Saxton v. Missouri Pac. Ry. Co.

• Decision Date: 02 March 1903
• Citation: 98 Mo. App. 494,72 S.W. 717
• Parties: SAXTON v. MISSOURI PAC. RY. CO.
• Court: Missouri Court of Appeals

72 S.W. 717

98 Mo. App. 494

SAXTON v. MISSOURI PAC. RY. CO.

Court of Appeals at Kansas City, Missouri.

March 2, 1903.

RAILROADS — NEGLIGENCE — STARTING TRAIN — ORDINARY JERKS — INSTRUCTIONS.

1. Where plaintiff was injured in getting off a car which had started while he was assisting his daughter to a seat, a refusal to instruct the jury that there was nothing in the conversation testified to between himself and his daughter to give notice to defendant's brakeman that he intended to get off after seating his daughter is proper where such instruction did not include the remarks of the brakeman tending to show that he understood that plaintiff was not to go on the train.

2. Plaintiff alleged that while he was assisting his daughter to a seat in defendant's car, intending to then get off, as the brakeman knew, defendant negligently started the train, and when plaintiff reached the platform the train was moving so slowly that he could, without negligence, leave it safely, when, as he was on the lower step, the train was negligently jerked with such violence that he was thrown off and injured. Held, that the refusal to instruct that the starting of the train before plaintiff had alighted was not the proximate cause of the injury was error.

3. There was no evidence that the jerk of the train was other than usual in starting a train under like circumstances, or attributable to anything other than the taking up of the slack Held, that defendant was entitled to an instruction withdrawing the question of negligence as to such jerk of the train from the jury.

Appeal from and error to circuit court, Cass county; W. L. Jarrott, Judge.

Action by E. M. Saxton against the Missouri Pacific Railway Company. From an order sustaining defendant's motion for a new trial after verdict for the plaintiff on one ground, plaintiff appeals, and from the action in overruling the other grounds of the motion defendant brings error. Affirmed.

J. T. Burney and A. A. Whitsitt, for appellant. R. T. Railey, for respondent.

SMITH, P. J.

The plaintiff, a man far advanced in years, his age being three score and twelve, who was presumably under some physical disability, for he was a pensioner of the United States, on July 14, 1896, accompanied by his daughter-in-law and her infant child, came from Louisburg, in the state of Kansas, to Harrisonville, in this state, where the latter intended to take passage on defendant's Joplin train for Webb City. Plaintiff purchased a ticket entitling his daughter-in-law to a passage on said train to the last-named station. On the arrival of the train at Harrisonville he accompanied her into the chair car, and there remained until the train started, and while it was yet moving very slowly he undertook to step off, and in doing so fell upon the platform in such a way that one of the wheels of a car passed over his foot, and crushed it so that amputation became necessary. A few days before the expiration of the three-years period of limitation he brought this action.

There was a trial to a jury, which resulted in a vedict for plaintiff. The defendant filed a motion to set aside the verdict, urging a number of grounds therefor, amongst which was one to the effect that the court erred in refusing defendant's instruction C, which was as follows: "Although Mrs. Saxton, at the time she got upon the platform of defendant's rear coach, may have said, `Father, are you going home this evening?' and although he may have said, `Yes,' yet you are instructed that there was nothing in said conversation to impart notice to defendant's brakeman that plaintiff was not going to take passage upon said train, or that he intended to seat his daughter-in-law, and return after so doing." The court sustained the motion on that ground, and ordered the verdict to be set aside. From this order the plaintiff appealed. The other grounds of the motion were by the court denied, and to obtain a review of this action of the court the defendant sued out a writ of error.

The plaintiff, as appellant, and the defendant, as plaintiff in error, have, by consent, brought before us the entire record, so that the errors complained of on both sides of the case may be considered as if it were here on cross-appeals. In recurring to the plaintiff's complaint that the court erred in setting aside the verdict on the ground that it had improperly refused the defendant's instruction "C" it may be stated that it it is not negligence for a railway passenger carrier to start its train before a person who has entered such train with the intention, merely, "to speed a departing guest," or to assist one who is sick or infirm in getting a seat, has had time to alight therefrom, unless he had communicated this fact to its servant in charge thereof. In such cases the duty is dependent upon the knowledge of the carrier, and the negligence upon the nonperformance of the ascertained duty. Without the presence of these constituent ingredients, there can be no liability. Yarnell v. Ry. Co., 113 Mo. 570, 21 S. W. 1, 18 L. R. A. 599, and authorities there cited; Deming v. Ry. Co., 80 Mo. App. 152, and cases there cited. In order to make out a case of this kind it devolves upon the plaintiff to show that the brakeman was informed by the plaintiff, when he entered the car, that he intended to return. Yarnell v. Ry. Co., ante; Hurt v. Ry. Co., 94 Mo. 255, 7 S. W. 1, 4 Am. St. Rep. 374; Straus v. Ry. Co., 75 Mo. 185. It is obviously proper for a court by an instruction to declare to the jury the legal effect of the evidence. But the difficulty with the defendant's said instruction is that it does not go far enough. The evidence discloses that at the conclusion of the query and the answer set forth in said instruction, that the brakeman, who was present, and standing at the entrance of the chair car, helped the plaintiff's daughter-in-law reach the platform of the car, and then motioned the plaintiff to follow, with the remark "to hurry up." The plaintiff was clearly entitled to have all these utterances, with the circumstances under which they were made, placed before the jury. Such evidence was doubtless sufficient to justify the inference that the brakeman heard and understood the utterances of the plaintiff and his daughter-in-law, and was thereby apprised that the plaintiff did not intend to take passage on the train, but intended to return. This would have constituted notice. To single out a part of what was said and done at the time the plaintiff and his daughter-in-law entered the train was subject to the objection as singling out specific facts in such way as to give them undue prominence. All of the facts involved in the issues should have been mentioned, so as to make the instruction cover the entire case. Meyer v. Railway, 45 Mo. 137; McFadin v. Catron, 120 Mo. 252, 25 S. W. 506; State v. Hibler, 149 Mo. 478, 51 S. W. 85; State v. Rutherford, 152 Mo. 124, 53 S. W. 417. The conclusion, therefore, is that the court erred in ordering the verdict to be set aside on account of its action in refusing defendant's instruction "c."

Turning now to the defendant's complaint in respect to the adverse rulings of the court on the other grounds of its motion for a new trial, and it will be seen that by one of these the question is raised as to whether or not the defendant's negligence in failing to hold its train, as alleged in the petition, was the direct and proximate cause of the injury. The petition, after alleging the plaintiff's entrance into the car, and his return to the platform of the same, contains these further allegations, to wit:

"But upon arriving at the platform aforesaid he discovered that the train had started, and was in slow motion, and was moving slowly and steadily away from said depot, along the platform thereof. Plaintiff thereupon stepped down from the said platform to the lower step of said coach, exercising due care and caution, and was expecting and intending to alight therefrom on the platform of said depot, where there was a convenient place for him to alight from said car, when the same was in slow motion, as it then was, which he could have done without any negligence or carelessness on his part, and without danger of being injured thereby.

"But when plaintiff stepped upon the lower step of said coach, as aforesaid,...