Kaenter v. Missouri Pac. Ry. Co.

• Citation: 218 S.W. 349
• Decision Date: 03 February 1920
• Docket Number: No. 15848.,15848.
• Parties: KAENTER v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

218 S.W. 349

KAENTER v. MISSOURI PAC. RY. CO.

No. 15848.

St. Louis Court of Appeals. Missouri.

Argued and Submitted January 9, 1920.

Opinion Filed February 3, 1920.

Rehearing Denied February 19, 1920.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published."

Action by Fred W. Kaenter against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals, Affirmed.

James F. Green and H. H. Larimore, both of St. Louis, for appellant.

E. M. Grossman and J. L. Hornsby, both of St. Louis, for respondent.

REYNOLDS, P. J.

The facts out of which this litigation grew may be summarized as follows:

On July 7, 1915, plaintiff boarded one of defendant's trains at Hermann, Mo., bound for the town of Morrison, Mo., an incorporated village on defendant's line of railway between St. Louis and Jefferson City, arriving at his destination about 12:15 on the morning of July 8th, following. The proof tended to show that there was a street or public highway crossing defendant's track and right-of-way, paralleling the west end of the depot and on into the town; that this street was the way used by the public and taken by plaintiff in leaving the premises of defendant; that neither the street nor path had been constructed or were maintained by defendant; that the grade of such street as it passed across and over the right-of-way of defendant, at the point where plaintiff fell off of the path or street, is 7 or 8 feet higher than the ground adjacent thereto, leaving a pit or excavation under and to the west; that barriers some 4 feet high, consisting of iron rods about 1 foot apart had been strung along uprights and run horizontally with the level of the street and along this excavation, the lower rod being some 3 feet from the surface of the street. Plaintiff, while walking along this path in the street, close to the western edge thereof and at a point some 82 feet from the tracks of the defendant, slipped, and in falling went over the edge of the street and path down into the depression or excavation, which was on defendant's right-of-way, the excavation some 8 feet deep and lying to the west of the street as above set out. It was a moonlight night and plaintiff was in company with several other traveling men. Plaintiff had walked over this pathway and point by day and by night a number of times before the time of the accident. The injuries consisted of a fractured ankle and bruises. There was a verdict in favor of plaintiff in the sum of $1250, judgment following, from which, after an unsuccessful motion for a new trial, defendant, by proper steps, has appealed.

The errors assigned are to the action of the court in refusing to give defendant's instructions numbered 1 and 2, in the nature of demurrers to the evidence, offered at the close of plaintiff's case and at the close of the whole case; to the action of the court in giving the first instruction asked by plaintiff, in which the jury were told, among other things, that plaintiff was entitled to recover, if they found that plaintiff "proceeded to leave defendant's premises and to go into the town of Morrison, and that he walked along a path used by persons arriving at or leaving the town of Morrison on defendant's trains," it being claimed that this instruction broadened the issues made by the pleadings and in fact took the case out of the issues made by the pleadings, because plaintiff had alleged in his petition that he had met with the accident complained of while walking along a path constructed and maintained on its property by defendant, for the use of persons arriving at and leaving the town of Morrison on defendant's trains.

The final assignment of error is to the action of the court in refusing to give an instruction (No. 3), asked by defendant as follows:

"The court instructs the jury, that even though you may find and believe from the testimony that plaintiff was injured at the time set out in his petition, and while walking along a path leaving defendant's depot in the town of Morrison, Missouri, yet if you find and believe that said path was not constructed nor maintained on its property by defendant, then your verdict must be for the defendant."

The petition, after averring that plaintiff as a passenger on defendant's train, taking passage for the town of Morrison, had alighted from the train at Morrison about 12:15 A. M., on the morning of July 8, 1915, and proceeded to leave defendant's premises,...