Eichorn v. Missouri, Kansas & Texas Railway Company

• Decision Date: 19 November 1895
• Parties: Eichorn v. The Missouri, Kansas & Texas Railway Company, Appellant
• Court: Missouri Supreme Court

32 S.W. 993

130 Mo. 575

Eichorn v. The Missouri, Kansas & Texas Railway Company, Appellant

Supreme Court of Missouri, Second Division

November 19, 1895

Appeal from Cooper Circuit Court. -- Hon. D. W. Shackleford, Judge.

Affirmed.

Jackson & Montgomery for appellant.

(1) The court erred in giving the plaintiff's instructions. First. They they did not correctly state the duty and liability of defendant. Second. They did not set forth the facts necessary to constitute contributory negligence. Moore v. Railroad, 29 S.W. 9. Third. They were inconsistent with the one given for defendant. Fourth. They were not warranted by the evidence. (2) The court erred in refusing defendant's instructions numbers 2, 3, 4, and 6. They correctly set forth the duties and liabilities of the parties, and presented to the jury the proper rule as to the effect of plaintiff's own conduct. (3) The evidence failed to establish any liability by defendant as charged in the petition and the first or peremptory instruction prayed by defendant should have been given. Defendant could select such place and make such arrangements as it wished for the accommodation of passengers. If they were insufficient, and anyone was injured in consequence thereof, he might recover but because he was dissatisfied with the provision made, he could not go to another place and then claim damages because defendant had not made that other place convenient and safe. Railroad v. Coleman, 28 Mich. 440; Railroad v Cavenesse, 48 Ark. 106; Graham v. Railroad, 39 F. 596; Sturgiss v. Railroad, 72 Mich. 619; Zoebisch v. Tarbell, 10 Allen, 385; Comley v Railroad, 12 A. 496; Drake v. Railroad, 137 Pa. St. 352; Bancroft v. Railroad, 97 Mass. 278; Eckerd v. Railroad, 70 Iowa 353.

J. R. Walker and Silver & Brown for respondent.

(1) It was defendant's duty to have a platform or other proper means of egress and access at its station of Harriston where plaintiff boarded the train, and its failure in the foregoing respects was negligence. Stafford v. Railroad, 22 Mo.App. 333; Railroad v. Vinson, 24 S.W. 956; McSloop v. Railroad, 59 F. 431; Railroad v. Wingate, 37 N.E. 274; Foy v. Railroad, 114 Eng. C. L. 225; Fullerton v. Fordyce, 121 Mo. 2. (2) The above principle is conceded in cases cited by the appellant's counsel in his brief, and can not be seriously questioned by him. Railroad v. Coleman, 28 Mich. 441; Drake v. Railroad, 137 Pa. St. 352. It is said in Raben v. Railroad, 74 Iowa 738, "the contract of the carrier is that he will carry the passenger safely and in a proper carriage, and afford him convenient and safe means for entering and alighting from the vehicle in which he carries him." (3) The plaintiff, when she received the injury complained of, occupied the relation of passenger to the defendant company. Schepers v. Union Depot Co., 29 S.W. 712; Smith v. Railroad, 32 Minn. 2; Thompson on Carriers of Passengers, pp. 42, 43. It is error for the court to instruct the jury what circumstances do or do not constitute ordinary care. Railroad v. Elliott, 98 Ill. 481. (4) Where the facts claimed to constitute negligence are disputed, or admit of different constructions or inferences, the question is one for the jury. Norton v. Ittner, 56 Mo. 351; Barry v. Railroad, 98 Mo. 62; Weber v. Railroad, 100 Mo. 195; Roddy v. Railroad, 104 Mo. 250; Lynch v. Railroad, 112 Mo. 421. And the same is true of contributory negligence. Church v. Railroad, 119 Mo. 214. The very fact of itself that the case is one for the jury necessarily disables the trial court from stating in its instructions what facts constitute contributory negligence. Railroad v. Elliott, 98 Ill. 481, supra. (5) Defendant's refused instructions were rightly refused. They ignored plaintiff's knowledge of the alleged requirement or habit for passengers to get on its train on the west side, etc. McDonald v. Railroad, 26 Iowa 125 (per Dillon, C. J.).

