Newcomb v. New York Cent. & H. R. R. Co.

• Decision Date: 20 June 1904
• Citation: 81 S.W. 1069,182 Mo. 687
• Parties: NEWCOMB v. NEW YORK CENT. & H. R. R. CO.
• Court: Missouri Supreme Court

81 S.W. 1069

182 Mo. 687

NEWCOMB v. NEW YORK CENT. & H. R. R. CO.

Supreme Court of Missouri, Division No. 1.

June 20, 1904.

CARRIERS—INJURIES TO PASSENGER—DISMOUNTING FROM MOVING TRAIN—NEGLIGENCE—PROXIMATE CAUSE—CONTRIBUTORY NEGLIGENCE—FAILURE TO DIRECT PASSENGER TO PROPER TRAIN—GREASY PLATFORM—EVIDENCE —WITNESSES—INSTRUCTIONS—HARMLESS ERROR —DAMAGES—EXCESSIVENESS.

1. The sheriff's return of service is conclusive.

2. Under Rev. St. 1899, § 570, authorizing the service of summons on a nonresident corporation by service on any officer or agent, one corporation may be the agent of another corporation for the purpose of service of the summons.

3. Where the petition described defendant as a foreign corporation, it was not necessary for the officer serving the writ to say in his return that the defendant was a foreign corporation.

4. Under Rev. St. 1899, § 570, authorizing service in an action against a foreign corporation by delivering a copy of the writ to any officer or agent in charge of any office or place of business, or, if it have no office or place of business, then to any officer, agent, or employé in any county where such service may be obtained, a return showing service on an agent not in the defendant's place of business, and failing to state that defendant had no office or place of business at which the writ could be served, is defective and may be quashed on motion.

5. An objection to the return of service was waived by answering on the merits, although

the answer also contained an objection to the sufficiency of the return.

6. Whether a person is guilty of negligence in alighting from a slowly moving train just as it is leaving the station is a question for the jury.

7. In an action against a railroad company for injuries to a passenger, alleged to have been caused by slipping on a greasy platform as he was alighting from a slowly moving train, evidence held to justify submission to the jury of the issue of defendant's negligence.

8. Where plaintiff obtained a change of venue on an affidavit that the inhabitants of the city in which the action was brought were prejudiced against him, and on trial testified that when he made the affidavit he honestly believed that he could not get justice in a damage suit in the city, questions as to who he knew to be prejudiced against him were properly excluded.

9. In an action against a railroad company for injuries to a passenger from slipping on a greasy platform, a witness, being asked on direct examination if he noticed grease around where plaintiff was lying, said that there was always more or less grease there, and when asked on cross-examination if he observed oil on the track, planking, or platform, said that it was right along the side of the tracks and on the boards. Held, that a question on redirect examination as to whether witness had any doubt that the substance which he referred to was oil, or some kind of grease, was not objectionable on the ground that it assumed that the witness had previously said that the grease was on the platform.

10. In an action against a railroad company for injuries to a passenger from slipping on a station platform, evidence that shortly after the accident great crowds arrived at and departed from the station without accident was properly excluded.

11. In an action against a railroad company for injuries to a passenger from stepping off a moving train, the petition charged negligence in failing to direct plaintiff what train to take. An instruction stated that if plaintiff got on the wrong train through failure of defendant to have any one there to direct him, being told by a porter on that train that it was the train he desired to take, and afterwards, on further explanation, told that it was not and directed to jump off, etc., he was entitled to recover. Held not objectionable on the ground that it authorized a recovery upon the misdirection of the porter, when the petition alleged a failure to give any direction.

12. The instruction was not objectionable on the ground that it declared the act of the porter to be negligence as a matter of law.

