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

• Citation: 130 S.W. 413,150 Mo. App. 304
• Parties: JOHNSTON v. ST. LOUIS & S. F. R. CO.
• Decision Date: 12 July 1910
• Court: Court of Appeal of Missouri (US)

130 S.W. 413

150 Mo. App. 304

JOHNSTON v. ST. LOUIS & S. F. R. CO.

St. Louis Court of Appeals. Missouri.

July 12, 1910.

1. CARRIERS (§ 290)—CARRIAGE OF PASSENGERS —CARE REQUIRED—SAFETY OF VESTIBULED TRAINS.

While railroad companies need not provide vestibuled trains for passengers, if they do, they must exercise high care to keep them reasonably safe, and must exercise high care to keep the doors closed and traps on the platform in place while en route, and a passenger, without knowledge to the contrary, may conduct himself as though it had fully performed such duty.

2. EVIDENCE (§ 77)—PRESUMPTIONS—EVIDENCE WITHHELD.

In an action for death of a passenger who fell through the door of an open vestibule on the car in which he was riding, the fact that the porter, whose duty it was to see that the doors were closed, was not called as a witness raises a strong presumption that his testimony would not have been favorable to defendant.

3. CARRIERS (§ 318)—ACTION FOR DEATH OF PASSENGER—EVIDENCE—SUFFICIENCY— NEGLIGENCE—PROXIMATE CAUSE.

In an action for death of a passenger who fell through the door of an open vestibule on the car in which he was riding, evidence held to show negligence in permitting the door to remain open, and that such negligence was the proximate cause of the injuries resulting in his death.

4. NEGLIGENCE (§ 134)—EVIDENCE—SUFFICIENCY.

Where the inference of negligence from other facts is relied on, such inference must be more consistent with the negligence of defendant as the cause of the injury, than with some cause for which it is not responsible; but it

need not be inconsistent with any other hypothesis.

5. NEGLIGENCE (§ 134)—EVIDENCE—PROXIMATE CAUSE OF INJURY.

To prove that defendant's negligence was the proximate cause of the injury, it is not necessary to produce eyewitnesses in every instance, but the circumstances of the situation are sufficient, if they fairly suggest that defendant's negligence operated proximately to produce the hurt, according to the known experience of men in such matters.

6. EVIDENCE (§ 59)—PRESUMPTIONS—LOVE OF LIFE AND AVOIDANCE OF DANGER.

There is no presumption of suicide, the natural instinct to avoid injury and preserve life being of itself an element of evidence to the contrary; the presumption being, in the absence of evidence, that every person exercises ordinary care for his own safety.

7. DEATH (§ 104)—ACTION—TRIAL—INSTRUCTIONS AS TO DAMAGES.

In an action by a wife for death of her husband, an instruction supported by evidence told the jury that in assessing damages, they might consider his age, his probable expectancy of life, his occupation, ability to labor, and accustomed earnings prior to his death, and it was objected that it did not inform the jury that plaintiff's measure of damages was what would reasonably compensate her for the loss by her husband's death. Another instruction, however, told the jury that they might allow her not less than $2,000 and not more than $10,000, as it believed from the evidence would reasonably compensate her. Held, that the instruction objected to only directed the jury to certain proper elements of damage without saying that the whole amount might be awarded to plaintiff, and that the two instructions considered together were sufficient.

8. TRIAL (§ 256)—INSTRUCTIONS—REQUESTS— NECESSITY.

If a party desires further limitations as to a matter covered by proper instructions, it should make a request to the court to that effect.

9. TRIAL (§ 296)—INSTRUCTIONS—CONSTRUCTION AS A WHOLE.

The fact that an instruction authorizing a recovery for negligence omits to require the jury to find that the injured person was not negligent for his own safety is not error, provided that question was properly submitted in other instructions.

10. TRIAL (§ 296)—INSTRUCTIONS—CONSTRUCTION AS A WHOLE.

In an action for death of a passenger who fell at night through the door of an open vestibule on the car in which he was riding, the court instructed that to find for plaintiff, the jury must find defendant's negligence in leaving the door open was the proximate cause of decedent's injuries and consequent death, and that if the fall and his consequent death was the natural and probable result of defendant's negligence, and the injuries would not have been received but for that, such negligence was the proximate cause of the injuries. Defendant objected on the ground that it stated that the open door was the proximate cause of the injury, notwithstanding contributory negligence based on evidence of lights burning in the vestibule. On this question the court instructed that though the train on which decedent was riding was a vestibule train, and the doors were open at time of the accident, yet if there was light therein sufficient to enable him by exercise of ordinary care to see that the doors were open and the danger was apparent to him, plaintiff could not recover, though deceased fell through the open door. Held, that the latter instruction was more favorable to defendant than the law warranted, and gave it the full benefit of the testimony as to such light, and it had no ground for complaint.

