Lewis v. Ill. Cent. Railroad Co.

• Decision Date: 03 March 1928
• Docket Number: No. 26717.,26717.
• Citation: 3 S.W.2d 371
• Parties: LOUIS BERTON LEWIS v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

3 S.W.2d 371

LOUIS BERTON LEWIS v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant.

No. 26717.

Supreme Court of Missouri, Division No. 1.

March 3, 1928.

Appeal from Circuit Court of City of St. Louis — Hon. William H. Killoren, Judge.

REVERSED AND REMANDED.

Watts & Gentry for appellant; Vernon W. Foster of counsel.

(1) The court erred in overruling defendant's demurrer to the evidence at the close of all the evidence in the case. The allegations of plaintiff's second amended petition are specific and should be considered one by one. When so considered, they will be found to be unsupported by any evidence tending to show that any negligent act alleged in the second amended petition was a direct, proximate cause of plaintiff's injury. A casual connection between an act alleged and an injury must be shown. If it is not shown to be a proximate cause, it cannot support a verdict. Harper v. Railway, 187 Mo. 586; Walsh v. Railroad, 102 Mo. 587; Brow Realty Co. v. Berman, 212 Mo. App. 401; Waldman v. Const. Co., 211 Mo. App. 576; Weber v. Milling Co., 242 S.W. 985; State ex rel. v. Ellison, 176 S.W. 11; State ex rel. Boeving v. Cox, 276 S.W. 869. No evidence showing the cause of the collision between plaintiff and the porter, no presumption that it was the result of the porter's fault rather than plaintiff's fault can be indulged. There being no proof of negligence on the porter's part, and no inference of negligence being justified, the verdict could not be based on anything but mere speculation or guesswork, which is not permissible under the law. Trigg v. Lumber Co., 187 Mo. 227; Harper v. Term. Ry. Co., 187 Mo. 586; Goransson v. Mfg. Co., 186 Mo. 300; Fuchs v. St. Louis, 167 Mo. 620; Biddle v. Jacobs, 172 S.W. 260; Sabol v. Cooperage Co., 282 S.W. 425; Bennett v. Equipment Co., 214 S.W. 244; Courter v. Mercantile Co., 266 S.W. 340; Winter v. Van Blarcom, 258 Mo. 418; Lee v. Jones, 181 Mo. 291. (2) Plaintiff's evidence as to how he was knocked down the steps is unbelievable, because contrary to physical facts. Where the physical facts demonstrate clearly and positively that a plaintiff's testimony cannot possibly be true, the court is not warranted in treating such testimony as having any probative value whatever, but must entirely disregard it. Miller v. Schaff, 228 S.W. 491; Cadwell v. Stove & Mfg. Co., 238 S.W. 418; Alexander v. Ry. Co., 289 Mo. 599; Phippin v. Ry. Co., 196 Mo. 343; Sexton v. Ry. Co., 245 Mo. 272; Nugent v. Milling Co., 131 Mo. 253; Giles v. Ry. Co., 169 Mo. App. 24. (3) Instruction 4, which was given by the court at the request of the plaintiff, was erroneous. This instruction belittled the defense based on the intoxication of the plaintiff and expressly told the jury that it amounted to nothing unless it was of such a degree as to impair his physical and mental faculties so that he was unable to control his movements in a normal manner, etc. The plaintiff's intoxication was a matter the jury had a right to consider in passing upon his credibility as a witness. It required the jury to find that plaintiff's intoxication was the direct cause of plaintiff's injuries and that the burden of proving it to be such rested on the defendant. It was enough for the jury to find that the plaintiff's intoxication directly contributed to cause plaintiff's injuries, and it was not incumbent upon the defendant to show that the intoxication of the plaintiff was the direct cause, that is, the sole cause, which, independently of all other causes, produced plaintiff's injury. His intoxication was pleaded as a contributory cause and would defeat plaintiff's right of recovery if it was a direct contributing cause. Instruction 5 was erroneous and misleading. The plaintiff himself testified that he requested to be allowed to leave the train while it was in motion, without having made any request to have the train stopped.

William W. Sleater, Jr. and George T. Meyer for respondent; Frank J. Kolbohm on the brief.

