Fulks v. The St. Louis & San Francisco Railway Company

• Decision Date: 02 July 1892
• Parties: Fulks, Appellant, v. The St. Louis & San Francisco Railway Company
• Court: Missouri Supreme Court

19 S.W. 818

111 Mo. 335

Fulks, Appellant, v. The St. Louis & San Francisco Railway Company

Supreme Court of Missouri, First Division

July 2, 1892

Appeal from Jasper Circuit Court.

Reversed and remanded.

S. A Haseltine for appellant.

(1) The plaintiff had a ticket, was on defendant's premises and platform, ready to take its train which carried passengers. He was a passenger. Patterson on Railway Accident Law, pp 212, 213; 2 Wait's Actions & Defenses, 65; 2 Redfield on Railways, 303, note "c," and cases cited. (2) The plaintiff had the right to be treated by the defendant as a common carrier should treat its passengers. And defendant had no right to compel plaintiff to choose between the inconvenience of being left and lose his job, or take the hazard or risk, if any, of getting on its train kept slowly in motion. But the defendant, having compelled the plaintiff to choose, is responsible for the result of that choice. Thompson on Carriers, 229; 2 Wood on Railroad Law, 1131. (3) The plaintiff had a right to rely upon the orders and directions of the defendant's servants, who were in charge of their train, and supposed to know when it is safe to receive passengers. Defendant cannot order an act done and then claim it is contributory negligence to obey. Morrissey v. Ferry Co., 47 Mo. 521; Fortune v. Railroad, 10 Mo.App. 255; Burns v. Railroad, 50 Mo. 139; Fuller v. Railroad, 59 N.Y. 351; Burcher v. Railroad, 98 N.Y. 128; Wyatt v. Railroad, 62 Mo. 408; McGee v. Railroad, 92 Mo. 208-219; Tibby v. Railroad, 82 Mo. 292; McIntyre v. Railroad, 37 N.Y. 286; 2 Redfield on Railways, 278, and note, and cases cited; Thompson on Carriers, p. 227, and note 6, and cases cited. (4) The rule in regard to getting on and getting off a train in motion is the same. (It is sometimes as inconvenient to be left as it is to be carried past a station, and as great an injury to one's business. Plaintiff had to go or lose his job.) File v. Railroad, 49 N.Y. 47; Swigert v. Railroad, 75 Mo. 475; Price v. Railroad, 72 Mo. 414. (5) It is not negligence per se to attempt to get on a slowly moving train. 75 Mo. 475; 59 Mo. 27-37; 12 A. 821; 6 P. 587; 46 Tex. 356; 27 Wis. 158; 26 Mo.App. 336; 29 Mo. 495; 13 A. 387; 65 Ga. 746; 61 Md. 53; 55 Mo. 485; 53 Mo. 509; 72 Mo. 414. (6) If the plaintiff was guilty of negligence in attempting to get on the slowly moving train, he may recover if the defendant could have prevented the injury. 75 Mo. 475; 95 Mo. 232; 56 Mo. 338.

E. D. Kenna for respondent.

(1) The employes of defendant did not by their direction or advice negligently induce plaintiff to believe that it was safe for him to get upon the train while it was in motion. (2) The plaintiff was guilty of contributory negligence.

Black J. Barclay, J., absent.

OPINION

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 sidetrack to allow an east-bound 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 trainmen, 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 carwheel 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 is was going about as fast as a man would ordinarily walk. The train stopped after the caboose had passed three or four carlengths beyond the platform.

The trainmen 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 whiskey 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 whiskey. 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: "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.

"6. The court instructs the jury that the attempt of plaintiff to get upon a moving train was in itself negligence, and that the burden is upon the plaintiff to relieve himself of such imputation of negligence by showing that he had permission or was directed to do so from the employes of defendant in charge of the said train."

These instructions, it will be seen, assert in the most emphatic terms that it was negligence per se on the part of the plaintiff to get on the car while the train was moving, no matter how slowly it was moving, unless he was directed to do so by the men in charge of the train. The proposition of law thus asserted is in direct conflict with many cases decided by this court. To attempt to get on or off a train in rapid motion would be an act of gross negligence; but it is generally held that the courts will not, as a matter of law, declare a person guilty of contributory negligence who attempts to get on or off a train while it is moving slowly, especially at a platform. The question of contributory negligence in such cases is one of mixed law and fact, and should be determined by the jury, under the guide of proper instructions, in the light of all the attending circumstances. Such has been the repeated ruling of this and other courts. Doss v. Railroad, 59 Mo. 27; Swigert v. Railroad, 75 Mo. 475; Leslie v. Railroad, 88 Mo. 50; Clotworthy v. Railroad, 80 Mo. 220; Straus v. Railroad, 75 Mo. 185; Weber v. Railroad, 100 Mo. 194, 12 S.W. 804; Filer v. Railroad, 49 N.Y. 47; Bucher v. Railroad, 98 N.Y. 128; Johnson v. Railroad, 70 Pa. 357.

But it is said, the undisputed evidence shows that the trainmen warned the plaintiff not to get on the car while the train was moving, and that in view of this state of the case...