Smith v. Chicago & A. R. Co.

• Decision Date: 22 December 1891
• Citation: 108 Mo. 243,18 S.W. 971
• Court: Missouri Supreme Court
• Parties: SMITH v. CHICAGO & A. R. CO.

18 S.W. 971

108 Mo. 243

SMITH v. CHICAGO & A. R. CO.

Supreme Court of Missouri, Division No. 1.

December 22, 1891.

CARRIERS — INJURIES TO PASSENGERS — EVIDENCE — DEGREE OF CARE.

1. Where, in a suit by a passenger against a railroad company for personal injuries, it appears that plaintiff was told by the porter of the train to go forward two cars at the next station, and that, after plaintiff started to go forward, the train started, jerking her off the platform, such starting of the train constitutes negligence on the part of defendant.

2. The statement of plaintiff's son, made just after his mother had fallen off, that she jumped off, is inadmissible when the boy denies making the statement, and testifies that he did not see his mother fall.

3. An instruction that the law imposes the "utmost" care on a common carrier of passengers, though not the most preferable form, is not erroneous, where followed by an instruction that the carrier is not an insurer of the safety of passengers, and that negligence on its part must be shown.

4. Where the petition claims $200 for medical services and debts contracted on account of plaintiff's injuries, but there is no evidence of the amount of the physicians' charges, nor as to any other expenses incurred, an instruction that in assessing plaintiff's damages the jury will consider her "expenditure of money, pain," etc., is erroneous, and a judgment for plaintiff will be reversed.

Appeal from circuit court, Howard county; G. H. BURCKHARDT, Judge.

Suit for personal injuries by Georgia Smith against the Chicago & Alton Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

Geo. Robertson, for appellant. P. S Rader and T. S. Dines, for respondent.

BLACK, J.

The defendant prosecutes this appeal from a judgment in favor of the plaintiff, rendered in a personal damage suit. Plaintiff is a married woman, of the age of 45 years. She and her son, 15 years of age, became passengers at Odessa for Higbee on the defendant's morning train. A hundred or more persons got on the train at the first-named place for an intermediate station, so that the local cars were crowded. Several witnesses testify that the conductor of the train directed the plaintiff and her son to get in a rear coach, designed for through passengers, and it is an undisputed fact that they took a seat in the front end of the rear car. She had in her hands a long paste-board shoe box and a small hand-satchel, and the boy had in his care a hand-valise and a small paper box. The conductor told the porter of the car where she would get off, and the porter had a conversation with her before she reached Yates, which was the station next west of Higbee; but there is much conflict in the evidence as to what he said to her. Her evidence is to the following effect: "The porter passed through the car, and stopped at the door. He and the conductor had a conversation. He then came to me and said: `The next time the train stops, that will be at Yates. You cannot reach the platform from this car. You go in the car two cars ahead of this, or you cannot get out.' The porter gave me that direction, and I supposed it was an order from the conductor." She says she and her son got up and started forward as soon as the train stopped at Yates; that her son went out on the platform first and one of the two doors closed; that she opened it as quick as she could; that she got out on the platform, and just as she stepped on it the car started, and she fell off head foremost. She says, "I suppose it was the jerk of the cars;" and again, "I was jerked off, and rolled down in a ditch." The boy says the porter told them to go two coaches ahead when they got to Yates. There is much evidence to the effect that the train stopped at Yates but a few seconds, not long enough to enable persons to pass through two coaches, and that plaintiff and her son started forward as soon as the cars stopped. The porter says it was his duty to assist ladies, children, and infirm persons on and off the cars; that he told plaintiff the car she was in would not reach the platform at Higbee, and before they reached that place he would assist her in going forward two coaches, so that she could get off on the platform. There is other evidence tending to show that the car began to move before she left her seat; that she was found one-fourth of a mile beyond the platform at Yates; and that she said she got dizzy while on the platform. Before the accident she was a stout woman, and made a living for herself and son as a seamstress, earning about $20 per month. Though no bones were broken, she received several wounds, and since that time has not had the full use of one leg and arm, and still suffers much, and is able to perform but little work. The verdict was for $3,000.

1. If the defendant's servants directed the plaintiff to move to the third car forward of the one in which she was sitting as soon as the train stopped, and she undertook to obey the order, it devolved upon her to use ordinary care and diligence, considering her age, sex, and surroundings. On the other hand, it became the duty of the defendant to stop the train long enough to enable her to go to the car to which she had been directed, by the use of the care and diligence before mentioned; and a failure on the part of defendant to stop the cars for such a length of time was breach of duty to her, entitling her to recover damages for the injuries occasioned thereby. These principles are all embraced in ...