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is an action to recover damages resulting from personal injuries received by the plaintiff, a married woman, in attempting to board one of the defendant's passenger trains at Harriston Station on defendant's railroad, in Cooper county, Missouri, on February 19, 1892.

The petition alleges that on said nineteenth day of February and for a long time prior thereto the defendant had carelessly and negligently failed to construct and maintain any platform or provide any other means suitable and safe to enable passengers to get on and off the cars of the defendant at said station; that the plaintiff took passage on one of defendant's passenger trains at Harriston to go to Pilot Grove; "that plaintiff was at the time pregnant with child, and while getting aboard of the defendant's train as aforesaid, through the carelessness and negligence of the defendant, in not having any platform or other suitable and safe means for getting onto defendant's said passenger train, the plaintiff, without any fault on her part, slipped from one of the steps of one of the cars in defendant's said passenger train, and was strained and wounded in the spine, and the right side and right arm, leg and foot, by reason of which, etc.," to her damage in the sum of $ 10,000, for which she asked judgment. The answer was a general denial, and a plea of contributory negligence, to which the plaintiff replied in a general denial.

Upon the trial the plaintiff got a verdict and judgment for $ 3,000. Defendant having unsuccessfully moved for a new trial brings the case here by appeal.

At the trial the following facts were substantially established: The defendant had a station in Cooper county called Harriston, at which it had constructed a depot on the west side of its road. The point where the depot building stood at the station was low ground, and the depot was built on piles. Harriston is a small village of probably six or eight houses, all of which stand on the east side of the railroad, fronting on a street adjacent to and parallel with the right of way of the railroad. Some time in the month of September, 1891, this depot building was destroyed by fire. Thereafter the trains stopped at a point north of where the depot had stood originally, and at a place where a county road crossed the railroad track. At this point the evidence showed that it was from thirty inches to three feet from the ground to the lowest step on the passenger coaches.

Harriston was a regular station on the line of this railroad. Two of their passenger trains, the one going north at nearly noon, and the one going south at about 5 o'clock in the afternoon, stopped regularly to receive and discharge passengers. No platform or other means of any kind had been erected or provided by the railroad company to aid passengers in getting on and off its cars after the depot was burned. A small pine box had at one time been placed by one of the neighbors on the west side of the track that passengers might step on in order to get on and off the cars. Some time prior to the nineteenth day of February, 1892, the wife of the witness Nixon had stepped on this box in attempting to get on the train and had crushed it, and on the nineteenth day of February, and for some time prior thereto, this box had not been in use, and was not at the place. There was nothing in any way to designate the place for passengers to get on and off on either side of the road at that point. The county road crossed the railroad at this place. The ground on either side of the track was about the same, and it was apparently no safer to get on and off on one side of the track than the other, and the evidence tended strongly to show that, after the burning of the depot, passengers got on and off the train at this point on both sides of the road. The porters on the trains, when they would stop at Harriston station, would get down on either side and help passengers on from which ever side they might be standing, and would also help them off on either side.

On the nineteenth day of February, 1892, the plaintiff, Mrs Eichorn, in company with a neighbor lady, Mrs. Meisel, started to take the train at Harriston station for Pilot Grove, another station a few miles distant on the line of this road. This was about noon, and the regular passenger train stopped at the station. It was a damp and disagreeable day and the plaintiff and Mrs. Meisel waited in the plaintiff's house for the arrival of the train. They did not leave the house until the train had approached very near to the place where it usually stopped. They were hurrying toward that place when Mr. Sly, who was the postmaster, discovered them and thinking that they would be in danger of being hurt, if they tried to cross to the west side, signaled and called to them not to attempt to cross, but to remain on the east side. Mrs. Meisel, testified that it was their intention to cross over to the west side and there get on the train, and that they would have done so but for the warning of Mr. Sly, and the nearness of the train, and because they were late and did not think it safe to attempt to cross to the west side they remained and attempted to board the train from the east side. The plaintiff, however, testified that she did not intend to go over, or rather that she had not thought of that because she didn't like to get on the other (west) side, because there were always people in the blacksmith shop looking at the ladies get on the cars, and she preferred to get on from the east side so that her back would be toward those people. She admitted that it was a fact that she was late in getting out, but said that if she had wanted to have gotten up on the west side, she could have gone around the train after it stopped. Mrs. Meisel preceded the plaintiff into the car, and...