Jackson v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 28 February 1888
• Parties: MARIA JACKSON, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

29 Mo.App. 495

MARIA JACKSON, Respondent, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

February 28, 1888

APPEAL from the Jefferson Circuit Court, HON. JOHN L. THOMAS, Judge.

Affirmed.

GEO. H BENTON, for the appellant: Mrs. Jackson's conduct in attempting to leave the coach after she knew the train was again in motion, by passing to the outside and stepping off was prima-facie negligence directly contributing to the injuries complained of. Gavet v. Railroad, 16 Gray 501; Lucas v. Railroad, 6 Gray 64; Nelson v. Railroad, 68 Mo. 593; Railroad v. Aspel, 23 Pa.St. 147; Morrison v. Railroad, 56 N.Y. 302; Fleming v. Railroad, 49 Cal. 253; Railroad v. Whitfield, 44 Miss. 468; Railroad v. Hazzard, 26 Ill. 384; Filer v Railroad, 49 N.Y. 47; Railroad v. Letcher, 12 Am. & Eng. R'y Cases, 115; Harvey v. Railroad, 116 Mass. 269; Siner v. Railroad, L. R. 3 Ex. 150; Railroad v. Able, 59 Ill. 131; Railroad v. Duncan, 28 Ind. 441; Lambeth v. Railroad, 66 N.C. 494; Thompson, Carriers of Passengers, 252-269. The first instruction given for the plaintiff authorized the jury to find against the defendant, if its employes failed to use " " " " " extraordinary care, vigilance, and caution to set plaintiff off of said train in safety." This is not the law, and is contradictory to instructions given by the court. Lemon v. Chanslor, 68 Mo. 340; Strauss v. Railroad, 75 Mo. 190; Swigert v. Railroad, 75 Mo. 480; Clotworthy v. Railroad, 80 Mo. 220; Waller v. Railroad, 83 Mo. 616; Leslie v. Railroad, 88 Mo. 54; Handerlein v. Railroad, 3 Mo.App. 601; Gibson v. Railroad, 76 Mo. 282; Ashbrook v. Railroad, 18 Mo.App. 304. The second of plaintiff's instructions is also not the law, and is misleading. Tucker v. Hemmker, 41 N.H. 317; Railroad v. McCarty, 75 Ill. 602; Railroad v. McGuire, 78 Ill. 347; City of Wyandotte v. White, 13 Kan. 191. The instructions given by the court, on its own motion, are misleading and contradictory to those given for the plaintiff. The verdict of the jury is manifestly the result of sympathy for the plaintiff, or prejudice against the defendant. Spohn v. Railroad, 87 Mo. 74; Baker v. Stonebraker's Adm'r, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Herring v. Railroad, 57 Ill. 59; Reid v. Ins. Co., 58 Mo. 429; Campbell v. Hood, 6 Mo. 216; Carroll v. Paul, 16 Mo. 240.

DINNING & BYRNS, for the respondent: The instructions given declared the law as applicable to the facts and proof in this case, and tendered the whole issue to the jury. Leslie v. Railroad, 86 Mo. 50; Doss v. Railroad, 59 Mo. 27; Nelson v. Railroad, 68 Mo. 593; Straus v. Railroad, 75 Mo. 185; Kennedy v. Railroad, 36 Mo. 351; Huelsenkamp v. Railroad, 37 Mo. 546; Liddy v. Railroad, 40 Mo. 518; Swigert v. Railroad, 75 Mo. 475; Clotworthy v. Railroad, 80 Mo. 220. The defendant asked but one instruction, which was in the nature of a demurrer to plaintiff's evidence, and the court committed no error in refusing to give the same. Clotworthy v. Railroad, 80 Mo. 220; Kelly v. Railroad, 70 Mo. 604; Cook v. Railroad, 63 Mo. 398; Tutt v. Cloury, 62 Mo. 116; St. Vrain v. Columbia, 56 Mo. 590. If the defendant did not halt the train at Dock's station a sufficient length of time to enable the plaintiff, by the use of reasonable expedition, to get off before it was again started, and it was so started while the plaintiff was in the act of alighting, whereby she was thrown from the platform, or step, and injured, the defendant is unquestionably liable. Hutchinson on Carriers, sec. 612; Thompson's Carriers of Passengers, sec. 16, pp. 225 and 226; Straus v. Rail road, 75 Mo. 185; Hickman v. Railroad, 91 Mo. 433. If the defendant could have prevented the accident by the utmost human sagacity and foresight, it is liable. Thompson's Carriers of Passengers, sec. 4, pp. 200, 201; Railroad v. Aspell, 23 Pa.St. 147; Kennedy v. Railroad, 36 Mo. 351; Huelsenkamp v. Railroad, 37 Mo. 546, and cases cited; Spohn v. Railroad, 87 Mo. 74; Meyer v. Railroad, 40 Mo. 151.

