Fulks v. St. Louis & S. F. Ry. Co.

Decision Date20 June 1892
Citation111 Mo. 335,19 S.W. 818
CourtMissouri Supreme Court
PartiesFULKS v. ST. LOUIS & S. F. RY. CO.

Action by David Fulks against the St. Louis & San Francisco Railway Company for personal injuries. Judgment for defendant. Plaintiff appeals. Reversed.

S. A. Haseltine, for appellant. E. D. Kenna, for respondent.

BLACK, J.

Plaintiff brought this suit to recover damages for injuries which he received while attempting to get on a freight train at a station called "Racine," intending to go to another station, called "Seneca." The petition is somewhat complicated in its averments, but we understand it to state these facts: That defendant undertook and attempted to take plaintiff on its train and carry him from Racine to Seneca, but did so negligently in this: that defendant negligently kept the train in motion while passing the station platform, and required him to get on while the same was in motion; that in making the attempt his foot slipped, and the motion of the cars threw him down. The answer is a general denial, and it then sets up negligence on the part of the plaintiff in this: that he negligently endeavored to get on the train while the same was in motion, and while it was in the act of stopping for the purpose of allowing him to get on, and that he refused to wait until the train could be stopped. The plaintiff was in the habit of going back and forth between the above-mentioned stations. This freight train was standing on a side track to allow an eastbound train to pass. Plaintiff says he started towards the caboose, intending to get on before the train backed out, but "they" told him to go back to the platform; that the train backed out on the main track, and when it started towards the platform he flagged it with his hat in his hand. Speaking of the train men, he says they said to him, "Get on," or "Go and get on;" that one of them motioned to him from the engine to get on, and a man on the front end with a cap on said, "Jump on." Another witness for the plaintiff says he was on the station platform with the plaintiff; that some one signaled the train to stop, and the engineer answered the signal; that some one from the engine called out to plaintiff to jump on. This witness says, "I think he told him as many as three times to jump on." As the train was passing the platform, the plaintiff took hold of the railing at the front end of the caboose, and made an effort to get on, but slipped and fell, and a car wheel passed over his foot, inflicting the injuries of which he complains. All the witnesses say the caboose was moving slowly as it passed the platform. One witness says it was going about as fast as a man would ordinarily walk. The train stopped after the caboose had passed three or four car lengths beyond the platform. The train men testified, on behalf of defendant, that they did not direct the plaintiff to get on. Some of them say the plaintiff was catching at the cars as they passed the platform, and they told him not to get on; that they would stop for him; that they picked him up, and put him in the caboose, after he was injured; that he had been drinking, and they found a bottle of corn whisky in his pocket. He is spoken of by some of the witnesses as an old man. He says, in the most positive terms, that he had not been drinking that day; that he was not in the habit of drinking, and that he never drank whisky. There is evidence that the reputation of one witness for plaintiff and one for defendant, for truth and veracity, was bad, and there is evidence that other witnesses for the defendant were men of bad moral character.

The plaintiff complains of the following instructions given at the request of the defendant: "No. 5. The court instructs the jury that if the defendant's servants in charge of the train did not give plaintiff permission or direct him to get upon it while it was moving, then his attempt to do so was negligence, no matter how slowly it was moving, and you will find for the defendant. No. 6. The court...

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28 cases
  • Carney v. Railway Co.
    • United States
    • Missouri Supreme Court
    • July 30, 1929
    ...is an affirmative one, and the burden rests on defendant to prove it. This burden never rests on plaintiff. 29 Cyc. 601; Fulks v. Railway, 111 Mo. 335; Crumpley v. Railroad Co., 111 Mo. 152; Mitchel v. Clinton, 99 Mo. 153; O'Conner v. Railway, 94 Mo. 150; Donovan v. Railroad Co., 89 Mo. 147......
  • Carney v. Chicago, R.I. & P. Ry. Co.
    • United States
    • Missouri Supreme Court
    • July 30, 1929
    ... ... burden rests on defendant to prove it. This burden never ... rests on plaintiff. 29 Cyc. 601; Fulks v. Railway, ... 111 Mo. 335; Crumpley v. Railroad Co., 111 Mo. 152; ... Mitchel v. Clinton, 99 Mo. 153; O'Conner v ... Railway, 94 Mo ... unconstitutionality of a law, must be brought in at the first ... open door under the orderly procedure in the case. [Lohmeyer ... v. St. Louis Cordage Co., 214 Mo. 685.] If the cause of ... action be founded upon a pleaded ordinance, the answer would ... be the first open door. If the ... ...
  • State ex rel. Thompson v. Shain
    • United States
    • Missouri Supreme Court
    • July 28, 1942
    ... ... decisions of this court: State ex rel. v. Hostetter, ... Powell Bros. Truck Lines, 345 Mo. 915, 137 S.W.2d 346; ... Seithel v. St. Louis Dairy Co., 300 S.W. 280; ... Henderson v. St. L.-S. F. Ry. Co., 284 S.W. 788 ...           Crouch & Crouch, Cowgill & Popham and Sam ... Buesching v. St. Louis Gaslight Co., 73 ... Mo. 219, 39 Am. Rep. 503; Mitchell v. City of ... Clinton, 99 Mo. 153, 12 S.W. 793; Fulks v. St ... Louis-S. F. Ry. Co., 111 Mo. 335, 19 S.W. 818. (3) No ... evidence introduced by defendants can convict deceased of ... contributory ... ...
  • Hibbler v. Kansas City Railways Co.
    • United States
    • Missouri Supreme Court
    • February 9, 1922
    ... ... negligent in extending such invitation if to act upon it ... would be dangerous to passengers. [Loyd v. Railroad, ... 53 Mo. 509; Fulks v. Ry. Co., 111 Mo. 341, 19 S.W ... 818; Wyatt v. Railway Co., 62 Mo. 410; Kelly v ... Railroad, 70 Mo. 608.] ...          Here ... our jurisprudence down to the Hall Case, 260 Mo. 351, in ... which, quoting from Graves, J., in Moore v. St. Louis ... Transit Co., 226 Mo. 710, 126 S.W. 1013, in emphasizing ... the inadmissibility of testimony of the character of that ... under review, we ... ...
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