Rocker v. Deering Southwestern Ry. Co.

Decision Date25 June 1918
Docket NumberNo. 2265.,2265.
PartiesROCKER v. DEERING SOUTHWESTERN RY. CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Pemiscot County; Sterling IL McCarty, Judge.

Action by Mattie Rooker against the Deering Southwestern Railway Company. Judgment for defendant, and plaintiff appeals. Reversed, and remanded for another trial.

Von Mayes, of Hayti, and Jere S. Gossom, of Caruthersville, for appellant. Ward & Reeves, of Caruthersville, for respondent.

FARRINGTON, J.

The plaintiff brought suit, alleging that she purchased a ticket for passage from Caruthersville, Mo., to Blazer, Mo., and became a passenger on defendant's train on February 25, 1917, and that when defendant's servants called and announced the station for which she was bound the train immediately slowed down to a very slow rate of speed, and that while so slowed down and almost completely stopped at the station the plaintiff, in the exercise of ordinary care, for the purpose of alighting from the train, walked out of the car in which she was riding and upon the platform thereof, and while standing there waiting for the train to come to a complete stop so she could alight the servants of the defendant negligently and carelessly caused said train to be suddenly started forward with a violent and sudden jerk, lurch, bound, and forward movement which caused her to be hurled and fall with great force and violence from the car to the ground, and that she was injured by reason of the sudden and violent jerking and lurching of the train. There are other charges of negligence, but the evidence of the plaintiff tends to sustain but the one alleged act of negligence, to wit, the sudden jerking and lurching of the train forward as it was slowing down and had almost come to a stop.

Plaintiff's version of the injury is, in part, as follows:

"I was standing there to get off when they stopped, and they had just slowed down, but they never did stop, and the train gave a sudden jerk and jerked my hand loose and jerked me down on the ground over the steps."

She was asked, "Did you attempt to get off the train while it was moving?" and her answer was, "No, sir; I was standing there hold of that bar." She was asked, "What kind of a movement did the train make that caused you to fall off," and she answered, "It just gave a sudden jerk, and"I was bolding to that rail with my left hand, and had my pocketbook and a little pair of shoes in my right hand."

The defendant's answer was a general denial, and a plea of contributory negligence in which it is alleged that the plaintiff voluntarily and without notice or knowledge of the defendant's agents and servants operating the train jumped off the moving train on which she was a passenger, which act contributed to her injury.

It will be noted that the plaintiff specifically stated the manner in which she was injured and the manner in which the defendant was negligent. Her proof nowhere shows that the defendant was negligent in failing to stop the train a sufficient time for her to alight in safety, nor that it was stopped and was not held for a sufficient length of time for her to alight in safety, nor does it show that she actually left or attempted to leave the platform of the car on which she was standing for the purpose of departing from the train.

The instruction asked by the plaintiff and given squarely put the plaintiff's theory of the injury and the defendant's negligence to the jury, and it was upon the sole theory that while the plaintiff was standing on the platform holding to the rail, the train moving very slowly, it suddenly lurched forward and hurled or threw her off the train. The jury found for the defendant, and the plaintiff appeals, alleging error in instructions given at the instance of the defendant. The same error runs through several instructions, and it Will only be necessary to set out one of the instructions to make clear the point relied upon. Defendant's instruction 4B is as follows:

"The court instructs the jury that no person has the right to voluntarily attempt to get off a train while it is in motion, and if you find and believe from the evidence in this case that plaintiff at the time she attempted to alight from the train in question knew that the same was pulling out of the station or knew that the train was moving, and that she attempted to alight therefrom and was injured, then she cannot recover, even though you may further find that she honestly believed that she could get off with safety."

It has been held as elementary law in Missouri that a plaintiff must stand or fall under the specific charges of negligence alleged. See Northam v. United Rys. Co., 170 S. W. 227, 229, in which a number of cases are cited. And in our case the plaintiff, attempting to recover on the ground that she was negligently jerked off the train, must make out a case on that theory, and the defendant was entitled to an instruction which told the jury that, if the plaintiff, following its charge of contributory negligence, jumped off a moving train, she could not recover. The defendant in this case has evidence tending to show that plaintiff's injury was occasioned by her act in getting off this train while it was still moving, which, if believed, was a direct denial of the plaintiff's charge that she was negligently jerked off. This question is discussed in the case last above cited, and, as there shown, such instruction does not go alone to the question of plaintiff's contributory negligence, but goes to the denial of her right to recover. The question of the rights, obligations, and assumption of risk of those attempting to board moving cars or attempting to get off moving cars has recently been discussed in the case of Gunn v. United Rys. Co., 270 Mo. 517, 193 S. W. 814, L. R. A. 1917D, 1131, and the law in Missouri as there declared is that, if a car fails to stop, and a person desiring to leave the car may refrain from doing so and sue for damages for inconvenience and loss thus suffered, and does not do so, he cannot recover for injuries he may receive caused by the ordinary movement of the car, with the exception of a...

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