Griffith v. Missouri Pac. Ry. Co.

• Decision Date: 20 May 1889
• Citation: 98 Mo. 168,11 S.W. 559
• Parties: GRIFFITH v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

11 S.W. 559

98 Mo. 168

GRIFFITH v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

May 20, 1889.

CARRIERS OF PASSENGERS — NEGLIGENCE — PLEADING — EVIDENCE — DAMAGES — APPEAL.

1. A petition alleged that defendant was a common carrier; that plaintiff shipped on its road two car-loads of cattle, paying the charges for the cattle and plaintiff; that it was necessary for plaintiff to accompany the cattle; that at C. defendant negligently side-tracked the cattle, without plaintiff's knowledge, and proceeded with the balance of the train and plaintiff; that on discovering the accident plaintiff was informed by the conductor that the cattle would come on the next section of the train, and suggested that plaintiff wait at a water-tank until the second section should arrive, which plaintiff did; that the cattle were not on the second section, but through defendant's negligence had been unloaded at C.; that the conductor of the train which plaintiff boarded at the water-tank told plaintiff that he would stop the train at a station at which there would be a train returning to C., which plaintiff could board. The petition then detailed the personal injuries sustained by plaintiff in so doing, and charged that they were caused by defendant's negligence in leaving the cattle at C., and in certain other matters relating to the time and place of receiving the injuries, and "that by reason of said injuries" plaintiff had sustained great bodily harm, etc., and had "been greatly pained in body and mind, and damaged in the sum," etc. Held that, while the petition contained much superfluous matter that might have been stricken out on motion, it stated but one cause of action.

2. At midnight the conductor said to plaintiff, "Here is your train," and, "Be quick, and get off." The train which plaintiff was to board was about 10 feet away, and moving, and, at the third step after alighting, plaintiff fell into an uncovered water-way between the tracks, and received the injuries complained of. The train stopped at a switch instead of the station, at which plaintiff was told the stop would be made. Held, that the proximate cause of the injury was the act of stopping near a dangerous place, and directing plaintiff to alight, knowing that it was not at the regular and presumably safe station where plaintiff expected to alight, without notifying him that it was a different or dangerous place, and without affording any means to discover or avoid the peril, and that this was gross negligence.

3. Under such circumstances, plaintiff's failure, by the light of a dim lantern of his own, to discover the water-way, is not evidence of contributory negligence.

4. Though there was no question as to the condition of the place where the injury occurred, and evidence in relation thereto might have been excluded, still the admission of such evidence could have no effect on the result; and under Rev. St. Mo. 1879, § 3775, as it could not affect the merits, is not ground for reversal.

5. Plaintiff was a strong active man, and managed a large farm. By his fall his leg was broken in two places, and he laid three months before getting up, and was unable to do anything, except on crutches, for a year. He suffered intense pain. The broken leg was afterwards shorter than the other, and the knee was stiff. The injuries were permanent, and materially interfered with his business. He was treated at defendant's hospital without expense for nine weeks. The jury were confined to compensatory damages. Held that, though damages assessed at $9,000 were large, yet passion, etc., could not be inferred from that, and there was no ground for reversal for excessive damages.

Appeal from circuit court, Henry county; JAMES B. GANTT, Judge.

Action by Wesley Griffith against the Missouri Pacific Railway Company. The amended petition states that defendant is a corporation, and is a common carrier of passengers and freight for hire, and at the time of the grievances complained of was operating a railroad from Montrose to East St. Louis. That on April 29, 1884, plaintiff shipped on defendant's road and cars two car-loads of cattle from Montrose to East St. Louis, paying therefor the charges demanded by defendant for transporting said stock and plaintiff to the destination aforesaid. That, for the purpose of looking after and attending to said stock, it was necessary for plaintiff to accompany the same, and plaintiff took passage upon defendant's freight train in which said cars of stock were shipped, for that purpose. That when the train arrived at Chamois the agents and servants in charge of the train, without plaintiff's knowledge, negligently detached the two cars containing plaintiff's cattle from the train, and switched them upon a side track at Chamois, and, without informing plaintiff of that fact, negligently proceeded with the balance of the train and with plaintiff towards the destination. That after the train had proceeded about 10 miles from Chamois plaintiff discovered that his cattle had been left at Chamois, and was thereupon informed by the conductor that they would probably come on the next section of the freight train, and the conductor suggested that plaintiff get off and wait at a certain water-tank, where both trains necessarily stop, until the second section should arrive; and plaintiff did, under the direction and at the suggestion of the conductor, get off at the water-tank, and awaited the arrival of the second section. That when the second section arrived plaintiff's cattle were not in said train, and plaintiff learned by telegraphing to Chamois after he had got on the second section that the cattle were still at Chamois, and had been unloaded through a mistake, and by and through the carelessness and negligence of defendant, and without any authority or knowledge of plaintiff. That the conductor in charge of the train which plaintiff boarded at the water-tank then told plaintiff that at Washington, a station further on, the train upon which plaintiff was would meet a train returning to Chamois, and that he would stop the train at Washington, so that plaintiff could get off that train, and get on to the returning train. That it was then in the night-time, and dark, and plaintiff, at the suggestion and under the direction of the conductor, proceeded with the train in the direction of Washington. That after the lapse of two or three hours the conductor woke plaintiff, he having in the mean time fallen asleep, and said, "Here is your train; get up quick, or you will miss it;" and the conductor hurried plaintiff, and directed him to get off of the train, and to get on the west-bound train. That the train on which plaintiff was on then stopped, and plaintiff supposed that the same had arrived at Washington. That the conductor negligently and carelessly failed to notify plaintiff that the train had not arrived at Washington, and negligently failed to inform plaintiff where the train was, or what the condition of the ground there was, though defendant well knew the same was a dangerous place. That on looking out plaintiff saw the train bound for Chamois standing on a side track immediately opposite, and about five or six feet from the caboose of the train in which plaintiff was then standing and had been riding. That it was so dark that plaintiff could not see whether there was a platform for him to alight upon, or what was the condition of the ground, but believing that he was at Washington, and that the ground was in such condition that he could safely alight and pass to the other train, plaintiff did alight, and attempted to walk to the returning train. That plaintiff in attempting to reach the train, and, when only a few...