(1) The rule that the causal connection between the negligent act and the damage may be broken by the interposition of an independent responsible human agency cannot be applied to relieve one of liability for one negligent act by interposing another, also committed by himself. If there were other cause intervening, which, combined with the former act, produced the injury, and if the defendant was responsible for those causes also, it cannot be held to be such independent causes as to relieve the defendant from liability for its initial act of negligence. The negligent acts charged in plaintiff's petition are not independent of each other, but all combine to produce the injury within the meaning of the above rule. Burger v. Mo. Pac. Ry. Co., 112 Mo. 244; Newcomb v. Railroad, 182 Mo. 721; Evans v. General Explosives Co., 293 Mo. 377. (2) The fourth allegation of negligence was duly proven. The testimony showed that what happened was in continuance of the previous negligent acts and occurred in the compliance with the negligent order to get off. The allegation charges that the defendant's employee on said train failed to use due care for plaintiff's safety in so negligently and carelessly conducting himself on the platform of defendant's car while arranging same so plaintiff could, at the proper time, depart therefrom, and while in close proximity to plaintiff, said train being in motion and said vestibule door and trap open, so as to brush, push and shove against plaintiff, causing plaintiff to lose his balance and fall from and under said car and train. The evidence shows that the collision occurred between plaintiff and porter when plaintiff was endeavoring to comply with the negligent order of the porter on and within the small confines of the vestibuled platform of the car. It was the action of the porter that caused the collision and threw plaintiff off his balance, the collision occurring while and when the negligence of the porter was continuing. It was not necessary to indulge in any inference as to the porter's negligence; it was present. That the plaintiff's testimony as to how he was knocked down the steps is unbelievable and contrary to physical facts, is purely conjectural on the part of appellant. (3) The issue of the intoxication of plaintiff was brought into the case by the appellant in an endeavor to establish contributory negligence. Intoxication will not, as a matter of law, establish contributory negligence set up in an answer, and amounts to nothing unless it contributes to the injury complained of. Buddenberg v. Chouteau Trans. Co., 108 Mo. 394. There being no proof of contributory negligence, as alleged, intoxication would amount to nothing. If the negligence of plaintiff is the sole cause of the injury there could be no contributory negligence. There could be no contributory negligence unless there was also negligence of the defendant to which that of plaintiff could contribute. Unless the negligence of plaintiff was a proximate cause of the injury, his action, on the ground of contributory negligence, would not be defeated. Payne v. Ry. Co., 129 Mo. 418. In each instance the negligence and contributory negligence must be direct, that is, must have entered into and formed a part of the efficient cause of the accident. Oates v. Street Ry., 168 Mo. 548. (4) It is to be remembered that there is no testimony of record in this case that the plaintiff wished to be allowed to leave the train while the train was in motion. It is not negligence per se to alight from a moving train at the direction of the train officials. B. & O.S.W. Railroad v. Mullen, 217 Ill. 203: Owens v. Wabash, 84 Mo. App. 143; Newcomb v. Railroad, 182 Mo. 687; Ardison v. Illinois Central, 249 Ill. 300.

RAGLAND, J.

Action for personal injuries alleged to have been negligently caused.

Defendant was a carrier of passengers by rail. Plaintiff in attempting to leave one of its trains while in motion fell and received the injuries for which he seeks a recovery. The facts and circumstances leading up to and attending the occurrence, as detailed by him from the witness stand, are as follows:

"On the morning of the 16th of September, 1923, I went to the Illinois Central Depot in Murphysboro to help my wife on the train. I then lived about five blocks from the depot. My wife was coming to St. Louis. I was carrying her grip. We walked to the station, leaving home about 3:30 in the morning, and I guess it took us about fifteen minutes to walk to the station. My wife was weak, and I walked slow with her. The train had not pulled in when we arrived at the station. In the waiting room I set my wife down and I went to the ticket office to buy a ticket. I gave the agent a five-dollar bill and bought one ticket. The train came in while the ticket agent was giving me my change. I then went back where my wife was and we started to the train. It was dark at that time of the morning in September. We went to the front steps of the day coach where the door was open. The train porter was standing at the entrance to the day coach. When we started from the waiting room to the train, my wife went a little ahead of me and I stopped to pick up the grip and held the door open while she went out, so that she was a few steps ahead of me when we got to the train. The porter asked us for tickets. She told him she was going to St. Louis and he made us show her ticket. When I got up to him and he asked for my ticket, I told him I had no ticket, that I was not going anywhere, but was only helping my wife on the train as she was sick, and he said, `All right.' I went in with her to get her a seat. I got on the front end of the coach. The train was pretty crowded, and I had to walk to the rear end of the coach to get her a seat, and when I got there I kissed her and put her grip down and started back. Before I got to a seat the train started in motion. After the train had started and I had set my wife down, I went towards the place where I had got...