Johnson v. St. Louis & S.F.R. Co.

• Citation: 147 S.W. 529,164 Mo.App. 600
• Parties: MARSHALL C. JOHNSON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Decision Date: 01 April 1912
• Court: Court of Appeal of Missouri (US)

147 S.W. 529

164 Mo.App. 600

MARSHALL C. JOHNSON, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Springfield

April 1, 1912

Motion for Rehearing Denied June 3, 1912.

Appealed from Barton Circuit Court.--Hon. B. G. Thurman, Judge.

AFFIRMED.

Judgment affirmed.

W. F Evans and Mann, Johnson & Todd for appellant.

(1) Appellant was not an insurer of its employees and was only required to maintain the depot platform in a reasonably safe condition; the evidence in this case fails to show neglect of this duty on the part of the appellant. Hutchison on Carriers (2 ed.), sec. 521; 4 Elliott on Railroads, sec. 1590; Gunderman v. Railroad, 58 Mo.App. 370; Robertson v. Railroad, 152 Mo. 382; Joyce v. Railway, 219 Mo. 344; Tabler v. Railroad, 93 Mo. 79; Gattis v. Railroad, 153 Mo. 403; Goranson v. Mfg. Co., 186 Mo. 300; Epperson v. Cable Co., 155 Mo. 346; Minnier v. Railroad, 167 Mo. 99; Luceke v Graham, 123 Mo.App. 212; Lovell v. Railroad, 121 Mo.App. 466; Wendell v. Railroad, 100 Mo.App 566; Warren v. Independence, 153 Mo. 595. (2) Not only did the burden rest upon the plaintiff to affirmatively prove negligence on the part of defendant, but furthermore it rested upon him after proving that defendant was negligent to also prove that defendant's negligence was not only the cause but the proximate cause of his injury. Killion v. Railroad, 86 Mo.App. 473; Cooley on Torts, p. 69; Foley v. McMahan, 114 Mo.App. 442; Kappes v. Shoe Co., 116 Mo.App. 154; Jackson v. Elevator Co., 209 Mo. 506; Reedy v. Brewing Co., 161 Mo. 523; Banks v. Railroad, 40 Mo.App. 464; Waller v. Railroad, 59 Mo.App. 410. (3) Plaintiff testified that before he alighted from the moving train onto the platform he looked and saw that the platform was covered with a heavy frost and saw further that the train was running at a rate of from six to eight miles per hour. His alighting onto said platform under such circumstances amounted to contributory negligence on his part, which would prevent a recovery. Hurst v. Railroad, 163 Mo. 309; Roenfeldt v. Railroad, 180 Mo. 554; Payne v. Railroad, 136 Mo. 562; Kelsay v. Railroad, 129 Mo. 362; Mockowik v. Railroad, 196 Mo. 550; Murphy v. Railroad, 43 Mo.App. 342; Heaton v. Railroad, 65 Mo.App. 479. (4) If there was any substantial evidence that it was plaintiff's duty to get off the train and secure the train order he knew that it was the duty of the engineer to stop the train when the order was missed. Under this condition of facts he had the choice of a safe or unsafe means of performing his duties and when he voluntarily adopted an unsafe way he absolved the defendant from liability. Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 309. (5) Because plaintiff's injuries were the result of disobedience on his part of the printed rules of the defendant company prescribing his duties at the time and place of the injury, with which rule he admitted he was familiar, and for this reason plaintiff was not entitled to recover. Matthews v. Railroad, 227 Mo. 241; Schaub v. Railroad, 106 Mo. 74, 23 L.R.A. 768; Francis v. Railroad, 110 Mo. 387; Van Camp v. Railroad, 141 Mo.App. 344; Yongue v. Railroad, 133 Mo.App. 158. (6) The court erred in giving plaintiff's instruction No. 7, which told the jury that the plaintiff had a right to presume that the platform at the place where he alighted was in a reasonably safe condition for him to alight. Palmer v. Railroad, 142 Mo.App. 440; Reno v. Railroad, 180 Mo. 483; Nixon v. Railroad, 141 Mo. 439; Bragg v. Railroad, 192 Mo. 331.

Edwin L. Moore and Walter W. Calvin for respondent.

