Robinson v. Paragould Southeastern Railroad Company

• Decision Date: 04 June 1908
• Citation: 111 S.W. 827,132 Mo.App. 67
• Parties: ROBINSON, Appellant, v. PARAGOULD SOUTHEASTERN RAILROAD COMPANY, Respondent
• Court: Missouri Court of Appeals

111 S.W. 827

132 Mo.App. 67

ROBINSON, Appellant, v. PARAGOULD SOUTHEASTERN RAILROAD COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

June 4, 1908

Appeal from Dunklin Circuit Court.--Hon. J. L. Fort, Judge.

REVERSED AND REMANDED.

John W Scobey for appellant.

The court erred in sustaining objection to the introduction of evidence under the petition, and dismissing plaintiff's cause of action. Butz v. Construction Co., 199 Mo 280; Murrell v. Railroad, 105 Mo.App. 88; Langan v Railroad, 72 Mo. 392, 180 Mo. 168.

Samuel H. West, Roy F. Britton and J. D. Block for respondent.

(1) Petition does not state a cause of action. The test is "that the petition must state all the facts necessary to prove in order to make out a prima-facie case." Rodgers v. Insurance Co., 186 Mo. 248. The petition herein falls short of this in that: (a) Its allegations do not establish a duty owing to plaintiff by defendant. Loehring v. Const. Co., 118 Mo.App. 163; Frye v Railroad, 200 Mo. 377. (b) The allegations of negligence in placing boxes and cases and of unloading freight are not specific. A general averment of negligence will not suffice. Pattison, Missouri Code Pleading, sec. 421, and cases there cited. (c) It is indefinite and uncertain. (2) The petition on its face shows plaintiff was guilty of contributory negligence, which would bar a recovery. (a) The plaintiff, according to his own allegations, negligently placed himself in a dangerous position and failed to exercise ordinary care. Carroll v. I. R. T. Co., 107 Mo. 653; O'Donnell v. Patton, 117 Mo. 13; Diamond v. Kansas City, 120 Mo.App. 185. (b) And the petition does not aver that defendant's employees knew of plaintiff's perilous position or by the exercise of ordinary care could have known of it in time to prevent his injury. For this reason the cases cited in appellant's brief are not applicable. (c) There is no question for a jury presented by the petition. Hogan v. Railroad, 150 Mo. 36; Davies v. Railroad, 159 Mo. 1; Cahill v. Railroad, 205 Mo. 393.

OPINION

BLAND, P. J.

An amended petition was filed in the case which (omitting caption) is as follows:

"Now comes the plaintiff, leave of court first had and obtained and files this, his amended petition, and for his cause of action states, that the defendant is a corporation duly organized and existing under and by virtue of the law of the State of Arkansas.

"Plaintiff further states that said defendant above named and at all times hereinafter mentioned, was maintaining and operating its line of railroad from Paragould, Arkansas, east, through the south part of Dunklin county, Missouri, and through the town of Cardwell in said Dunklin county, Missouri, and terminating in the State of Arkansas.

"That the duty of said defendant is and was that of a common carrier of passengers, freight and express, delivering same at all points of destination along said railroad.

"Plaintiff says that on or about November 18, 1905, this plaintiff was expecting of this defendant, as such common carrier, to deliver to him at Cardwell, Dunklin county, Missouri, on the above named date, a consignment of express, and that said defendant did deliver to this plaintiff said consignment of express on said date and at said place, and that this plaintiff while in the exercise of his right to go to the office or station of said defendant, as such common carrier, at the town of Cardwell, Dunklin county, Missouri, and while in the exercise of ordinary care on his part, the defendant, by its agents, servants and employees, did carelessly, negligently and without the use of ordinary care on their part, commit a personal injury upon this plaintiff, in the following manner, to-wit:

"That said defendant, by its servants, agents and employees, had negligently and carelessly caused or permitted a great number of boxes or soda cases to be placed on the depot platform, on the part of defendant's premises that was being used as the platform for said depot, and that there being but one depot of said defendant, to be used for passengers, freight and express, and it was necessary for plaintiff in transacting business with defendant, to go to this, the only office and depot of said defendant, in the town of Cardwell, and said boxes and soda cases were placed by said defendant, or permitted by defendant to be placed upon said platform in a careless and negligent manner so as to obstruct said platform.

"Plaintiff further says that on or about November eighteenth, 1905 which was the date of said alleged injury, the defendant, as was its custom, ran a mixed train consisting of passenger coaches and freight cars on which they carried passengers, freight and express to said town of Cardwell, and other points of destination along said line of road, and while the passengers were getting off and aboard said train, the defendant, by its servants, agents and employees stopped a freight car loaded with freight immediately in front of said depot for the purpose of unloading freight, consisting of oils and other merchandise, and said defendant, by its agents, servants and employees, did negligently and carelessly place a long plank in the door on the south side of said freight car door, which was open, and letting the plank extend across the platform of said depot and the other end of same resting in the door of the depot on the north side thereof, forming an incline from...