Rearden v. St. Louis & San Francisco Railroad Company

• Decision Date: 15 December 1908
• Citation: 114 S.W. 961,215 Mo. 105
• Parties: FRANK L. REARDEN, Administrator Estate of HELEN M. QUIN, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

114 S.W. 961

215 Mo. 105

FRANK L. REARDEN, Administrator Estate of HELEN M. QUIN, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

December 15, 1908

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Affirmed.

W. F Evans, J. G. Egan and E. T. Miller for appellant.

(1) Plaintiff was negligent and her negligence should have barred a recovery. Eckerd v. Railroad, 70 Iowa 353; Railroad v. Dingman, 1 Ill.App. 162; Plant v Railroad, 21 Law Times Rep. 836; Railroad v. Ricketts, 96 Ky. 44; Reed v. Axtell, 84 Va. 231; Railroad v. Keith, 22 Ky. L. R. 593, 58 S.W. 468; Railroad v. Aldridge, 27 Ind.App. 498; Railroad v. Davidson, 64 F. 306; Bennett v. Railroad, 57 Conn. 422; Sargent v. Railroad, 114 Mo. 356. (2) Defendant was required to exercise only ordinary care as to its platform and station grounds. Robertson v. Railroad, 152 Mo. 388; Kelly v. Railroad, 112 N.Y. 443; Laflin v. Railroad, 106 N.Y. 139; Hiatt v. Railroad, 96 Iowa 169; Waller v. Railroad, 59 Mo.App. 410; Moreland v. Railroad, 141 Mass. 31; Johnson v. Railroad, 52 Hun 111; Rigg v. Railroad, 12 Jurist (N. S.), Part I, 525; Taylor v. Penn. Co., 50 F. 755; Penn. Co. v. Marion, 104 Ind. 239; Falls v. Railroad, 97 Cal. 114; Stokes v. Railroad, 107 N.C. 178; Race v. Union Ferry Co., 138 N.Y. 644; Glenn v. Railroad, 73 N.E. 861; Thompson on Carriers, pp. 104, 105; 4 Elliott on Railroads, sec. 1590; 2 Hutchinson on Carriers (3 Ed.), sec. 941; Ray on Negligence of Imposed Duties -- Passenger Carriers, pp. 94, 96, 97; 2 Shearman & Redfield on Negligence (5 Ed.), sec. 501. (3) Where the petition alleges specific injuries, evidence of other injuries should not be permitted to be introduced. Slaughter v. Railroad, 116 Mo. 275; Arnold v. City of Maryville, 110 Mo.App. 259. (4) Although no objection was made to the question concerning the injury to plaintiff's leg, the motion to strike out her testimony on this point properly saved the question. Barr v. Kansas City, 121 Mo. 29. (5) A specific instruction that plaintiff was negligent, covering facts which can be found from the evidence showing the plaintiff was negligent, should be given to the jury. Van Horn v. Railroad, 198 Mo. 494; Hartman v. Railroad, 112 Mo.App. 446. (6) The opinion of a non-expert witness concerning the health of another should not be admitted in evidence. Railroad v. Christian, 124 Pa. St. 114; Boies v. McAlester, 12 Me. 308; Thompson v. Bertrand, 23 Ark. 730; Bell v. Morrisett, 51 N.C. 178; State v. David, 131 Mo. 395. (7) The opinion of a non-expert witness that another suffers or will suffer from a specific disease is incompetent. U. B. Mutual Aid Society v. O'Hara, 120 Pa. St. 256. (8) Even a physician who has examined a patient is not allowed to give an opinion concerning the condition of the plaintiff's health without first detailing the facts discovered by the examination. Reid v. Ins. Co., 58 Mo. 425.

Geo. D. Reynolds and Geo. V. Reynolds for respondent.