13. In an action against a railroad company for injuries to a passenger, caused by falling on a greasy platform as he was stepping off a train which he had boarded, thinking it the train he wanted, defendant alleged that plaintiff was negligent in stepping off the train while in motion, and also in failing to make proper inquiry as to whether it was his train. The court instructed that, on proof of certain facts, plaintiff was entitled to recover, if not guilty of any want of ordinary care in stepping from the train. In another instruction the two acts pleaded by defendant as contributory negligence were distinctly defined, and in still another the jury were told that, while it was the duty of defendant to furnish plaintiff information to enable him to find his train, it was also his duty to use ordinary diligence to obtain such information, and if defendant furnished such service, and plaintiff failed to avail himself of it, defendant was not responsible for his getting on the wrong train. Held that, taken as a whole, the instruction first quoted was not objectionable as limiting plaintiff's contributory negligence to one of the acts pleaded by the answer, and excluding the question of his negligence in not making proper inquiry for his train.

14. Testimony by plaintiff and a person who was with him, when he was looking for his train, that there were no ushers to direct plaintiff to his train, was sufficient to justify a charge that defendant was liable if it failed to make reasonable arrangements for directing him to his car.

15. Defendant's negligence in failing to direct plaintiff to the right car was not too remote to justify a recovery, since the fact that the danger attendant upon alighting from the train was increased by the further negligent act of the defendant in reference to the condition of the platform did not relieve defendant from liability for its first act of negligence on the ground of remoteness.

16. The failure of a railroad company to keep its station platform in a condition reasonably safe for use by a person stepping from a moving train while in the exercise of ordinary care is negligence.

17. In an action against a railroad company for personal injuries caused by plaintiff's slipping as he stepped from a moving train, it appeared that plaintiff had asked the porter if that was the train to New York, and, on being told that it was, had gotten on, only to discover that it went by a different route from that over which his ticket entitled him to travel, though defendant railroad company operated both routes. On discovering the mistake, the porter told plaintiff to jump off, and in doing so plaintiff slipped on a greasy platform and was injured. Held, that it was proper to instruct that the porter should be regarded as an employé of the company, so far as concerned the rights and duties of plaintiff and defendant towards each other, and that if, after plaintiff discovered he was on the wrong train, the porter told him to jump off, and the train was going at such speed that it was dangerous to do so, plaintiff being unaware of the fact, and not able to learn of it by the exercise of ordinary care, though the porter could by such care have known of the danger, and the porter by such conduct omitted to exercise ordinary care, defendant was guilty of negligence.

18. In an action against a railroad company for personal injuries, defendant alleged that two separate acts of plaintiff each constituted contributory negligence, and an instruction stated that the burden was on defendant to prove them. Other instructions, however, treated the two acts separately, and stated that, if plaintiff was guilty of negligence in either respect, he could not recover. Held, that defendant was not prejudiced by the form of the instruction first quoted.

19. In an action against a railroad company for injuries to a passenger, alleged to have been caused by the negligence of defendant in failing to have servants at a station to direct plaintiff to his train, so that he got on the wrong train, and, in attempting to leave it while in motion, slipped on a platform which defendant had negligently allowed to become greasy, there was evidence in support of both allegations of negligence, and defendant requested an instruction that, if there was no grease at the point where plaintiff fell, his fall was due to some other cause than grease, the verdict must be for defendant. Held, that this instruction was properly modified, so as to state that under such circumstances the verdict must be for defendant "as to this specification of negligence."

20. Plaintiff had the bones of his left leg below the knee crushed, so as to necessitate amputation five or six inches below the knee, after which there was a chronic tendency to ulceration on the inside of the knee, and difficulty in wearing an artificial limb, which compelled him to frequently use crutches, and one surgeon was of the opinion that the ulcerous condition might require another amputation. Plaintiff at the time of trial was 62 years old, and though, before the accident, he had been a man of bright and buoyant spirits, he was thereafter sad and dispirited. Held, that a verdict for $20,000 was excessive, and should be reduced to $10,000.

Appeal from Circuit Court, Lincoln County.

Action by George A. Newcomb against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.

Everett W. Pattison and Norton, Avery & Young, for appellant. Shepard Barclay, Thos. I. Fauntleroy, G. T. Dunn, Chas. Martin, and E. B. Woolfolk, for respondent.

VALLIANT, J.

Plaintiff, in attempting to alight from a moving train within the precincts of the passenger station of defendant railroad company, at Buffalo, N. Y., fell and received injuries to his person. He...