Laub v. Chicago, Burlington & Quincy Railway Co.
| Decision Date | 07 May 1906 |
| Citation | 94 S.W. 550,118 Mo.App. 488 |
| Parties | HENRY C. LAUB, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Chesley A. Mosman, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Culver & Phillip for appellant.
(1) The court erred in refusing the demurrer asked at the close of plaintiff's evidence and at the close of the entire testimony. (2) The demurrer should have been given because the fact, if it be a fact, that the plaintiff was induced to leave the train at Langdon by the erroneous announcement of the brakeman was not the proximate cause of the injury. 21 Amer. & Eng. Enc. of Law, 485, 492, cases collated; Henry v. Railway, 76 Mo. 288. (3) Not only the overwhelming testimony, but the conceded physical facts show that the plaintiff's injury was the result of his own negligence. Payne v. Railway, 136 Mo. 575; Lien v Railway, 79 Mo.App. 475; Kelsey v. Railway, 129 Mo. 362; State v. Deltmer, 124 Mo. 435; Hayden v. Railway, 124 Mo. 566; Lane v. Railway, 136 Mo. 4; Champagne v. Hammy, 189 Mo. 109. (4) The court erred in giving plaintiff's instruction numbered 1. Railway v. Foreman, 73 Tex. 314; Deay v Railway, 41 Minn. 184; Johnson v. Railway, 125 Mass. 75; State v. Railway, 58 Maine 176; Gunderman v. Railway, 58 Mo.App. 370; Redigan v Railway, 155 Mass. 44; Burbank v. Railway, 11 L. R. A. 720; Woolwine v. Railway, 36 W.Va. 329; Railway v. Fairborn, 18 Ark. 491; Gillies v. Railway, 59 Pa. 129; Post v. Railway, 23 S.W. 708.
Eastin, Corby & Eastin for respondent.
(1) The demurrer to the evidence was properly overruled. (2) Two well-settled propositions of law are advanced by the respondent as the grounds upon which he should recover in this case. 1. It was the duty of defendant to properly advise the plaintiff as to the location of the restaurant, and if by a failure to perform that duty, plaintiff was injured he has his action. 2. It was the duty of the defendant to exercise ordinary care to have all portions of its station grounds to which its passengers would be likely to resort or go upon, in a reasonably safe condition, and if it failed in this and plaintiff was injured by reason thereof, he has his action. Wilburn v. Railway, 36 Mo.App. 203; Adams v. Railway, 100 Mo. 555; Winkler v. Railway, 21 Mo.App. 99; Evans v. Railway, 11 Mo.App. 463; Railroad v. Lucas, 119 Ind. 583, 6 L. R. A. 193; 6 L. R. A. 193, n.; Railroad v. Sue, 25 Neb. 772; Reed v. Axtell, 84 Va. 231; Railroad v. Thompson, 76 Ga. 770; Green v. Railroad, 36 F. 66; Fordgee v. Merrill, 49 Ark. 277; Grimes v. Railroad, 36 F. 72. (3) A passenger is not obliged to remain on the train during the entire trip, but may temporarily alight therefrom at intermediate points, for the time the train remains there, for any purpose not inconsistent with his character as a passenger. Railroad v. Overfield, 47 S.W. 684; State v. Railway, 50 Me. 176, 4 Am. Rep. 259; Railway v. Riley, 39 Ind. 568; Ormond v. Hughes, 60 Tex. 180; Parsons v. Railway, 113 N.Y. 358; Clussman v. Railway, 9 Hun. 618; Dodge v. Boston, S. S. Co., 148 Mass. 207; Haebrik v. Carr, 29 F. 298.
Plaintiff claims that while a passenger upon one of defendant's passenger trains he was induced to leave the train by a negligent direction given him by defendant and sustained injuries in consequence thereof. He recovered judgment in the sum of $ 1,500 and defendant appeals.
Defendant argues that its request for an instruction in the nature of a demurrer to the evidence should have been sustained for two reasons; First, because the evidence adduced by plaintiff disclosed no negligent act of defendant that was or could have been the proximate cause of the injury; and second, plaintiff himself was guilty in law of negligence that directly contributed to his injury.