11. CARRIERS (§ 331)—DEATH OF PASSENGER —CONTRIBUTORY NEGLIGENCE.

In an action for death of a passenger who fell through the door of an open vestibule on the car in which he was riding, the mere fact that the danger was apparent or that he knew of it is not of itself sufficient to authorize a verdict for defendant on the score of contributory negligence, unless he omitted to conduct himself with that degree of care usually exercised by an ordinarily prudent person in the same circumstances.

Appeal from Circuit Court, Franklin County; R. S. Ryors, Judge.

Suit by Josephine Johnston against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. F. Evans and Mann & Todd, for appellant. Silver & Dumm and J. W. Booth, for respondent.

NORTONI, J.

This is a suit for damages under the wrongful death statute. Plaintiff recovered, and defendant prosecutes the appeal.

It appears plaintiff's husband was a passenger on defendant's train en route from Wichita, Kan., to Crocker, Mo., and came to his death by falling through the door of an open vestibule on the car in which he was riding. The principal argument on appeal relates to the sufficiency of the proof made with respect to the negligence of defendant and the proximate cause of the injuries. The relevant facts pertaining to these matters are that plaintiff's husband in company with his companion, Dixon, took passage on defendant's passengers train at Wichita, Kan., about 1:30 in the afternoon, for Crocker, Mo. The two passengers rode together in a seat of the smoking car all of the afternoon and until immediately before plaintiff's husband fell from the train, about three miles west of Pierce City, Mo. Deceased fell from the train somewhere about 9:30 o'clock at night. It is in evidence that plaintiff's husband and Dixon were riding together in the seat on the north side and at the west end of the smoker when, about nine o'clock, Dixon removed therefrom to seats immediately across the aisle and went to sleep. No one saw plaintiff's husband fall from the train. At the time Dixon fell asleep, it seems deceased had lain down in the seats theretofore occupied by both for the same purpose, but he evidently went out of the car soon thereafter, for it appears he was found unconscious by the roadside about three miles west of Pierce City, and it is to be inferred from the testimony the train was not far west of that place at the time Dixon fell asleep. The train was vestibuled throughout, but there is evidence tending to prove the vestibule door on the smoking car in which plaintiff's husband was riding had been standing open for a considerable time, and that in some manner he fell through the same to the roadside below.

The law is now well settled to the effect that while railroad companies are under no obligation to provide vestibuled trains for their passengers, if they do so, it is their duty to exercise high care toward maintaining them in a reasonably safe condition. It is said the purpose of vestibuled cars is to add to the comfort, convenience, and safety of passengers, more particularly while passing from one car to another, and the presence of such an appliance on a train operates to suggest to the passenger that the company has provided him a safe means of passing to and fro on the cars, and an invitation as well to use it as convenience or necessity may require. Among other things, the law devolves upon the defendant the duty of exercising high care to keep the doors of such vestibules closed and the traps on the platform in place while the train is passing over the road, and a passenger, without knowledge to the contrary, may conduct himself as though defendant had performed the full measure of its obligation in this behalf. Wagoner v. Wabash R. Co., 118 Mo. App. 239, 94 S. W. 293; Bronson v. Oakes, 76 Fed. 734, 22 C. C. A. 520; Crandall v. Minneapolis, etc., R. Co., 96 Minn. 434, 105 N. W. 185, 2 L. R. A. (N. S.) 645, 113 Am. St. Rep. 653; St. L., I. M. & S. R. Co. v. Oliver (Ark.) 123 S. W. 662; 2 Shearman & Redfield on Negligence (5th Ed.) § 524; Elliott on Railroads (2d Ed.) § 1589a.

But it is said there is no evidence that the vestibule door was open. The proof on this question is as follows: Dixon testified that he noticed the vestibule door was open at the time the train left Wichita, Kan., about 1:30 in the afternoon, and he noticed it was open immediately after leaving Pierce City, which was three miles east of the point at which the deceased was found injured by the side of the railroad. The last stop made by the train prior to the time plaintiff's husband fell therefrom was at Carthage, about 20 miles west from the point where the injury was received. From Carthage the train proceeded to Pierce City without a...