Lewis v. Illinois Cent. R. Co.
| Decision Date | 02 April 1932 |
| Docket Number | No. 31437.,31437. |
| Citation | 50 S.W.2d 122 |
| Parties | LEWIS v. ILLINOIS CENT. R. CO. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Wm. H. Killoren, Judge.
Action by Louis Berton Lewis against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Watts & Gentry, of St. Louis (V. W. Foster, of Chicago, Ill., of counsel), for appellant.
Wm. W. Sleater, Jr., and G. T. Meyer, both of St. Louis, for respondent.
This is an action for personal injuries, and this is the second appeal in the case. This court's opinion on the first appeal is reported in 319 Mo. 233, 3 S.W.(2d) 371. Plaintiff's testimony here is substantially the same as that set out in the opinion on the former appeal. Plaintiff said he assisted his wife, who was sick and was going to St. Louis for treatment, onto defendant's train, carrying her baggage. He said that he told the train porter that he was not going anywhere, but his wife was sick and he was helping to get her on the train and to get her seat, and was coming off; and that the porter then permitted him to board the train with her baggage. He said that before he found a seat for his wife the train started; that he assisted her to the seat, set her grip down, kissed her goodbye, rushed back to the platform of the car where he had entered, and there found the porter; that he told the porter he wanted off; and that the porter opened the trapdoor over the steps and the vestibule door and said, "All right, get off." Plaintiff said that, as he got to the edge of the steps, the porter started to go into the day coach and ran into him, the porter's shoulder striking plaintiff's shoulder; that this caused plaintiff to lose his balance and fall down the steps; and that, although he caught hold of the handrail and broke his fall, he was unable to hold on, but fell under the train. His foot was run over and part of his leg below the knee had to be amputated.
Defendant had considerable evidence that plaintiff was intoxicated at the time. Some of the witnesses said that he was unable to walk steadily. Plaintiff, while admitting that he had been in some "soft water places" and had some drinks of "white mule" earlier in the evening, said that these only made him feel pretty good at the time, that the effects of these drinks had worn off before he went to the train with his wife, and that, if he walked peculiarly, it was because of corns and bunions and a lame knee. The jury were evidently convinced that it was the corns and not the "corn." The train porter denied that plaintiff told him he was going to leave the train after assisting his wife, and had no recollection of seeing him get on. He said that after assisting the passengers on the train he went to where the mail was being unloaded, and, when that was done, signaled the train to start; that when the open door of the coach plaintiff entered came to the point where the mail was unloaded, he swung onto the step; that, as he did so, he met a colored man on the steps, but did not know whether or not it was plaintiff, and that this man jumped off, but he did not know that he fell and was injured. The porter denied that he had closed the vestibule or platform trapdoor and opened them again to let any one off, or that he bumped against plaintiff.
Plaintiff's third amended petition contained the same charge of negligence, concerning the starting of the train with the knowledge that plaintiff was still aboard, as set out as No. 1 in the former opinion. No. 3, of the former petition, charging that plaintiff was ordered to get off the train, was eliminated, and No. 2 and No. 4 were rewritten as follows:
Defendant's answer was a general denial and a plea of contributory negligence because of plaintiff's being intoxicated and attempting to get off the moving train while in that condition. The verdict and judgment in the trial court, from which defendant appeals, was in favor of plaintiff for $10,000. This is the same amount as the judgment in the first trial. Defendant assigns as error the giving of plaintiff's instruction No. 1 and improper remarks made by plaintiff's counsel in his closing argument.
The first part of instruction No. 1 required the jury to find the facts to which plaintiff testified concerning accompanying his wife to the train and his purpose in doing so, and instructed the jury that, if plaintiff advised defendant's agents of this purpose or if they had knowledge of it, it was the duty of defendant to hold the train a reasonable time for plaintiff to seat his wife and leave the train. The instruction then told the jury what they should consider in determining what was a reasonable time, and then that if defendant did not hold the train for a reasonable time that such conduct was negligence and it then became the duty of defendant, if it undertook to discharge plaintiff, to exercise ordinary care for plaintiff's safety in doing so. The instruction then continued:
"And if you further find and believe from the evidence that the defendant's agents and servants in charge of said train failed to exercise such ordinary care for plaintiff's safety while attempting to discharge him from said train (in that defendant's agent and servant opened the outside vestibule door of and lifted the trap in the platform of the car in which plaintiff was then standing, while said train was in motion, and negligently and carelessly directed plaintiff to get off of said train), and then, if you find the facts to be, negligently failed to allow the plaintiff to have a free and unimpeded passageway at such time for his exit over said platform and down the steps of said car (in that defendant's agent and servant negligently and carelessly acted in the presence of and in close proximity to plaintiff while arranging said platform for the purpose of discharging plaintiff, so as to brush, push or shove against plaintiff, causing plaintiff to be thrown off of his balance, from and out of said car and under the wheels of said train and to be injured thereby), and that plaintiff was injured as a direct and proximate result of the aforesaid negligence of the defendant, and while plaintiff was exercising ordinary care for his own safety, if you find from the facts that the defendant was guilty of negligence and carelessness as aforesaid and plaintiff was injured thereby, your verdict shall be for the plaintiff."
Defendant's first objection to this instruction is that it assumes the truth of controverted facts. Defendant says that the two clauses in parenthesis, each commencing with "in that defendant's agent and servant," etc. assume that defendant's porter did these things, and that the instruction means that if, because the porter opened the vestibule door and lifted the trapdoor and directed plaintiff to get off the train while it was in motion, they find that defendant's agents in charge of the train failed to exercise ordinary care for plaintiff's safety, and, further, that if, because the porter pushed against plaintiff, causing him to be thrown off his balance and out of the car, they find that defendant's agents negligently failed to allow plaintiff to have a free and unimpeded passageway for his exit, and that plaintiff was injured thereby, then the jury should find for the plaintiff. Therefore it is defendant's contention that the instruction only leaves the jury to find whether these facts, which defendant says were assumed, constitute negligence.
We do not think that the instruction is susceptible of such construction nor that it would be so understood by the jury. This part of the instruction commences, "If you further find and believe from the evidence that defendant's agents * * * failed to exercise ordinary care for plaintiff's safety * * * in that defendant's agent and servant" opened the door and did the other things mentioned. As used here, we think this would be understood to mean that, if the jury find that defendant's agent failed to exercise ordinary care for plaintiff's safety "in the following respect," or "by reason of" or "on account of" finding the following things, namely: "That defendant's agent * * * opened the outside vestibule door and lifted the trap * * * while the train was in motion, and negligently and carelessly directed plaintiff to get off." This meaning is made clearer by the next clause, "if you find the facts to be," after which, the instruction then goes on to require a finding in regard to the porter running into plaintiff as he started down the steps. We think this part of the instruction would also be understood to mean that, if the jury find that defendant's agent negligently failed to allow the plaintiff a free passageway for his exit "in the following respect" or "by reason of" or "on account of" finding the following things, to wit: "That defendant's agent * * * negligently and carelessly acted * * * while arranging the platform for the purpose of discharging plaintiff, so as to push or shove against plaintiff." The...
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