Page v. Wabash R. Co., 27306.

• Citation: 206 S.W.2d 691
• Decision Date: 16 December 1947
• Docket Number: No. 27306.,27306.
• Parties: PAGE v. WABASH R. CO.
• Court: Court of Appeal of Missouri (US)

206 S.W.2d 691

PAGE v. WABASH R. CO.

No. 27306.

St. Louis Court of Appeals. Missouri.

December 16, 1947.

Appeal from St. Louis Circuit Court; James E. McLaughlin, Judge.

"Not to be reported in State Reports."

Action by Ida Benton Page against the Wabash Railroad Company, a corporation, to recover for injuries sustained by plaintiff in alleged fall while alighting from defendant's coach. From a judgment for the plaintiff, the defendant appeals.

Judgment affirmed.

Joseph A. McClain, Jr., Oliver J. Miller and Lashly, Lashly, Miller & Clifford, all of St. Louis, for appellant.

Henry D. Espy and Virgil H. Lucas, both of St. Louis, for respondent.

HUGHES, Judge.

Appellant operates a branch railroad from Columbia, Missouri, to Centralia, Missouri, where it connects with the main line of the railroad, and passengers from Columbia to St. Louis are required to change trains at Centralia. On the evening of November 6, 1944, the respondent in company with two other women boarded appellant's train at Columbia to return to their home in St. Louis by way of Centralia. The train was scheduled to leave Columbia at 6:30 p. m., and did start on the run to Centralia at that time. In about 15 minutes after starting engine trouble developed, and the train was stopped while yet in the limits of Columbia and near a round house maintained by appellant, and so that the entrance to the one passenger coach of the train was at Court Street crossing in the city. The conductor went to a nearby house to telephone and endeavor to procure two automobiles in which to have the St. Louis passengers conveyed to Centralia, a distance of about 20 miles, in order to make connection there with one of appellant's St. Louis trains on its main line, in the meantime leaving the brakeman in charge of the passengers. On the conductor's return he directed the brakeman to have the St. Louis passengers leave the train in order to take the automobiles to Centralia. There is some dispute as to the number of St. Louis passengers, the respondent's evidence is that there were seven men and the three women, while appellant's evidence is that there were nine men and the three women. However the number is immaterial, except that only one automobile was sent to the scene, and it was loaded with seven men passengers, and the conductor was unable to procure another automobile to take respondent and her companions to Centralia. Respondent's evidence was that the conductor told all of the St. Louis passengers to leave the coach and they would be conveyed to Centralia by automobile; that the men passengers were in the forward end of the coach and were first to leave it; that respondent and her two companions were at the rear end of the coach, and proceeded to the front end to leave the coach; that, as they afterwards ascertained, the lower step to the coach was from three to three and one half feet above the ground; that it was dark and there was no portable step placed on the ground, and no assistance from the train men to aid the women in leaving the coach; that one of the train men was with the men passengers at an automobile which was at the side of the road some 60 feet away; that this train man was calling to them to "come on;" that respondent stepped off the coach step into space and fell, landing on top of one of her companions who had preceded her and had fallen; that respondent received serious injuries. The conductor was unable to procure another automobile, and the three women were directed to go back to the coach, which they did, and the train was backed to the Columbia station. That respondent was crying and she or one of her companions complained to the train men that she had fallen and was injured and the complaint was ignored. At about 9:30 p. m., another engine was procured, and the train taken on to Centralia, where it arrived about 11 or 12 o'clock p. m., too late for a connecting train to St. Louis before 5 o'clock the next morning. The women remained in the waiting room of the Centralia station, which was unheated, until 5 a. m., when they boarded the St. Louis train arriving in St. Louis about 8 a. m. The man in charge of the Centralia station informed them that there would be no St. Louis train until the next morning and he gave them some medicine or tonic and told them they could remain in the depot waiting room until morning, but that it was not heated. Respondent on reaching her home in St. Louis went to bed and sent for her family doctor. The doctor found her in bed apparently suffering excruciating pains and discomfort; one of her teeth was loose and later came out; she had severe pain in her back; her arms, the right arm especially, was swollen, with bruises or contusions on the right arm, and with limited motion; there were bruises and contused wounds on her thigh and knee, with considerable pain evidenced on motion; there was considerable pain in her abdomen. The doctor saw her every day for several weeks. Respondent developed a severe case of influenza. She has been under the care of her doctor since the injuries occurred, and still suffers pain as a result thereof.

