Randolph v. Chicago, Milwaukee & St. Paul Railway Co.
| Decision Date | 15 February 1904 |
| Parties | JENNIE A. RANDOLPH, Respondent, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.
Judgment affirmed.
Charles A. Loomis, Arthur F. Smith and Frank Hagerman for appellant.
(1) The order granting a new trial was in violation of the statute. The ground for granting a new trial is thus shown by the record. Bartley v. Railway, 148 Mo. 124. (2) If upon the pleadings and evidence the verdict was for the right party, no error in giving instructions could justify a new trial. Homuth v. Railway, 129 Mo. 642; Vogg v Railway, 138 Mo. 180; Bartley v. Railway, 148 Mo. 124. (3) Defendant was not negligent. 4 Elliott on Railroads, sec. 1590; Robertson v. Railway, 152 Mo 382; Railway v. Sue, 25 Neb. 772; S. C., 41 N.W 801; 4 Elliott on Railroads, sec. 1641; Hiatt v. Railroad, 96 Iowa 169; S. C., 64 N.W. 766; Laffin v. Railway, 106 N.Y. 136; S. C., 12 N.E. 599; Thompson v. Railway, 140 Mo. 125; Fox v. Mayor, etc., 70 Hun 181; S. C., 24 N.Y.S. 43; Ryan v. Railway, 121 N.Y. 126; S. C. 23 N.E. 1131.
I. N. Watson and W. E. Smith for appellee.
(1) The order granting a new trial was not in violation of the statute. A new trial was granted for errors in giving instructions for defendant. Bartley v. Railroad, 148 Mo. 124. (2) If the evidence of plaintiff showed no negligence on part of defendant, then the case should be reversed, and judgment should be entered for defendant. The rule of law is laid down in Homuth v. Railroad, 129 Mo. 642.
A trial was had in this case and verdict of the jury for defendant. Plaintiff filed a motion for new trial alleging therein among other things that the court erred in giving instructions in behalf of defendant. The court sustained the motion on the ground of error in the giving of instructions without specifying any particular ones. The defendant contends that regardless of any error in that respect the verdict should be upheld on the ground that the evidence shows that it was for the right party.
The plaintiff at night while alighting from defendant's passenger train standing at its station at Excelsior Springs fell and was injured. She testified that when she started down the steps of the car leading to the platform of the station it was dark, and when she got to the bottom step she saw what she thought was a stool and in order not to step over the stool, or onto the edge of it, she took hold of the rail and put her right foot in the center of it, and instead of it being a stool it was a hole between the step and the platform; and that she went down almost to her thigh. She stated that a brakeman had a lantern near by but that its bottom threw a shadow, although the light itself dazzled her eyes. There were lights in the car and in the depot and two on the side of the depot. The place where plaintiff alighted was some distance from the end of the depot. The space between the lower step of the car and that of the platform was ten or twelve inches. There was an effort to show that defendant had maintained in general use platforms with the same space on its road for many years with safety, but the evidence tended to show that there was no uniformity in that respect and that they varied at different stations. It however appears that there must be some such space to guard against collision caused by the oscillation of the cars while in motion. The plaintiff had frequently alighted from defendant's cars on this platform but there was no evidence that her attention had been directed to the width of the space in question. There was no dispute that cars in use on defendant's road differed slightly in width, and consequently the space between the cars and platforms would differ in proportion to differences in widths of the cars. The foreman of defendant's car department testified that for safety it was necessary that said space be not less than from seven to nine inches. On cross-examination he stated that such space could be obviated by the constructing of low platforms and also that the variation caused by the swaying or oscillation of the cars was from three to four inches.
The grounds relied on for recovery was the negligence of the defendant in maintaining its platform too far from its track and in failure to properly light the platform. The evidence as to the latter issue was somewhat conflicting but the preponderance appeared to be in favor of the defendant that the platform was well lighted. As to the space between defendant's platforms and cars, there was no essential conflict in the evidence; and that at stations outside of cities it was the rule of defendant to maintain platforms of the same general character; however, not entirely uniform as to the amount of such space. But there was no evidence that custom in that respect was uniform with other railroads.
A railroad company is only required to keep its platforms in a reasonably safe condition. Robertson v. Railroad, 152 Mo. 382. 4 Elliott on Railroads, sec. 1590.
But these authorities do not reach the question in this case. It was not the safety of the platform as such that is to be considered for there is no complaint on that account. But its construction and maintenance as a means by which a passenger may safely board or alight from the defendant's cars on the track presents a question somewhat different. In Hiatt v. Railway, 96 Iowa 169, it was held that a carrier of passengers was bound to the use of only reasonable care in lighting its platforms for the use of persons going to or from its trains. In Lafflin v. Railway, 106 N.Y. 136, it was held in a case very much like this where the platform had been safely used for many years the defendant was not liable. The effect of the ruling was that the defendant was required to use only ordinary care. The language was: "No structure is ever so made that it may not be made safer; but as a general rule when an appliance, or machine, or structure, not obviously dangerous, has been in daily use for years, and has uniformly proved adequate, safe, and convenient, its use may be continued without the imputation of culpable imprudence or carelessness."
In Hiatt v. Railway, supra, the rule only extends to persons going to or from a train, and is not to be extended to cases where a person is either getting upon or alighting from one....
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