Hardcastle v. Pullman Co.

• Decision Date: 03 October 1928
• Docket Number: 27124
• Parties: J. D. Hardcastle v. The Pullman Company, Appellant
• Court: Missouri Supreme Court

10 S.W.2d 933

320 Mo. 1239

J. D. Hardcastle v. The Pullman Company, Appellant

No. 27124

Supreme Court of Missouri

October 3, 1928

Motion for Rehearing Overruled November 16, 1928.

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed.

Lehmann & Lehmann for appellant.

(1) The peremptory instruction in the nature of a demurrer should have been given in behalf of the Pullman Company. It was under no duty to warn plaintiff of sleet on the station platform. 10 C. J. 910. This being true, it is unnecessary to consider whether or not Instruction 9 was erroneous. Waldman v. Const. Co., 289 Mo. 622. (2) Instruction 9 was correct, certainly, in so far as the Pullman Company was concerned. The only negligence as to it was failure to warn. There was no duty to warn if plaintiff could discover the ice in the exercise of ordinary care, and defendant's employees had a right to assume plaintiff would use ordinary care to observe sleet falling from the sky. Riska v Railway, 180 Mo. 168; Weller v. Railway, 164 Mo. 180. (3) Instruction 9 was correct as an abstract proposition of law and the giving of such an instruction even though improper under the pleadings, is not reversible error. Benjamin v. St. Ry. Co., 133 Mo. 274; Hemphill v. Kansas City, 100 Mo.App. 563. (4) The verdict is for the right party and should be sustained.

Koerner, Fahey & Young for respondent.

(1) It was error to give Instruction 9 on behalf of both defendants. Where there is no evidence of contributory negligence, the element of contributory negligence should be eliminated from the instructions. This is particularly true where contributory negligence was not pleaded as a defense and was not affirmatively shown by plaintiff's testimony. Cain v. Wintersteen, 144 Mo.App. 1; Ramp v. Railway Co., 133 Mo.App. 700; Kelly v. Stewart, 93 Mo.App. 47; Missouri Ry. Co. v. White, 22 Tex. Civ. App. 424; Fleming v. Railway Co., 101 Mo.App. 217; Rodick v. Railroad Co., 109 Mo. 530. (2) A carrier is not absolved from exercising this high degree of care merely because the passenger is not injured while in the very act of alighting or at the very spot or moment when he alighted. Gott v. Railways Co. (Mo.), 222 S.W. 827; Cossitt v. Railway Co., 224 Mo. 97; Payne v. Davis, 298 Mo. 645. (3) It was error to give instructions numbered 1 and 3 on behalf of both defendants. Although defendants may have been under no duty to provide a stepping box, yet, when they did so, the jury should have been allowed to consider their negligence in failing to provide a stepping box that would remain stationary and which was so constructed or equipped that it would not slip when stepped on by an alighting passenger. A carrier owes the same high degree of care to discharge a passenger at his destination in a safe manner and with safe appliances as is required for his safety while in transit. Missouri Ry. Co. v. Dunbar, 57 Tex. Civ. App. 411; Missouri Ry. Co. v. White, 22 Tex. Civ. App. 424; Scott v. Railroad Co., 150 La. 537; Missouri Railway Co. v. Wortham, 73 Tex. 25; Dougherty v. Railway, 123 Mo. 33. (4) It was error to give Instruction 6 on behalf of defendant. The jury should not have been told that the defendant had nothing to do with the station platform. This defendant having used a stepping box, it was its duty to determine that the part of the station platform on which it placed the box was not so dangerous that the box would slide when stepped on by an alighting passenger. Migge v. Railway Co., 75 Wash. 197; Missouri Ry. Co. v. White, 22 Tex. Civ. App. 424; Missouri Ry. Co. v. Dunbar, 57 Tex. Civ. App. 411; Southern Ry. Co. v. Reeves, 116 Ga. 743. (5) It was error to give Instruction 8 on behalf of defendant. The jury should have been allowed to consider the duty to place the stepping box securely on the platform. Even though plaintiff had been able to see the ice on the platform he had a right to assume that the box had been securely placed on the platform and that it would not slip, and it was the duty of the Pullman Company to so place it. Scott v. Railway Co., 150 La. 537; Haas v. Railroad Co., 128 Mo.App. 79; Missouri Ry. Co. v. White, 22 Tex. Civ. App. 424; Missouri Ry. Co. v. Wortham, 73 Tex. 25; Migge v. Railway Co., 75 Wash. 197.

OPINION

Atwood, P. J.

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 the 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, Missouri, for Tulsa, Oklahoma, 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 employees 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...