Leslie v. Wabash, St. Louis & Pacific Ry. Co.

• Citation: 88 Mo. 50
• Parties: LESLIE v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Decision Date: 31 October 1885
• Court: United States State Supreme Court of Missouri

88 Mo. 50

LESLIE

v.THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Chariton Circuit Court.--A. H. WALLER, ESQ., Special Judge.

AFFIRMED.

Wells H. Blodgett, G. B. Burnett and G. S. Grover for appellant.

(1) The proof failed to sustain the material aver ments of the petition. Merle v. Hascall, 10 Mo. 406; Burk v. Ferrard, 19 Mo. 301; Jones v. Londerman, 39 Mo. 287; Harper v. Ry., 44 Mo. 488; Cape Girardeau, etc., v. Kimmel, 58 Mo. 83; Buffington v. Ry., 64 Mo. 246; Waldhier v. Ry., 71 Mo. 514; Edens v. Ry., 72 Mo. 212; Price v. Ry., 72 Mo. 414. (2) The second instruction given for plaintiff was erroneous; ( a) it incorrectly stated the law applicable to carriers of passengers; ( b) it directed the attention of the jury to a fact not in evidence; ( c) it authorized a recovery upon a cause of action not stated in the petition. (3) The court refused legal and proper instructions asked by defendant.

John Montgomery, Jr., and U. S. Hall for respondent.

(1) The facts proven on the trial fully support the averments of the petition. (2) The instructions given announce correctly the law governing the whole case.

BLACK, J.

Plaintiff was a passenger on one of defendant's trains from a point in Iowa to Brunswick. He sues because of injuries received while getting off at the latter place. The questions presented arise from the refusal of the court to sustain a demurrer to the evidence, and in giving instructions. Involved in these rulings, it is contended the plaintiff declared upon one cause of action and was permitted to recover upon another. Plaintiff had been at Brunswick certainly twice before the time in question. He testified that the trains stopped three or four times after reaching the city limits; some one said there was a freight train on the track; he did not get up as other passengers did. He says the train pulled up to the platform at the depot, stopped, and was standing still, when he was on the steps of the car with his baggage; as he was in the act of getting off, the train suddenly jerked, and he fell between the car and the platform and was injured; that the platform was a long one and well lighted; that the conductor got off just in advance of him and was on the platform; that the station had been previously announced, and that hacks and hotel runners were standing around. The conductor says in passing the west end of the platform the train was running very slow and he got off; that it stopped and started up again, and as it was starting he saw the plaintiff falling; he ordered the brakeman to pull the bell; he grabbed the plaintiff, when the train stopped again. The passengers were then unloaded, when the train pulled up about one hundred feet further to the usual stopping place, where the baggage was unloaded, and then the train was switched for the night. It went no further. He says the first stop at the platform was on account of getting too close to a freight train, and his train started up when that one was out of the way. There was other evidence tending to show that the brakeman told the passengers not to get out. Other evidence tended to show that plaintiff attempted to get off while the train was in motion, though plaintiff's evidence, and that of the conductor is not materirially different. The engineer and plaintiff had a conversation after the accident. Plaintiff says his statement then made was: “When the train slowed I thought it was going to stop and I jumped off, or went to get off and fell. I think I could have saved myself if I had not been so heavily loaded, even though the train jerked as I went to get off the car. As to saying it was my fault, I never uttered such a word or said such a thing. * * * I said it started as I went to step off, or get off, I don't recollect the word. I did not jump off; it started as I went to get off.”

The first instruction given at the request of the plaintiff is as follows:

“1. The court instructs the jury that the plaintiff had a right, after the name of the station was announced, to infer that the first stop of the train at the platform was at the station, and when the train came to a full stop, if the jury believe it did come to a full stop, opposite the platform of the station, and the conductor had stepped off his train with his lantern immediately preceding said stopping, if any, the plaintiff was warranted in believing the proper time had arrived for him to leave the train, unless the jury believe he was warned or directed not to alight then; and if the jury believe from the evidence that said train came to a full stop opposite the platform of this station, and the plaintiff, in the exercise of such care as a prudent person would have used, undertook to leave the train, and through the sudden starting of the same was jerked or thrown therefrom, or fell upon the platform, and between it and the cars, and was injured as charged in the petition, your finding and verdict must be for the plaintiff.”

1. The substance of the petition is, as to the first averment, that defendant's servants did not stop the train a sufficient length of time to allow plaintiff to get off on the platform provided for the use of passengers. The contention is that this allegation charges the negligence to have been in failing to stop the train a sufficient length of time to enable plaintiff to get off, when the bulk of the evidence shows that the train did stop at the platform a sufficient length of time. In other words the negligence, if any there was, was not in failing to stop a sufficient length of time, but in stopping and starting at a place opposite the platform, other than the usual stopping place. Looking at this single allegation in the petition on the one hand, and the evidence as a whole, and the instructions before noted on the other, there is some ground for the claim made. But the petition makes no reference to the usual stopping place. It also alleges: “On the contrary when the train reached the depot and plaintiff was on the edge of the steps and before he had time to leave them, the said servants negligently, suddenly, and unexpectedly, moved and jerked the train forward,” etc. Taking the petition, all in all, there is no substantial variance between it and the proofs, much less a failure of proof. The rule that a plaintiff cannot declare upon one cause of action and recover upon another is everywhere conceded: 10 Mo. 406; 19 Mo. 30; 24 Mo. 598; 69 Mo. 626. The rule in this respect has not been changed by the practice act. 39 Mo. 287. But sections 3702 and 3565, Revised Statutes, recognize...