The defendant's evidence, consisted of the testimony of the conductor and brakeman, and a photograph of the coach taken a day or two after the alleged injuries to plaintiff. The testimony of the conductor and brakeman was to the effect that the brakeman was in charge of the passengers, and while the conductor was seeing to the transfer of mail pouches from the train to the automobile, the brakeman was assisting the passengers, including respondent and her two companions, to leave the coach and prepare for the automobile trip to Centralia; that the lower step of the coach was well lighted both by a light in the vestibule of the coach and by the brakeman's lantern, and the lower step from the coach was only about 10 inches higher than the ground; that the brakeman assisted the three women from the coach step to the ground, and none of them fell or were injured, and neither of them complained to either the conductor or brakeman of any fall or injury whatever.

From this inconsistent and irreconcilable testimony only one conclusion could be drawn; either the testimony of the three women was false, or the testimony of the brakeman and conductor was false. It is significant that the brakeman in charge of the passengers said that he did not see respondent fall, and he and the conductor both said that they did not know any one had fallen, while the three women all say that the man in charge of the Centralia station did observe that the women were in distress and gave them medicine or tonic, and the following day the doctor found plaintiff suffering from many bruises and contusions; and more significant is the evidence that the next day, or the day following, the conductor, who said he did not know that any accident had occurred, assisted in placing the coach over the Court Street crossing in order that a photograph be taken. However, the inconsistency between the testimony of appellant and respondent was a matter to be resolved by the jury under appropriate instructions by the court. The jury believed the three women and returned a verdict in favor of respondent.

The difficulty in the case arises from the pleadings and the court's instructions to the jury. The appellant is not an insurer of the safety of the passengers; nevertheless, the law places the obligation upon a carrier of passengers to exercise high care at all times for their safety, and whether it has exercised such care in a particular case is to be determined from a consideration of the facts with relation to the case which is being tried. The relation of passenger and carrier continues until the passenger has alighted from the car, and obtains with respect to the safety of the steps provided for the exit of passengers. Craig v. United Rys. Co., 175 Mo. App. 616, 158 S.W. 390; Jones v. Kurn, 237 Mo.App. 657, 157 S.W.2d 797; Taylor v. Missouri Pac. R. Co., 311 Mo. 604, 279 S.W. 115.

The petition alleged negligence as follows:

"1. That the defendant, its agents, servants and employees in charge of said train knew or by the exercise of the highest degree of care should have known that the place they required plaintiff to alight from said train was unsafe, in that, the step was not stationary not high enough and would turn if weight was placed on it, but they carelessly and negligently ordered her to alight from said train at said place.

"2. The defendant, its agents, servants and employees in charge of said train carelessly and negligently failed to provide a suitable place for plaintiff to alight from said train, in that, it was dark and plaintiff was unable to see; that the defendant failed to furnish a light of any kind for plaintiff to see by, but carelessly and negligently required her to alight from said coach at said unfit and improper place."

It will be noted that the first charge of negligence was based on the theory that a portable step or step box was provided for respondent to use in leaving the coach but that it was not stationary or high enough and would turn if weight was placed on it. There was a total failure of proof by respondent to sustain that charge of negligence.

The second charge of negligence was a general charge of failure to provide a safe place for plaintiff to alight from the train, without specifying why it was unsafe except that it was not lighted, and would be sufficient after verdict, if the evidence was sufficient to show a failure on the carrier's part to use the care required of it to protect the safety of its passengers when alighting from the coach. Especially is this true under the broad provisions of section 82 of the Civil Code of Missouri, Laws 1943, p. 378, Mo.R.S.A. § 847.82, that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. The...