(1) When the defendant by his own negligence or wrongful acts or omissions throws plaintiff off his guard, or when the plaintiff acts in a given instance upon a reasonable supposition of safety induced by the defendant when there is in reality danger to which plaintiff is exposing himself in a way and to an extent which, but for the defendant's inducement, might be imputed to the plaintiff as negligence sufficient to prevent a recovery, such conduct on the part of plaintiff, so induced, will not constitute contributory negligence in law and the defendant will not be heard to say that the plaintiff's conduct under such circumstances is negligence for the purpose of a defense to the action. Beach on Contributory Negligence, p. 173, and sec. 23, p. 71; McGee v. Railroad, 92 Mo. 208; Leslie v. Railroad, 88 Mo. 50; Railroad v. Buck's Admrs., 96 Ind. 347; Eichorn v. Railroad, 130 Mo. 587; Fillingham v. Railroad, 102 Mo.App. 573; Talbot v. Railroad, 72 Mo.App. 291. (2) The contract between a carrier and a passenger continues not only during the interval of time consumed in transporting the passenger from his starting point to destination, but during the period needed for a safe exit from the vehicle, and includes the providing of a safe landing place for the passenger. Hutchinson on Carriers (2 Ed.), sec. 612; Kelly v. Railroad, 70 Mo. 604; Straus v. Railroad, 75 Mo. 185; Hart v. Railroad, 94 Mo. 255; McKimble v. Railroad, 139 Mass. 542; Railroad v. McCaffrey, 173 Ill. 169; Fillingham v. Railroad, 102 Mo.App. 573. (3) The carrier is bound to exercise care in securing the safety of the passenger while boarding and alighting from its cars or other conveyances, and the degree of care required in the discharge of this duty is the highest care or the care which a very prudent person would have used under the circumstances. That is, that high degree of care which is required with reference to the transportation of passengers. 6 Am. & Eng. Ency. Law and Procedure, 611; Weber v. Railroad, 100 Mo. 194; Grace v. Railroad, 156 Mo. 295; Kelly v. Railroad, 70 Mo. 604; Atkinson v. Railroad, 90 Mo.App. 489; Fillingham v. Railroad, 102 Mo.App. 582. (4) The rule above is to be distinguished from the one holding a carrier only for lack of ordinary diligence in respect to platforms or approaches, in actions for injuries resulting before the relation of carrier and passenger began and after it ended. Cobb v. Railroad, 149 Mo. 150; Kelly v. Railroad, 112 N.Y. 443; Fillingham v. Railroad, 102 Mo.App. 473. (5) A witness may state the apparent physical condition of a man as the existence of the state of apparent health or on the other hand the existence of apparent sickness. State v. Harris, 150 Mo. 56; 17 Am. & Eng. Ency. Law and Procedure, 87. (6) A variance between the pleadings and the proof as to the nature of the injury, if not substantial, will not prevent a recovery. 29 Am. & Eng. Ency. Law and Procedure, 589; Smiley v. Railroad, 160 Mo. 637; Railroad v. Cuinely, 26 Ill.App. 173. (7) Where a party makes no objection to the admission of testimony, it is too late afterwards to move its exclusion. Roe v. Bank of Versailles, 167 Mo. 406; State v. Forsha, 190 Mo. 326. (8) Evidence of bodily injuries received by a plaintiff in a wreck resulting from defendant's negligence is admissible under a general averment of injury to the body. Wilbur v. Railroad, 110 Mo.App. 693.

GANTT, J. Fox, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

This action was begun by Mrs. Helen M. Quin in the circuit court of the city of St. Louis in 1905. She recovered judgment and the defendant appealed to this court. On July 14, 1908, the death of Mrs. Quin was suggested in this court and regular steps were taken and the cause was revived in the name of Mr. Rearden as her administrator.

The plaintiff in substance stated that the defendant was a railroad corporation and a common carrier of passengers in the State of Missouri; that on the 20th of November, 1903 she became a passenger upon the defendant's road, having purchased a ticket entitling her to a first class passage on defendant's road from St. Louis to a station called Lindenwood; that on arriving at said Lindenwood, defendant did not stop its train at a stopping place where it was safe for plaintiff to alight, but on the contrary at a place where it was unsafe and dangerous; that before reaching said stopping place Lindenwood was announced by the defendant's servants and agents in charge of said train, thereby inviting the plaintiff to get off when and where the train should stop; that the night was dark, and plaintiff could not for that reason see the danger; there was no light at the end of the car at which plaintiff attempted to alight, and none of defendant's servants present who could or might have seen and warned plaintiff of the dangerous surroundings; plaintiff in attempting to alight, in the usual manner and by the usual means ordinarily employed by passengers on defendant's train, fell by reason of the fact that there was no safe place or platform upon which plaintiff might alight, and which plaintiff had the right to assume was there; the ground between the track and the station was being excavated, was rough and an unsafe place upon which to alight and the distance to the ground was greater than the distance to the platform ordinarily used by the defendant at its said station by reason of the fact that the defendant was lowering its tracks and had run the train upon which plaintiff was injured into said Lindenwood Station over a temporary track. Plaintiff in attempting to alight stepped down expecting to alight upon a platform, and there not being one there, she was precipitated with great force to the ground, being thrown suddenly and violently into the excavated ground alongside of the track; that by said fall plaintiff was severely and permanently injured in this, to-wit: her left side was hurt, wrenched and strained; her right arm hurt; the back of her head hurt; her neck and spine strained, hurt and wrenched; and her nervous system greatly shocked and permanently injured. She averred that she had suffered great pain and mental anguish and would continue to suffer the same in the future; that for four months plaintiff was confined to her bed, and that she has never since the date of the accident, and is not now able to attend to her household duties, which she always was able to and had done before then. The petition then alleges that said injuries were caused by the negligence of the defendant and its agents and servants in not providing a platform or safe place for plaintiff, a passenger, to alight upon, and by the negligence of the defendant, its agents and servants in running its train over a temporary track and stopping it in an unsafe place,...