Missouri, K. & T. Ry. Co. v. Turley, 886.

• Decision Date: 03 January 1898
• Docket Number: 886.
• Citation: 85 F. 369
• Parties: MISSOURI, K. & T. RY. CO. v. TURLEY.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F. 369

MISSOURI, K. & T. RY. CO. v. TURLEY.

No. 886.

United States Court of Appeals, Eighth Circuit.

January 3, 1898

Clifford L. Jackson, for plaintiff in error.

R Sarlls, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District judge.

PHILIPS District Judge.

This is an action to recover damages for personal injuries, and arises on the following state of facts: At South McAlester in the Indian Territory, the defendant railway company plaintiff in error, maintained a platform for the use of passengers. The village then was small, and the travel at that point so little that it did not, in the judgment of the company, justify the erection of a depot building, or the keeping of a station agent. No tickets were sold, and through trains did not even stop there. The railroad track at this platform ran north and south. No railing was placed around the platform, and no lights were maintained there by the company. The plaintiff, accompanied by her sister, came to this platform on the night of January 30, 1892, to take passage on the south-bound train, due at 12 o'clock. The following are the specific allegations of the petition descriptive of the accident:

'That it was misting rain, and very dark, and, not being acquainted with said platform and surroundings, and not knowing its manner of construction, being a stranger in said town, and not being able to see the ground from the edge of the platform, and believing the platform to be the same elevation from the ground on the east side as it was on the west side, where she approached the same, she stepped off of the east side of the platform with the intention of sitting down on the edge of the same, and fell, and was seriously injured. * * * That said platform is about eight feet wide, nearly level with the track on the west side, and about four feet high on the east side, where the plaintiff fell off the same, and extended at the time of said injury from the crossing of the Choctaw Railway to within about fifty feet of the street or road crossing in said town, a distance of about eighty yards, and was very high from the ground on the north end. That there was no steps to said platform. That the only practically accessible way of getting upon the same was to approach it from the west side. * * * That there was no railing on said platform, nor light at or about said platform or station, nor watchman or other person to guide or give warning, nor any provision whatever for her guidance and safety, or to enable her to see or know the danger and prevent her injury.'

On this petition plaintiff recovered judgment in the trial court, which judgment was affirmed, after a remittitur, by the court of appeals in the Indian Territory, from which judgment the railway company has sued out a writ of error to this court. 37 S.W. 52.

No cause of action is predicable of such state of facts, for the obvious reason that it discloses the most palpable contributory negligence on the part of plaintiff. The substantive effect of the statement is that a stranger, unfamiliar with the surroundings of the platform, without lights or a guide, knowing it was not guarded by railing, when it was 'misting rain, and very dark,' purposely went to the edge of the platform, unfamiliar to her, to sit down on its edge; and without inquiry, or any precautionary examination, stepped off in the darkness of the night, on the bare assumption that the ground was, as where she entered upon the platform, level with the platform. To permit a recovery on such facts would be to annihilate the established doctrine of contributory negligence. As said by Mr. Justice Field in Little v. Hackett, 116 U.S. 371, 6 Sup.Ct. 391:

'That one cannot recover damages for an injury to the commission of which he has directly contributed, is a rule of established law, and a principle of common justice. And it matters not whether contribution consists in his participation in the direct cause of the injury, or in his omission of duties, which, if performed, would have prevented it. If his fault, whether by omission or commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong.'

While the ground of recovery can be no other nor broader than that alleged in the petition, the plaintiff's testimony does not cure the fatal infirmity of this petition. While waiting for the...