Haas v. St. Louis & S. F. R. Co.

• Citation: 106 S.W. 599,128 Mo. App. 79
• Court: Court of Appeal of Missouri (US)
• Decision Date: 17 December 1907
• Parties: HAAS v. ST. LOUIS & S. F. R. CO.

106 S.W. 599

128 Mo. A. 79

HAAS v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

December 17, 1907.

Rehearing Denied January 7, 1908.

1. DAMAGES—EARNING CAPACITY—EVIDENCE.

Where plaintiff, in an action against a carrier for injuries, was employed at a fixed salary, to be increased to the extent of 5 per cent. on all sales made during the year in excess of $25,000, evidence of what he made in previous years was inadmissible to show loss of earnings by reason of the accident, plaintiff being confined to proof of the amount of his salary lost on account of the injury, if any.

2. APPEAL—INSTRUCTIONS—HARMLESS ERROR.

Where a passenger claimed he was injured by falling from the icy steps of a car as he was about to alight, and there was no dispute that there was ice and sleet on the steps and platform at the time, defendant was not prejudiced by an instruction that, if the steps and platform were covered "with hard, uneven, lumpy, and

slippery sleet, snow, or ice," they were in a dangerous condition, because assuming that the steps and platform were dangerous in fact.

3. TRIAL — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS — ERROR CURED BY OTHER INSTRUCTION.

Where, in an action for injuries to a passenger by falling from a car because of the icy condition of the steps, defendant claimed contributory negligence in that plaintiff attempted to alight from the car with a handbag in one hand and an umbrella in the other, an instruction that it was the carrier's duty to use the utmost care to have the platform and steps of the car free of danger from ice, etc., and was liable if the carrier's agents or servants were negligent was erroneous, as ignoring the defense of contributory negligence, and was not cured by another instruction that, if the ice formed en route, it was not the duty of the carrier's employés to remove it after the train arrived at plaintiff's station before permitting passengers to alight.

4. CARRIERS—INJURIES TO PASSENGERS—NEGLIGENCE— INSTRUCTIONS.

A request to charge that, if a carrier's car platform and steps became icy en route, which caused plaintiff to fall therefrom as he was about to alight, the jury would not be authorized to find that defendant's employés were negligent in not removing or attempting to remove the ice after the train arrived at plaintiff's station before permitting passengers to alight, was properly refused, as conditions might arise under which it would be the carrier's duty en route to remove ice from the steps of its cars for the safety of passengers.

5. SAME.

A request to charge that carriers of passengers are not insurers, and are not required to keep up a continuous inspection of their appliances en route, and are not responsible for accidents resulting from agencies over which they have no control, such as storms en route, etc., and that, if the ice and snow accumulated on the car platform, which caused plaintiff to fall, en route, and was due to the weather prevailing, then the carrier was not negligent in failing to remove the ice and snow en route, or at destination before permitting passengers to alight, was properly refused, since, whether the carrier was bound to remove the snow and ice so accumulated, was dependent on the existing circumstances, and whether it was apparent to a reasonably prudent person that passengers could not get on or off the cars in the exercise of reasonable care without danger of falling, unless the platform and steps were cleared.

6. SAME—KIND OF EQUIPMENT — VESTIBULED CARS.

Where a passenger was injured by falling from the icy platform and steps of a railroad car, the carrier was not chargeable with negligence merely because vestibuled cars were not provided.

Appeal from Circuit Court, City of St. Louis; Jesse A. McDonald, Judge.

Action by William J. Haas against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

On February 4, 1905, at Arkansas City, in the state of Kansas, respondent took passage on one of appellant's passenger trains to be carried to Winfield, Kan., a distance of about 40 miles. The cars in the train were not of the vestibuled pattern, and the steps and platforms were covered with ice, and were in this condition when the train reached Winfield, where respondent, in the act of getting off the train, slipped on the platform, fell, and was injured. The action is to recover for the injury. The answer is a general denial and a plea of contributory negligence. Respondent's evidence tends to show that the weather at Arkansas City and Winfield on February 4th was clear and cold, the thermometer being below zero; that when he boarded the train the steps and platform of the car in which he traveled were covered with about three-fourths of an inch of snow and ice, frozen hard, which was rough and hard, and showed imprints of human footsteps; that he had an umbrella and handbag, which he held in his left hand when he started to leave the car, and "grabbed" the railing of the car with his right hand as he stepped on the platform, and, in stepping from the platform to the first step, his feet slipped from under him, broke his hold on the railing, and he fell out on the station platform. After falling he was taken to the Benton Hotel at Winfield and given attention. His shoe was cut off, and his ankle found to be swollen. He was unable to walk, and remained in Winfield about four days, during which time he received medical treatment, and was visited by a physician four times. After arriving in St. Louis he received medical attention, and was confined to the house about 10 days, commencing February, 1905, used crutches about 60 days, and thereafter used a cane about 30 days. Respondent's evidence also shows he was a salesman—a millinery drummer—and at the time of his injury was traveling in the employ of the Hanlon Millinery Company of St. Louis, Mo.; that his business when traveling was to solicit milliners to come to St. Louis and buy of his house, and to sell goods; that the spring season for the sale of millinery begins in St. Louis about February 20th, and continues for six or eight weeks; that he did not travel any more during the spring season of 1905, but met milliners and merchants coming to the city, took them to the store and showed them around, and continued in this kind of employment until the end of April, 1905; that while with the Hanlon Company he drew a salary of $125 per month. Dr. J. C. Lebrecht testified that he treated respondent the first time on the 19th of February, 1905, and saw him about twice a week for a month or six weeks; that pain continued throughout treatment, but after the first two weeks respondent visited witness at his office; that respondent suffered from a sprain or dislocation, and his bill was $50. Appellant's evidence tends to show that the train on which respondent was a passenger came from Vernon, Tex., and changed crews at Enid, Okl., and there was no ice or snow on the steps or...