Meyer v. Pacific R.R.

• Decision Date: 31 March 1867
• Citation: 40 Mo. 151
• Parties: HENRIETTA MEYER, Respondent, v. THE PACIFIC RAILROAD, Appellant.
• Court: Missouri Supreme Court

40 Mo. 151

HENRIETTA MEYER, Respondent,

v.THE PACIFIC RAILROAD, Appellant.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

This was an action by Henrietta Meyer, widow of August Meyer, deceased, against defendant, for damages for the death of her husband. The action was instituted under the second section of the “Act relating to damages,” R. C. 1855, ch. 147. The accident occurred at the depot of defendant at St. Louis. The Franklin accommodation train was at the station. For some time (15 or 20 minutes) before the train started, the deceased had been about the depot platform intoxicated. When the train started, Meyer was standing upon the rear platform of the baggage car, leaning against the baggage car door. The proof showed that the notice about riding on the platform was posted up on the outside of the cars instead of the inside; that there were three passenger cars in the train, and that there were a large number of vacant seats; that the conductor gave the signal to start from station platform, and as the train started, moving very slowly, he stepped on the platform where Meyer was; that the train had not moved more than thirty or forty feet from the place of starting before the signal had been given to stop; that Meyer was under the cars fatally injured.

The plaintiff's evidence tended to show that the conductor, in attempting to put him off, either by criminal intent or carelessness, forced him between the cars.

The defendant's evidence tended to show that he fell from the cars from the simple shock of starting the train, his drunken condition rendering him unable to stand up, and that the conductor attempted to save him.

The plaintiff requested the court to give the following instructions:

1. If the jury believe that August Meyer exercised ordinary care and prudence on his part, and that the injuries from which he died resulted from or were occasioned by the negligence, unskilfulness or criminal intent of the officers, agents, servants or employees of the defendant, or any one of them, whilst engaged in running the locomotive and train of cars mentioned in the petition; and further find that the plaintiff Henrietta Meyer was the wife of said August Meyer at the time of the latter's death, the jury will find for the plaintiff and assess her damages at five thousand dollars.

2. If the jury believe from the evidence that the conductor Darby was about to put Meyer off the cars, it was his duty first to stop the train before attempting to do so.

Both of which the court gave as asked, to which the defendant excepted.

And the defendant thereupon asked the court to instruct the jury as follows:

1. If the jury believe from the evidence that deceased received the injuries complained of through his own want of ordinary care and prudence, plaintiff cannot recover.

2. In order to entitle the plaintiff to recover, it is incumbent on her to show that the injuries complained of were occasioned by the negligence, unskilfulness or criminal intent of the officers, servants or employees of defendant whilst running, conducting and managing their locomotive and train of cars, without any fault on the part of deceased contributing thereto.

3. Even if the jury believe that the officers and employees of defendant were guilty of slight negligence whilst running, conducting and managing the train in question, yet if they find also that the want of ordinary care and prudence on the part of deceased directly contributed to occasion the injuries complained of, plaintiff cannot recover.

4. If the jury find that deceased was thrown from defendant's cars and thereby killed by reason of his voluntarily taking a dangerous and improper place or position on defendant's car, when it was practicable to get into a safer and securer place or position within the same, then the defendant is not liable in this action.

5. If the jury believe that the deceased, at the time he received the injuries complained of, had voluntarily placed himself on the platform of one of defendant's cars, and that he was thrown therefrom by a sudden jerk or movement of the train while in motion, whereby he received the injuries complained of; and that such jerk or movement was not such as to increase the danger or risk to persons within the cars, and that defendant had provided ample room for passengers within the cars, they must find for defendant.

Which instructions were given.

Defendant also asked another instruction, (No. 6--see opinion,) which the court refused to give as asked, but gave it after having interlined the same, to which interlineation the defendant excepted.

Leight...