Gurley v. Missouri Pac. Ry. Co.

• Decision Date: 19 December 1887
• Citation: 93 Mo. 445,6 S.W. 218
• Parties: GURLEY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

6 S.W. 218

93 Mo. 445

GURLEY v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

December 19, 1887.

1. RAILROAD COMPANIES — LIABILITY FOR NEGLIGENCE — ACCIDENTS AT CROSSINGS — PLEADING AND PROOF.

In an action against a railway company for personal injuries, the petition stated that the defendant was accustomed to leave cars standing on a side track crossed by a sidewalk leading from the depot to the town; that the cars were separated enough to allow people to pass through; that while plaintiff was crossing the track on the sidewalk between the cars, through the negligence of defendant's servants a loose car was driven against the cars standing on the north of the sidewalk, forcing them against those on the south, whereby plaintiff was injured. The testimony of plaintiff showed that, before crossing the track, he had looked up and down, and could see no engine or no cars moving, and even no employes of the defendant about the side track. Other testimony showed that no engine had been near the side track for many hours. Held that, under this variance between the allegations in the petition and the proof, a demurrer to the evidence should have been sustained.

2. SAME.

And in such case, an instruction which permits a recovery if the jury should find that the plaintiff was, by reason of the negligence of defendant's servants, caught between the cars and injured, without restricting the negligence to that alleged in the petition, was bad, and was erroneously given.

Appeal from circuit court, Cass county; NOAH M. GIVAN, Judge.

This was an action for damages for personal injuries, brought by Horace M. Gurley against the Missouri Pacific Railway Company. Judgment was for plaintiff, and defendant appealed.

A. Comingo and Whitsett & Jarrott, for plaintiff. T. J. Portis and Adams & Bowles, for defendant.

BLACK, J.

Plaintiff recovered a judgment against the defendant for $10,000 damages for personal injuries. The grounds of the defendant's complaint are — First, the refusal of the court to sustain a demurrer to the plaintiff's evidence; second, the giving of plaintiff's first instruction; third, excessive damages. Twelve or fifteen years ago defendant constructed a plank walk from its depot at Pleasant Hill to the Planters' House at that place. The walk was then intended to accommodate passengers in going to and from the dining-room at that hotel. It has at all times since been used by the public in going to and from the depot. Between the Planters' House and the depot, the walk crosses a side or house track, which is habitually used by the defendant for standing or storing cars. On the twenty-second January, 1885, a number of cars were standing on this track, six or seven to the north, and others to the south, of the crossing. They were detached at the walk so as to leave an open space of three or four feet for persons to pass through. The petition sets out the foregoing facts, and then states that, while attempting to use the crossing, and by reason of the negligence of the defendant's servants, plaintiff was, "suddenly and in the manner hereinafter stated," caught between said cars; "that at the time he approached said crossing as aforesaid he attempted to pass through the opening between the cars stationed on either hand thereof as aforesaid; that just as he entered said opening, defendant, by its agents, servants, and employes, unskillfully, negligently, and carelessly, and with great violence, drove and forced on or against the said stationary cars, on the north-easterly end of said side track, certain loose cars, or a loose car, whereby said stationary cars were driven on and against plaintiff and he was crushed and mangled between them and the other of said stationary cars, and received the irreparable injuries aforesaid."

The evidence shows that these cars were in the position before described during the day, and that various persons had passed between them on the walk. About 7 or 8 o'clock in the evening plaintiff started from the Planters' House to the depot, intending to post a letter on the mail train. He says when he got to the crossing he stopped and looked both ways, but could see no engine or moving train. The instant he stepped between the cars those to the north suddenly moved to the south and caught him as the cars came together. He received injuries to his leg which are serious and permanent. He states that when he approached the cars they appeared to be still; that it was light, and that he saw...