On January 18, 1904, plaintiff, a man eighty years old, became a passenger for hire on one of defendant's trains. His journey began at Council Bluffs, Iowa, and St. Louis was his destination. The train left Council Bluffs at about five o'clock in the afternoon and its equipment for passengers consisted of a smoking car, chair car, and sleeping car. Plaintiff occupied a seat in the chair car and was safely carried until the station of Langdon was reached. The train made two stops at this point, first at the station provided for the reception and discharge of passengers and then some three hundred feet forward at a restaurant where supper was served for the refreshment of the passengers who desired it. The first stop consumed about two minutes; the second twenty minutes. While the train was enroute to Langdon a brakeman ascertained the number of passengers who desired supper there. He asked plaintiff if he (plaintiff) would take "supper at Langdon" and received a negative answer. When the approach to the station at Langdon was signalled, the brakeman passed through the car calling out (according to the version of plaintiff), "Langdon, twenty minutes for supper." When the train made the first stop, ten or twelve passengers left the chair car as plaintiff supposed for the restaurant, but in fact they had reached the end of their journey on that train. The influence of example created a desire in plaintiff for refreshment and caused him to act upon the belated purpose to satisfy his desire. Accordingly, he was the last one to leave the car and when he alighted on the platform he looked around in vain for the restaurant. While so engaged, the train proceeded to the restaurant platform, the disentrained passengers went their various ways and plaintiff found himself alone and bewildered. He had never traveled over this road before and became confused in the situation in which he was placed. It was then about 7:30 o'clock in the evening. Plaintiff says there were no lights in or about the station building and that "it was as dark as midnight on the Missouri bottoms." His physical surroundings may be thus described. The platform, on which he stood, was immediately west of the main track, which runs north and south; three hundred feet south was the restaurant platform on the east side of the track. Across the track from where he stood was another platform owned and used by a connecting carrier that operated a railroad eleven miles long between Langdon and Rockport. Directly east of this platform was the main track of this road, which also ran north and south, and on this track stood a train on the point of departure, consisting of a small engine and one antiquated passenger coach that was "illuminated" by four lanterns. The engine carried a headlight that threw its beams towards the south. So placed, plaintiff says he heard a "voice out of the darkness" inquiring if he wished to go to Rockport. Plaintiff answered no and said that he was looking for the restaurant and for his train. The voice belonged to the conductor of the Rockport train, who was standing on the platform across the way and replied that if plaintiff would come over he would be guided aright. Accepting this invitation, plaintiff crossed the track and joined the conductor. Both then started south--the conductor carrying a lantern--and walked along the platform to the end thereof, where disaster befell plaintiff through the agency of a step to the ground, which he failed to observe and of the presence of which the conductor did not warn him. The elevation of this platform above the ordinary surface of the ground was not over a foot, but a depression had been worn in the ground at the place where plaintiff stepped from the platform and plaintiff received a hard fall, that severely injured him.
Defendant's witnesses contradict those for plaintiff in these particulars. They say that the brakeman's call for Langdon was, "Langdon, twenty minutes for supper at second stop:" that defendant's station was well lighted inside and out so that the platform was sufficiently illuminated for the convenient use of its passengers; and that the Rockport platform was rendered reasonably safe so far as light was necessary by the lanterns in the car and that in the hand of the conductor and by the engine headlight. The conductor of the Rockport train denies that he spoke to plaintiff while the latter was on defendant's platform and states that he first knew of the presence of plaintiff when he saw him among the transferring passengers on the Rockport platform. He noticed that plaintiff seemed bewildered and, on inquiry, learned that he had become separated from his train. He then showed plaintiff the lights of his train, which then was standing at the restaurant platform, whereupon plaintiff hastened forward. The conductor called out a warning to him concerning the step, which was not heeded, and the fall resulted.
From the photographs before us, as well as from the testimony, it appears that two ways were open to plaintiff to regain his train from the position he occupied when left on defendant's platform. He could have walked down the track or crossed over to the east side and thence alongside the track to the restaurant. An embankment on the west side of the track made that way less practicable.
The negligence charged in the petition comprises these four acts of defendant: 1st, misdirecting plaintiff as to the proper place for him to alight. 2nd. Failing to have a servant at the station to safely pilot him. 3rd. Failure to provide lights and barriers for the protection of passengers in plaintiff's situation. And 4th. Maintaining a dangerous pitfall in the pathway along the east side of the track connecting the station platform with the restaurant.
Defendant in effect, asks us to disregard the evidence of plaintiff relating to the misdirection, arguing that, as it...
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