Layne v. Chicago & Alton Railroad Company

• Court: Missouri Court of Appeals
• Writing for the Court: ALLEN, J.
• Citation: Layne v. Chicago & Alton Railroad Company, 157 S.W. 850, 175 Mo.App. 34 (Mo. App. 1913)
• Decision Date: 03 June 1913
• Parties: MARY CAROLINE LAYNE, Respondent, v. CHICAGO & ALTON RAILROAD COMPANY, Appellant

157 S.W. 850

175 Mo.App. 34

MARY CAROLINE LAYNE, Respondent, v. CHICAGO & ALTON RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 3, 1913

Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.

Judgment affirmed.

Scarritt Scarritt, Jones & Miller for appellant.

(1) If it could be successfully asserted that there was substantial testimony that the conductor of this train did state to plaintiff that he would assist her in alighting at Bowling Green, still his failure to do so does not render the company liable because such an agreement on the part of the conductor would be a mere voluntary promise on his part outside the scope of his duties and employment and not binding upon the company. Railroad v. Earwood, 104 Ga. 127; Yarnell v. Railroad, 113 Mo. 576; Deming v Railroad, 80 Mo.App. 176; Deskins v. Railroad, 151 Mo.App. 432; Railroad v. Statham, 42 Miss. 607; Hurt v. Railroad, 94 Mo. 255, 262; Raben v Railroad, 74 Ia. 738; Sevier v. Railroad, 61 Miss. 8; Gage v. Railroad, 21 So. 657; Railroad v. McCullough, 33 S.W. 285; Selby v. Railroad, 122 Mich. 311. (2) It is needless, of course, to cite authorities to the effect that although plaintiff was a passenger she cannot recover even if the railroad company was negligent, if she also was guilty of any negligence which contributed to cause her accident and injury. When plaintiff undertook to alight from the car it was her duty to take reasonable care in doing so. It was her duty to look where she was going and to make at least a reasonable effort to ascertain upon which side the depot and platform was situated. She admits that she did not do this. Young v. Railroad, 93 Mo.App. 276; Sargent v. Railroad, 114 Mo. 348; Deskins v. Railroad, 151 Mo.App. 432; Weber v. Railroad, 100 Mo. 201; Nelson v. Railroad, 68 Mo. 593; Kelly v. Railroad, 70 Mo. 604. (3) Plaintiff's first instruction is vicious throughout as being a commentary upon the evidence. Spohn v. Railroad, 87 Mo. 74; Miller v. Marks, 20 Mo.App. 369. (4) Defendant's requested instructions Nos. 11, 12 and 14 should have been given. If plaintiff's baggage was too heavy for her to handle, she should have checked the same. The evidence is undisputed that she could have checked this baggage and plaintiff admitted that she was aware that she could have checked it. Yarnell v. Railroad, 113 Mo. 576; Deming v. Railroad, 80 Mo.App. 156.

John S. Gatson and Fry & Rodgers for respondent.

(1) Under the testimony in this case and the law in this State, the plaintiff made a clear case for the jury to decide whether the defendant was guilty of negligence, and the plaintiff of contributory negligence. Mathew v. Railroad, 115 Mo.App. 472; Hauks v. Railroad, 60 Mo.App. 281; Ridenhour v. Railroad, 102 Mo. 284; Land v. Railroad, 118 Mo.App. 488; Kelly v. Railroad, 70 Mo.App. 609; Fillingham v. Trans. Co., 102 Mo.App. 581; Wilbur v. Railroad, 48 Mo.App. 230; Young v. Railroad, 93 Mo.App. 273; Croom v. Railroad, 18 L. R. A. 602; Foss v. Railroad, 11 L. R. A. 367; Williams v. Railroad, 10 L. R. A. (N. S.) 413; Mercer v. Railroad, 115 N.W. 733; Nelson v. Railroad, 109 N.W. 933. (2) The evidence shows plaintiff was in a confused and bewildered state of mind, due to the negligent failure of defendant's conductor to notify her Bowling Green had been reached and to assist her to alight with her baggage, as he had promised to do. This, with her defective eyesight and the weather conditions, made her contributory negligence a question for the jury. Carney v. Anheuser, 150 Mo.App. 436; Wyler v. Ratican, 150 Mo.App. 481; 3 Thompson on Negligence, 395. (3) It was the duty of the conductor to announce the arrival of his train at Bowling Green, and his admitted failure to do so was negligence. Hurt v. Railroad, 94 Mo. 262; Cruse v. Railroad, 8 L. R. A. (N. S.) ___; Railway v. Staham, 42 Miss. 674.

