Hughes v. Chicago & Alton Railroad Company
| Decision Date | 12 March 1895 |
| Citation | 30 S.W. 127,127 Mo. 447 |
| Parties | Hughes v. The Chicago & Alton Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.
Affirmed.
Boyd & Murrell for appellant.
(1) The instructions given by the court at the instance of the plaintiff are illegal and improper. They ignore all evidence tending to prove negligence of the plaintiff, and virtually direct the jury to find for the plaintiff, regardless of whether or not he was guilty of negligence which was the proximate cause of his injury. See Thompson on Trials, sec 2328; Sheedy v. Streeter, 70 Mo. 684; Maxwell v Railroad, 85 Mo. 96; Sullivan v. Railroad, 88 Mo. 169; Dougherty v. Railroad, 97 Mo. 661; Owens v. Railroad, 95 Mo. 169. (2) The court erred in refusing the instructions asked by defendant, and in giving the first, second and third as amended by the court. Said instructions as asked correctly stated the law of the case. See Nelson v. Railroad, 68 Mo. 593; Yarnell v. Railroad, 75 Mo. 576; Swigert v Railroad, 75 Mo. 480; Rine v. Railroad, 88 Mo. 400; Jackson v. Railroad, 119 Mo. 13; Reardon v. Railroad, 114 Mo. 405. (3) The fourth instruction asked by the defendant and refused by the court, properly declared the law. See Whitaker's Smith on Neg., page 421; Thompson on Neg., pp. 1227, 1230.
Alf. F. Rector and Samuel Davis for respondent.
(1) Instructions 1, 2 and 3, given at the instance of plaintiff, properly declare the law of this case. The evidence shows that the relation of passenger and carrier existed between plaintiff and defendant at the time of the injury. Railroad v. Rector, 104, Ill. sec. 396; 2 Am. & Eng. Encyclopedia of Law, page 742, 744, and cases cited; Railroad v. Perry, 58 Ga. 467. (2) The defendant was bound to exercise greater care toward plaintiff than if he had been a mere trespasser or casual visitor on the depot platform. 2 Am. & Eng. Encyclopedia of Law, 745. (3) Plaintiff was where he had a right to be and where the servants of defendant in charge of the mail sacks knew people were likely to be found at that time. The throwing off of the mail sack at that place was a dangerous act and well known to be such by the person who threw the sack. Plaintiff did not know, and had no reason to apprehend, that the mail sack would be thrown off, or that there was any danger whatever in walking on the platform in the way he did, notwithstanding the approach of the train. Defendant is, therefore, liable for the acts of its servants, if they saw, or by the exercise of ordinary care, could have seen, plaintiff in time to have avoided the injury. In other words, the sack should not have been thrown off at all, unless the person who threw it actually knew that there was no one in a position to be struck and injured by it. Sargeant v. Railroad, 114 Mo. 348; Fiedler v. Railroad, 107 Mo. 645; Guenther v. Railroad, 108 Mo. 18; Lynch v. Railroad, 111 Mo. 601; Dobiecki v. Sharp, 88 N.Y. 203; Carpenter v. Railroad, 97 N.Y. 494; Snow v. Railroad, 136 Mass. 552. (4) "Negligence is not imputable to a person for failing to look out for danger when under the surrounding circumstances he had no reason to suspect any." Langan v. Railroad, 72 Mo. 392; Jennings v. Railroad, 112 Mo. 286. (5) Any error which may exist by reason of the failure of plaintiff's instructions to cover the whole case is cured by the instructions given for defendant, which submitted the question of contributory negligence to the jury in a much more favorable manner than the evidence warranted. (6) The court did not commit error in amending the defendants first, second and third instructions; the facts in this case bring it clearly within the purview of the rulings of this court in Guenther v. Railroad, 108 Mo. 18; Feidler v. Railroad, 107 Mo. 645; Lynch v. Railroad, 111 Mo. 601; Sullivan v. Railroad, 117 Mo. 214. (7) The fourth instruction asked by defendant was properly refused. A custom or usage can never be invoked to shield a party from negligence, nor to justify the doing of a dangerous act under circumstances where injury is likely to result. "A custom which is unreasonable or dangerous and productive of injury can not, in any degree, excuse an act done in conformity to it." Hill v. Railroad, 55 Maine, 438.
This is a suit for personal injuries to plaintiff, alleged to have been received by him while at defendant's depot platform in the city of Independence in this state. Defendant is a corporation operating a line of railroad from the city of Louisiana in Pike county, Missouri through the city of Independence to Kansas City.
The petition states in substance that on the nineteenth day of December, 1891, plaintiff, intending to become a passenger on one of defendant's trains, and having purchased a ticket for that purpose at defendant's depot, was awaiting the arrival of the train on which he desired to take passage, and that while walking on the platform in front of said depot, one of defendant's trains passed said depot running at a very rapid rate of speed, carrying heavy mail sacks made of leather and iron, one of which was, by the servants of defendant, negligently and carelessly thrown from the baggage car of said train and struck plaintiff, thereby breaking his leg and otherwise injuring him; and, further, that defendant, knowing of the danger attending the throwing off of said sacks to persons on its platform failed to notify plaintiff of said danger, and negligently failed to place on or near said platform any signal to warn persons of the danger of being on the platform when its trains were passing, or the fact that mail sacks would be thrown off at that time and place. The plaintiff was ignorant of the fact that mail sacks were to be thrown from said train and ignorant of the danger incurred by being on said platform at the time and place when he was struck, and plaintiff was thereby thrown off his guard, and prevented from taking the necessary steps to avoid injury, and that by reason of defendant's negligence plaintiff was greatly injured, etc. Defendant filed a general denial coupled with a plea of contributory negligence on part of plaintiff, to which the usual replication denying new matter contained in answer was filed.
The case was tried by a jury on instructions, and resulted in a verdict for plaintiff for $ 5,000. Facts were testified to tending to prove every phase of the case as presented by the instructions given by the court, and the only error assigned by appellant, asking a reversal of the judgment, is that the court gave improper instructions for plaintiff, and improperly modified instructions numbers 1, 2 and 3 asked by defendant, and in refusing instruction number 4 asked by defendant. As we understand the errors complained of, it will be unnecessary to give the facts of this case, but content ourselves by saying that testimony was offered tending to prove the allegations of both the petition and answer filed thereto.
The error alleged against the giving of instructions for plaintiff was, that they ignored all evidence tending to prove negligence on part of plaintiff and directed a finding for plaintiff on the facts alone as submitted by plaintiff, and that they singled out parts of the evidence not of themselves decisive of the case and directed a finding upon them alone for plaintiff.
While instruction number 1 given for plaintiff, which declares in effect "that if a mail sack was thrown from a rapidly moving train so as to strike plaintiff who was at defendant's depot as a passenger awaiting to take passage on one of its trains, and that when said sack was thrown or dropped from said train plaintiff was seen, or by the exercise of proper care and caution could have been seen by the person who threw or dropped said sack in time to have prevented the injury, then the dropping or throwing of said sack under such circumstances constituted negligence and the jury must find for pl...
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