Gress v. The Missouri Pacific Railway Company
| Decision Date | 28 November 1904 |
| Citation | 84 S.W. 122,109 Mo.App. 716 |
| Parties | MICHAEL GRESS, Respondent, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Moniteau Circuit Court.--Hon. James E. Hazell, Judge.
AFFIRMED.
Judgment affirmed.
W. S Shirk for appellant.
(1) There can be no doubt but that the plaintiff in jumping off of the train under the circumstances shown by the plaintiff's own evidence, was guilty of such a careless and reckless act as precludes a recovery by him for his injury. Murphy v. Railroad, 43 Mo.App. 354; Heaton v. Railroad, 65 Mo.App. 479; Nelson v Railroad, 68 Mo. 593; Hunter v. Railroad, 126 N.Y. 18; Kelly v. Railroad, 70 Mo. 604; Fulks v Railroad, 111 Mo. 335; Railroad v. Rosenberry, 45 Ark. 256. The peremptory instruction prayed by the defendant at the close of the whole case should have been given. Weber v. Railroad, 100 Mo. 206; Eberly v. Railroad, 96 Mo. 361; Glover v. Bolt, 153 Mo. 343. (3) "To attempt to get on or off a train in rapid motion would be an act of gross negligence." Judge Black in Fulks v. Railroad, 111 Mo. 340; Kelly v. Railroad, 70 Mo. 608; Nelson v. Railroad, 68 Mo. 596; Dora v. Railroad, 59 Mo. 38; Colworthy v. Railroad, 80 Mo. 223; Murphy v. Railroad, 43 Mo.App. 354. (4) The plaintiff was old, feeble and rheumatic. "A young, healthy and vigorous man may assume risks which would be culpable negligence in another of feeble or protracted age." Doss v. Railroad, 59 Mo. 38; Shearman & Redfield on Neg., c. 30; Filer v. Railroad, 49 N.Y. 47.
This is an action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. Under the pleadings the issues which the court was required to determine were (1), whether or not the defendant negligently failed to stop its train at its station for a sufficient length of time to enable the plaintiff with safety to leave it; (2), if it--the defendant--did not so stop whether or not the plaintiff was in consequence thereof injured; and (3), if he was so injured, then whether or not he was himself guilty of contributory negligence. The cause was tried to a jury. At the conclusion of the evidence the defendant interposed a demurrer thereto which was by the court denied.
An examination of the record has convinced us that the evidence introduced was sufficient to entitle the plaintiff to go to the jury on the first issue--that is to say, that of defendant's negligence. It appears that the plaintiff--a man nearly eighty years of age actively engaged in farming--was a passenger on the defendant's train which consisted of the engine and three cars; that the plaintiff paid his fare from Chamois to St. Aubert, the latter station being some five miles west of the former; that there was something like a half dozen passengers on the train and that it was behind time; that when the train reached the platform of the St. Aubert station it did not stand still more than about five seconds, whereas it customarily stopped there from one to two minutes--or something like that--depending on the number of passengers there leaving or entering its cars; that the plaintiff and two other passengers were riding in the smoking or forward passenger car and when it came to a stop at the station they got up from their seats which were very near the front door and started to go out of that door, and by the time they reached the platform the car was again in motion; that the two passengers who had occupied seats near plaintiff preceded him in making their exit; that they jumped from the platform and the plaintiff in endeavoring to do so fell to the ground where one of his feet was caught under the moving cars and crushed; and that amputation became necessary so that the injury resulted in the loss of his leg. When the train stopped the conductor was on the rear platform of the smoking car and it was from there that he gave the signal to the engineer to start; that he was in full view of the platform of the station from the time the train stopped until it started and could have seen, had he looked, that the plaintiff was not among the few people on the platform when he gave the signal to start; that it was in the broad light of day when the accident happened and he either saw, or could have seen, if he had chosen to look, that the plaintiff was still on the platform at the other end of the smoking car endeavoring to alight; and notwithstanding this, he gave the signal and thereby started the train. There was other evidence introduced which had a tendency to prove that the time the train stopped was unusually short and wholly insufficient to allow its passengers acting expeditiously to leave its cars before it again started.
It is needless to say that it was the duty of the defendant to stop the train at its station long enough to allow passengers acting expeditiously to leave it in safety. [Richmond v. Railroad, 49 Mo.App. 104, and authorities there cited.] And we think the evidence here tends to show a most palpable neglect of this duty for the injurious consequences of which there ought to be liability.
Respecting the issue as to whether or not the defendant's charge that plaintiff was guilty of contributory negligence is well grounded, it...
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