Meyers v. Chicago, B. & Q. Ry. Co.

• Decision Date: 05 May 1913
• Court: Missouri Court of Appeals
• Parties: MEYERS v. CHICAGO, B. & Q. RY. CO.

157 S.W. 362

MEYERS v. CHICAGO, B. & Q. RY. CO.

Kansas City Court of Appeals. Missouri.

May 5, 1913.

Rehearing Denied June 2, 1913.

1. NEGLIGENCE (§ 119) — PLEADING AND PROOF — VARIANCE.

A plaintiff who specifies in his petition the precise manner of his injury will be held to his specifications, and cannot recover on any different state of facts, for defendant cannot be brought into court to answer one charge of negligence and be confronted by another.

2. PLEADING (§ 34) — PROOF — VARIANCE — CONSTRUCTION.

Where defendant interposed no objection to the proof of negligence offered by plaintiff, accepting the issue tendered as one within the specifications of the petition which averred with particularity the negligence relied on, the petition will have a most liberal interpretation in determining whether there was a variance.

3. RAILROADS (§ 282) — INJURIES TO PERSON ON STATION GROUNDS — ACTIONS — VARIANCE.

In an action against a railroad company for damages for injuries which plaintiff sustained while walking upon a path leading to defendant's station wherein there was an express office, proof that the graveled path led between a switch stand and the tracks, and that plaintiff in making a detour around the switch stand to avoid a train fell into a hole cannot, where defendant made no objection, be held to constitute a variance from allegations that defendant caused an excavation to be made squarely across the pathway, for, broadly speaking, it was across the only apparently safe path.

4. RAILROADS (§ 282) — INJURY TO PERSONS ON STATION GROUNDS — ACTIONS — QUESTIONS FOR JURY.

In an action against a railroad company for damages for injuries sustained by plaintiff in falling into an excavation on a path leading to defendant's station, where the evidence as to whether the express office in such station was open was conflicting, the question whether plaintiff was a licensee or invitee was for the jury.

5. RAILROADS (§ 274) — INJURIES TO PERSONS ON STATION GROUNDS — LICENSEES.

A person who comes upon the premises of a railroad company on its invitation, or for some purpose connected with its business, is entitled to the exercise of reasonable care to be protected from injury; while one who uses the premises merely for his own convenience and pleasure as a bare licensee or trespasser has no right, except that the railroad and its servants cannot wantonly or willfully injure him.

6. TRIAL (§ 244) — INSTRUCTIONS — EVIDENCE.

An instruction that the jury are the sole judges of all testimony by plaintiff in his own behalf, but that any statement against his interest shall be accepted as true, is erroneous,

because singling out plaintiff and commenting upon his testimony.

7. EVIDENCE (§ 265) — ADMISSIONS — CONCLUSIVENESS.

The credibility of a witness, whether interested or not, is for the jury, and therefore statements by him even against his own interest are not conclusive admissions.

Appeal from Circuit Court, Platte County; A. D. Burnes, Judge.

Action by Abner Meyers against the Chicago, Burlington & Quincy Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

O. M. Spencer and H. B. Pyle, both of St. Joseph, and Guy B. Park, of Platte City, for appellant. Andrew D. Gresham and Francis M. Wilson, both of Platte City, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages for personal injuries he alleges were caused by negligence of defendant. The answer is a general denial. The jury returned a verdict for defendant, but the court set it aside and granted a new trial on the ground of error in instructions numbered 1 and 2 given at the request of defendant. From this order defendant appealed and argues, first, that the instructions were not erroneous, and, second, that regardless of the point on which the new trial was granted the judgment should be reversed and the cause remanded with directions to enter judgment for defendant, for the reason that plaintiff failed to make a case to go to the jury and the court erred in refusing defendant's request for a peremptory instruction.

The injury of plaintiff occurred after dark in the evening of January 26, 1908, at a place in the town of Waldron near defendant's tracks, which run past the town in a northerly and southerly direction. According to the evidence of plaintiff he was going to the express office maintained in defendant's station to inquire about an express package for his mother, and was walking on a graveled path defendant had laid adjoining and parallel to the east track for the use of those who had business to transact at the station, when he took a step or two aside to avoid a passing train and fell in an unguarded hole defendant had allowed to remain on the east side of the pathway. There was a switch stand at the place where plaintiff stepped aside, and this stand was about four feet from the track and was on the east side of the graveled pathway. Plaintiff, thinking it too dangerous to pass between the moving train and the switch stand proceeded to pass around the outside of the obstruction, not knowing of the presence of the hole, and not being able to see it on account of darkness. Defendant had built a new depot about 250 feet south of the old one, and the point where plaintiff fell was in the space between the two buildings. There is a serious conflict over the question of whether plaintiff was at a place where he could be considered as the invitee of defendant, or was where he could not be regarded in any other light than...