(1) It was the duty of the appellant to exercise reasonable care to render and maintain its said depot platform in a reasonably safe condition for respondent's use in the performance of his duties. Henry v. Railroad, 109 Mo. 488; Burdict v. Railroad, 123 Mo. 222; Hollenbeck v. Railroad, 141 Mo. 97; Young v. Waters-Pierce Oil Co., 185 Mo. 634; George v. Railroad, 225 Mo. 364; Lee v. Railroad, 112 Mo.App. 372; Garaci v. Construction Co., 124 Mo.App. 709; Brannock v. Railroad, 147 Mo.App. 301; Munro v. Railroad, 155 Mo.App. 710, 135 S.W. 1016; Armour & Co. v. Russell, 144 F. 614, 6 L.R.A. (N.S.) 602; Railroad v. Sanders, 11 Am. and Eng. R. R. Cases (N.S.), 862; Southerland v. Railroad, 43 F. 646; Jarvis v. Railroad, 128 Mich. 61; Babcock v. Railroad, 150 Mass. 457; Bogenschultz v. Smith, 84 Ky. 580; Railroad v. Vestal, 12 Am. and Eng. R. R. Cases (N.S.), 635; Wichter v. Railroad, 46 A. 740. (2) The defective condition of appellant's depot platform was the proximate cause of plaintiff's injury. Bassett v. St. Joseph, 53 Mo. 290; Waldheir v. Railroad, 87 Mo. 37; Brennan v. St. Louis, 92 Mo. 482; Dixon v. Railroad, 124 Mo. 140; Vogelsang v. St. Louis, 139 Mo. 127; Smith v. Fordyce, 190 Mo. 1; Musick v. Packing Co., 58 Mo.App. 322; Waters v. Kansas City, 94 Mo.App. 413; Kansas City v. McDonald, 60 Kas. 481, 57 P. 123; Wheeler v. Fort Dodge, 131 Ia. 566, 9 L.R.A. (N.S.) 146; Koch v. Williamsport, 195 Pa. 488, 46 A. 67; Moore v. Townsend, 76 Minn. 64, 78 N.W. 880; Clinton v. Revere, 195 Mass. 151, 80 N.E. 613; Cole v. Society, 124 F. 113, 63 L.R.A. 416; 15 Amer. Dig. Dec., sec. 51, 20 L.R.A. (N.S.) 739. (3) The demurrer to the evidence was properly overruled; and the facts as presented warranted the submission of the issues to the jury. Erickson v. Railroad, 171 Mo. 647; Campbell v. Railroad, 175 Mo. 161; Walker v. Railroad, 193 Mo. 482; Deschner v. Railroad, 200 Mo. 327. (4) Instruction No. 4 given on behalf of the plaintiff properly declared the law; but in no event can appellant complain of error, if any, therein, in view of the instructions asked and given on its behalf. Noble v. Blount, 77 Mo. 235; McGrew v. Railroad, 109 Mo. 582; Spillane v. Railroad, 111 Mo. 555; Burdoin v. Trenton, 116 Mo. 358; Meadows v. Insurance Co., 129 Mo. 76; Anderson v. Railway, 164 Mo. 411; Meiley v. Railroad, 215 Mo. 567; Blaydes v. Adams, 35 Mo.App. 526; Wallich v. Morgan, 39 Mo.App. 469; Pike v. Eddy, 53 Mo.App. 505; Nichol v. Paper Co., 95 Mo.App. 226; Knudsen v. La Crosse Co., 145 Wis. 393, 130 N.W. 519, 33 L.R.A. (N.S.) 223; 19 Am. Dig Dec., sec. 295. (5) Under all the evidence it was a question of fact as to whether or not appellant had in force such a rule as contended for upon the trial hereof, and also, whether or not respondent at the time of his injury was in the performance of his duties pursuant to his employment. Berry v. Railroad, 98 Mo. 62; Francis v. Railroad, 110 Mo. 387; Brady v. Railroad, 133 Mo.App. 141. (6) The question of appellant's negligence and respondent's contributory negligence, as well as all other questions, upon the material issues were properly submitted to the jury and under appropriate instructions; and no error, materially affecting the merits of this action, appearing those questions should remain conclusive upon appeal. R. S. 1909, sec. 2082; Barkley v. Assn., 153 Mo. 300; Jones v. Railroad, 178 Mo. 528; Peterson v. Transit Co., 199 Mo. 331; Mockowik v. Railroad, 196 Mo. 550; Stump v. Kopp, 201 Mo. 412; Berry v. Railroad, 214 593; Mann v. Doerr, 222 Mo. 1; Hannon v. Transit Co., 102 Mo.App. 216; Woody v. Railroad, 104 Mo.App. 678; Railroad v. Railroad, 110 Mo.App. 300; Caplain v. Transit Co., 114 Mo.App. 256; Cross v. Gould, 131 Mo.App. 585.

OPINION

GRAY, J.

This is an action for personal injuries suffered by plaintiff at Richland, this state, November 20, 1910. He was head brakeman on a freight train, consisting of thirteen cars and a caboose, running from Springfield to Newburg. As the train approached Richland about nine o'clock p. m. a signal was displayed at the station which indicated there was an order for the train. The signal displayed indicated that the character of the order did not necessarily require the train to stop, but the operator could deliver it to the crew as the train passed the station. The plaintiff was riding on the engine and as the train approached Richland, he stationed himself on the steps of the engine to receive the order as it was handed up by the operator. He failed to get the order as the train passed the depot, whereupon he jumped to the platform and in some way was thrown and severely injured by getting under the train.

The petition alleged the duty and negligence as follows: "That in the course of and as a part of plaintiff's duties, he was required, upon reaching a station where orders governing the movement of said train, were to be taken and received by the crew, to place himself on the steps of the engine cab, and in a place where he could, while said train was in motion, reach said orders as the same would be handed up to him by the telegraph operator, whose duty it was to deliver the same to him; and, in the event that plaintiff would fail to catch said orders from said operator and agent, and if for any reason, he would fail to obtain the same while in said position, then it became and was his duty, in the course of said employment, to immediately alight from said train, procure such orders as were to be delivered to him at said station, and then board said train and deliver the same to the engineer thereon.

"That on said November 20, 1910, and at about the hour of 9:35 p m., said train upon which plaintiff was working was passing eastward through the town of Richland, and, plaintiff, in order to receive the orders which were to be delivered to him at said station, had placed himself on the steps of the engine cab, on the north side thereof, and on the same side of said engine cab upon which the depot and platform were situated, but by reason of the fact that the operator, whose duty it was to prepare said orders for delivery to plaintiff, failed to have the same ready for delivery to him, and failed to...