alton Railroad Company, whose trains made use of the association's tracks extending between Union Station in St. Louis and the relay station in East St. Louis, and upon one of whose trains plaintiff was riding when injured.

One of the principal issues in the trial of the case, though its value as a defense was largely destroyed by certain of the instructions given to the jury by the court, was whether or not plaintiff was riding on his pass on the occasion of his injury. His own testimony was that he had inadvertently and mistakenly left his pass with his wife when he had left home to report for his run, and that consequently he had been compelled to pay defendant's conductor a cash fare of about 30 cents for his passage across the river, while the conductor testified to a definite recollection that plaintiff had shown him his pass as he went through the coach collecting fares on the morning in question; that on that particular trip across the river he did not collect a single cash fare from St. Louis to East St. Louis; and that anyway the fare was 40 cents, and not 30 cents, as plaintiff had testified. Plaintiff had corroboration of the fact that his wife had retained possession of his pass on that particular occasion, while for defendant, the conductor's statement regarding plaintiff's use of his pass was supported by the testimony of a man who had been a passenger in the coach along with plaintiff and had happened to observe plaintiff's display of his pass to the conductor.

Even though he counted upon the payment of the cash fare on the trip in question, still in view, no doubt, of defendant's insistence to the contrary, plaintiff endeavored to rely upon the theory, and to show in support of it, that his pass had been given him under his contract of employment with the Illinois Central Railroad Company as a part of the consideration for his services; that defendant, the Alton Railroad Company, received a consideration for honoring said pass, in that the passes issued by the Terminal Railroad Association of St. Louis to defendant's employees were in turn honored by the Illinois Central Railroad Company; and that, consequently, by virtue of such reciprocal arrangement between the several companies, the condition printed on the back of his pass to the effect that by his acceptance and use of it he assumed all risk of injury was not valid and binding upon plaintiff.

The circumstances under which plaintiff received his pass from the Terminal Railroad Association of St. Louis have already been stated, and it would seem at once to appear that the issuance of such pass to him formed no part of the consideration for his services, the compensation for which, so far as this record shows, would have been the same to plaintiff as a flagman regardless of whether or not he had received the pass. In other words, there is no doubt but that the use of the pass effected a saving to plaintiff of the fares he would have otherwise been compelled to pay out in using defendant's trains in going to and from his work, but there was nothing to indicate that such saving was regarded as any part of his earnings or compensation from his employer, the Illinois Central Railroad Company. Rather, it appears that the pass was issued to plaintiff simply as a courtesy to which he was lawfully entitled as a railroad employee, and pursuant to a custom, though not an agreement, between carriers to issue passes to each other's employees upon a proper request therefor from the employing carrier, which passes, when once issued and accepted by the employees, were just as much available to them for use for purposes of pleasure or for matters purely personal as if and when used to secure transportation to or from the point where a run might either begin or terminate.

Plaintiff's run from St. Louis to Cairo and return was one which brought him into St. Louis every third day; his train being due to arrive at Union Station at 7:05 a. m. The first passenger train out of St. Louis crossing the river to East St. Louis after plaintiff came off of his run was one belonging to defendant, the Alton Railroad Company, which left Union Station at 7:30 a. m., and which, because of its convenient schedule, plaintiff usually took in returning to his home in East St. Louis. This was a local train for Chicago, going generally east until after passing the relay station in East St. Louis, and crossing Missouri avenue in East St. Louis at approximate right angles some 200 feet west of the relay station.

On the morning of June 1, 1932, plaintiff boarded defendant's train out of Union Station according to his usual custom, and took a seat in the combination coach, which seems to have been the second from the last car in the train. According to plaintiff's version of the facts, after the train had passed over the bridge, and after defendant's flagman had called out the East St. Louis station, plaintiff got up from his seat, and with his hand bag in his left hand walked back towards the rear door of the coach and out upon the platform, where he found the vestibule door already open in spite of the fact that the train had not yet arrived at the point where passengers were to alight. Just as he was opposite the open vestibule door, the train gave what plaintiff characterized as a severe, violent, and unusual jerk, causing him to lose his balance...