ALLEN, J. Reynolds P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is an action for personal injuries received by plaintiff, respondent here, in alighting from a passenger train of defendant at Bowling Green, Missouri. Plaintiff recovered and defendant prosecutes the appeal.

Plaintiff took passage at Vandalia, Missouri, upon an eastbound train of defendant for the purpose of being transported to Bowling Green, where she would have to change cars to proceed to her ultimate destination, which was the town of Frankfort, in Pike county. The train was a combination freight and passenger train, made up of a large number of freight cars, with one small passenger coach at the rear thereof, used as a caboose and for the transportation of passengers. Plaintiff was some fifty-eight years of age, her eyesight poor, and was apparently not active in getting about. She travelled unattended, having with her a large heavy valise or "telescope," having been assisted by her daughter in getting on the train, with her luggage, at Vandalia.

Plaintiff's testimony is to the effect that during her journey she asked the conductor of the train when they would arrive at Bowling Green, requesting him to assist her in alighting from the car with her valise upon arriving there, telling him that she had not travelled much, had never ridden on a train of that character and that she "couldn't get around very good, couldn't see very good." She testified that the conductor promised that he would assist her in leaving the car.

The evidence shows that the train proceeded east until it reached a station called Booth, about a mile or a mile and a half east of Bowling Green. Upon arriving at this point it seems that a westbound passenger train was nearly due, and that there was not sufficient time to proceed with the entire train to Bowling Green before it passed. For this reason all of the train was placed upon a siding at Booth, except four cars and the passenger coach or caboose, and the latter were taken on to Bowling Green before the arrival of the westbound passenger train. It appears that there were two or three brakeman on the train, one of whom, called the flagman, ordinarily rode in the coach or caboose. It seems that the flagman remained with the cars left at Booth; and in going from this point to Bowling Green the conductor rode on the front of the engine, and one of the brakemen stood on the front platform of the passenger coach. It appears that the train crew had certain duties to perform at Bowling Green; that the train was somewhat behind time, and they were anxious to lose no time in setting about doing this work. Upon arriving at the station at Bowling Green the conductor stepped from the engine as it passed the platform and went about his duties. The brakeman on the front end of the passenger coach stepped from the steps at the front end of this car, it seems, before the car stopped, and neither he nor anyone else announced the arrival of the train at this station, or gave any attention to the passengers in the coach.

Plaintiff's testimony is to the effect that she did not know that the train had arrived at Bowling Green. A witness testified that as he passed out of the car, knowing that plaintiff wished to leave the car at Bowling Green, he said "Madam, this is Bowling Green." He testified however that plaintiff did not turn her head or look at him, or otherwise indicate that she heard what he said. In any event, although the other passengers left the car, plaintiff remained in her seat for some ten or fifteen minutes, while the car remained standing near the station. Finally a passenger entered the coach and she asked him when she would arrive at Bowling Green, and he told her that she was then at that place. She thereupon took her valise, and unassisted attempted to alight from the car. The evidence shows that it had been snowing, and that the ground was covered with at least a light fall of snow. Plaintiff testifies that it was snowing and blowing at the time, and that she was unable to distinctly see her surroundings, and was somewhat confused and bewildered.

Defendant's track at this point extends nearly east and west, and its station and platform provided for the accommodation of passengers is on the south side thereof. Plaintiff attempted to alight from the train on the north side of the track, thinking, as she says, that the station and platform were on that side, and not discovering her error because of her inability to see distinctly, and the fact that everything was covered with snow. In attempting to step from the lower step of the car to the ground some distance below, with her valise, she fell, breaking her thigh bone, i. e., sustaining a fracture of the neck of the femur of her right leg.

On behalf of defendant the conductor testified that during plaintiff's journey from Vandalia to Bowling Green she asked him "something about the bus and connecting line at Bowling Green," that plaintiff didn't say anything about not having good eyesight, or about her telescope. The witness did not remember whether plaintiff had made any request for him to let her know when she got to Bowling Green, or that plaintiff said anything else or made any request to be assisted in alighting from the train, but did not think she did.

This was the second trial of the case below; a previous verdict for plaintiff for $ 1250 having been set aside by the court, on defendant's motion, and a new trial granted. Upon the cause being tried again, there was a verdict for plaintiff for $ 800. Judgment was entered accordingly, from which defendant has appealed to this court.

I. Defendant earnestly insists that the demurrer to plaintiff's evidence, interposed by it below, should have been sustained. To state briefly its contention in this regard, it is that the defendant owed no duty to plaintiff to assist her in any manner in alighting from the...