Hendrick v. The Chicago & Alton Railroad Company
| Decision Date | 23 December 1896 |
| Parties | Hendrick, Appellant, v. The Chicago & Alton Railroad Company |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court. -- Hon. Reuben F. Roy, Judge.
Affirmed.
Fagg Ball & Hicks and Clark & Dempsey for appellant.
Respondent was in default in leaving boxes and other obstructions on the platform of the baggage car; appellant had the right to pass over this platform as the public are generally permitted to use the ends of such cars next to the passenger cars. He therefore made out a prima facie case and the issue should have been submitted to the jury. Dougherty v Railroad, 128 Mo. 33; Eichorn v. Railroad, 130 Mo. 575; O'Mellia v. Railroad, 115 Mo. 205.
W. H Morrow and N.W. Morrow for respondent.
(1) At the time of his injury appellant occupied to the company neither the relation of employee nor passenger. 4 Am. & Eng. Ency. of Law, p. 51; Barker v. Railroad, 98 Mo. 50. (2) One can not voluntarily place life and limb in peril and hold another responsible for his injury, when but for his own negligence he would not have been injured. "And if it appears, without any conflict of evidence from plaintiff's own case, that he was guilty of negligence proximately contributing to produce the injury, the court should take the case from the jury." Carroll v. Co., 107 Mo. 653; Weber v. Railroad, 100 Mo. 194; O'Malley v. Railroad, 113 Mo. 319. (3) Whether one is guilty of contributory negligence is usually a question of fact to be submitted to the jury, but where no other inference than that of his negligence can be fairly drawn from his evidence, it should be so declared as a matter of law. Corcoran v. Railroad, 105 Mo. 399. (4) The evidence in this case discloses no negligence on the part of respondent, and the demurrer was properly sustained. Smith v. Railroad, 113 Mo. 70. (5) Even if it were true that to have a box on the rear end of a baggage car is per se negligence, yet if the appellant's own negligence contributed directly to bring about his injury it is in legal contemplation a proximate cause of his injury, and if both the negligence of appellant and respondent are proximate causes of the injury, then appellant can not recover. Prewitt v. Eddy, 115 Mo. 304. (6) It has been several times held in this state that to climb over or between stationary cars even without knowing whether they are attached to an engine is such negligence as to preclude recovery for injuries so sustained. Bean v. Co., 50 Mo.App. 459.
After over a year's service in the employment of defendant company as fireman on a switch engine, plaintiff determined to quit the service and go to Chicago, and for that purpose procured from the company free transportation from Louisiana, Missouri, where he had been making his headquarters to that city and return. When he received his transportation he placed it in his trunk at his boarding house at Louisiana, and, for the time being, left it there.
On Friday before his injury he went from Louisiana to Bowling Green, Missouri, and remained there until about 1:55 Monday morning, when he boarded one of defendant's passenger trains for Louisiana, where he had to stop to get his transportation before proceeding to Chicago. He paid his fare from Bowling Green to Louisiana to the conductor on the train. When the train upon which he was a passenger arrived at the depot in Louisiana, about 2 o'clock that night, he alighted on the platform where passengers usually get on and off the cars. The railroad at this point runs about east and west, and when headed east, as on this occasion, the engine drawing the train and tender stand on a bridge over a small creek east of the depot. Plaintiff was perfectly familiar with the location of the road and the management of trains at this point, having worked in defendant's yards there for many months. Desiring to see the engineer on some private business of his own, after he got on the depot platform, he started east on the south side of the train to the engine where the engineer was, and finding the way obstructed by baggage and trucks on the platform, he turned back and passed over the platform at the front end of the smoking car to the north side of the train and again turned east toward the...
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