Hardcastle v. Pullman Co.
| Decision Date | 03 October 1928 |
| Docket Number | No. 27124.,27124. |
| Citation | 10 S.W.2d 933 |
| Parties | HARDCASTLE v. PULLMAN CO. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Wm. H. Killoren, Judge.
Action by J. D. Hardcastle against the Pullman Company and another. A verdict was returned for defendants, and from judgment sustaining plaintiff's motion for a new trial, named defendant appeals. Affirmed.
Lehmann & Lehmann, of St. Louis, for appellant.
Koerner, Fahey & Young, of St. Louis, for respondent.
This is one of two separate appeals taken from an order granting plaintiff a new trial in the case of J. D. Hardcastle v. St. Louis-San Francisco Railway Company and Pullman Company.
The action was to recover damages for personal injuries alleged to have been sustained by plaintiff in alighting from a Pullman coach attached to a train of the St. Louis-San Francisco Railway Company. Plaintiff was alleged to have taken passage with defendants at St. Louis, Mo., for Tulsa, Okl., on or about January 1, 1924. It was further alleged that the train and coach on which plaintiff had taken passage arrived at defendant railway company's depot in Tulsa the next day; that defendants' agents and servants in charge of said train and coach opened the doors, placed a stepping box at the exit of said coach, and invited the passengers, including plaintiff, to alight therefrom; "that as plaintiff in alighting stepped upon said stepping box said stepping box moved, thereby causing plaintiff to fall, and in falling was injured." The grounds of negligence alleged were:
(1) "That defendants, their agents, servants, and employés allowed and permitted ice to accumulate on their station platform and in the immediate vicinity of the place where plaintiff undertook to alight and, further, permitted said ice to remain at said place and be present on said platform at the time passengers were allowed to alight from said train." (2) That they "failed to properly and sufficiently light the platform and steps of said train so that passengers, and more particularly this plaintiff, would be able to see and be advised as to the condition and situation and place where passengers were invited to alight from said coach." (3) That they "failed to warn plaintiff that there was present upon said platform and at the point where said stepping box was placed ice, which made the exit from said train and coach dangerous and unsafe." (4) That they "failed to provide a stepping box which would rest and remain stationary while passengers stepped upon same in alighting from said train and coach." (5) That they "failed to provide a stepping box which had on the under surface of same devices, or fittings, which would prevent the slipping or moving of said stepping box when passengers stepped upon same in alighting from said coach." And (6) that "when they knew, or by the exercise of a high degree of care could have known, that plaintiff carrying baggage in each hand was attempting to alight from said coach, failed to warn plaintiff of the danger incident to alighting from said coach under the circumstances and conditions above mentioned, and permitted said plaintiff to attempt to alight from said coach under said circumstances and conditions."
Defendants' answers were separate general denials.
On the evidence submitted by all parties and under the instructions given, the jury returned a verdict for defendants. Plaintiff's motion for a new trial was sustained "as against defendant, The Pullman Company, on the twelfth ground thereof, to wit, that the court had erred in giving instruction numbered 9 at the instance and request of said defendant." Instruction numbered 9 is as follows:
"The Court instructs the jury that it was the duty of plaintiff to exercise ordinary care, as defined in these instructions, for his own safety while alighting from the train in question, and if you find and believe from the evidence that by the exercise of ordinary care plaintiff could have discovered ice on the station platform mentioned in evidence at any time before he fell, if you find he did fall, and further find and believe that he failed to exercise such ordinary care, then he cannot recover against defendants St. Louis-San Francisco Railway Company and Pullman Company, and your verdict should be for said defendants."
By instructions 1, 2, 3, and 6 the trial court withdrew from the jury's consideration, as far as this appellant was concerned, plaintiff's first, second, fourth, and fifth grounds of negligence respectively, and submitted only plaintiff's third and sixth grounds pertaining to defendants' failure to warn.
Appellant's counsel first contend that it is unnecessary to consider whether or not instruction numbered 9 is erroneous because the peremptory instruction in the nature of a demurrer to the evidence, which was asked by the Pullman Company, should have been given. On a single reading of point 1 of their brief, this contention apparently rests on the view that appellant owed plaintiff no duty in any event to warn him of the presence of ice under the circumstances pleaded, for in that part of the brief it is said that appellant "was under no duty to warn pl...
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