OPINION

ROMBAUER J.

The plaintiff brought this action to recover damages for injuries to her person, by defendant's negligence, while a passenger on one of defendant's trains, and recovered judgment in the trial court. The recovery, considering the extent of the injuries, is moderate.

The negligence charged consists in the fact that the defendant's agents did not stop the train for a sufficient length of time to enable her to alight in safety at one of the regular stations for which plaintiff was a passenger, in consequence whereof the plaintiff, while attempting to alight, was precipitated to the ground by the sudden start of the train, receiving the injuries complained of.

The answer is a general denial and the plea of contributory negligence.

The errors complained of are the refusal of the court to sustain a demurrer to the evidence at the close of the plaintiff's case, and a similar demurrer at the close of all the evidence, and the giving of erroneous instructions at the request of plaintiff, and upon the court's own motion.

The plaintiff offered evidence tending to show that she was a passenger for Dock's station, one of the regular stations on defendant's road; that the train, upon arriving at the station, stopped only momentarily, and the plaintiff at once proceeded to walk out; that while she was thus engaged, and before she reached the door, the train began slowly to move, but she continued her way, believing that it would come to a full stop; that, instead of this, while she was on the step of the platform, there was a sudden jerk to the train, caused by its increasing its speed, which precipitated her to the ground. The plaintiff was corroborated in several important parts of her testimony by the testimony of disinterested witnesses.

The demurrer at the close of plaintiff's evidence was interposed on the theory that it appeared from her own testimony that she was guilty of contributory negligence. While it is held in some states that an attempt to alight from a moving train is in itself evidence of negligence, and debars plaintiff's recovery, our courts have uniformly held that whether or no it is such negligence as relieves the defendant from all responsibilities for the accident is a question of fact depending upon the circumstances of the particular case. As was said by Judge Napton, in Wyatt v. Railroad, 55 Mo. 491, " a review of the decisions would only show that each case depended very much on its own peculiar facts." " It is one thing," as Judge Woodward observes, in Railroad v. Kilgore, 32 Pa.St. 292, " to define a principle of law and a very different matter to apply it well, the rights and duties of the parties grow out of the circumstances in which they are placed." Thus in Lloyd v. Railroad, 53 Mo. 512, and in Straus v. Railroad, 75 Mo. 190, it was held that the attempt of a passenger to alight from a slowly moving train is not necessarily such negligence as to debar him of recovery, while in Nelson v. Railroad, 68 Mo. 576, it was held that to jump from a train moving at the rate of from five to ten miles an hour was such recklessness as to bar recovery as a matter of law.

Applying the decisions as we find them in this state to the facts of the case as shown by plaintiff's evidence, we must come to the conclusion that the court committed no error in refusing defendant's demurrer to the evidence at the close of plaintiff's testimony. The facts, as testified to by her and her witnesses, did not raise an unavoidable inference of contributory negligence.

If the plaintiff has thus made a prima-facie case, she was entitled at the close of the entire case to have the question submitted to the jury, whether such case was avoided by the testimony of the defendant or not. We so held in Boatmen's Savings Bank v. Overall, 16 Mo.App. 513, and our opinion was literally approved by the Supreme Court in affirming our decision. 90 Mo. 410.

Conceding, as defendant claims, that the great preponderance of evidence was in its favor, yet there was substantial evidence to support the plaintiff's case showing that the train did not halt for a sufficient length of time to enable her to alight with safety, and our disregarding such evidence, because outweighed by defendant's evidence, would be a clear usurpation of the province of the jury.

We have not hesitated to vacate a verdict under such circumstances where it was the evident result of prejudice or mistake. Friesz v. Fallon, 24...