St. Louis, I.M. & S. Ry. Co. v. Leftwich

• Decision Date: 11 August 1902
• Docket Number: 1,716.
• Citation: 117 F. 127
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. LEFTWICH.
• Court: U.S. Court of Appeals — Eighth Circuit

117 F. 127

ST. LOUIS, I. M. & S. RY. CO. v. LEFTWICH.

No. 1,716.

United States Court of Appeals, Eighth Circuit.

August 11, 1902

Syllabus by the Court.

The question whether or not a passenger who had just boarded the smoking car, and was passing through that car, over the platform, to the next coach in the rear, where he intended to ride, was guilty of contributory negligence because he turned aside, grasped the railings on both sides of the steps of the platform of the car, and stepped down upon the upper step for the purpose of expectorating and throwing the contents of his mouth clear of the train, was a question for the jury, and not for the court.

It is only when all reasonable men, in the honest exercise of a fair and impartial judgment, would draw the same conclusion from the facts which condition the issue of negligence or contributory negligence, that it is the duty of the court to withdraw that question from the jury; and it is not clear that all reasonable men would agree that there was any lack of ordinary care in the act of the plaintiff in this case.

A passenger who, without any reasonable cause or excuse, rides on a platform or on the steps of a railway car, or on an engine, or on a hand car, or on a freight or baggage car, or in any other place not designed for the carriage of passengers, is guilty of negligence which may bar his recovery of damages resulting from the concurring negligence of the railway company.

George E. Dodge and B. S. Johnson, for plaintiff in error.

William G. Whipple and Durand Whipple, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District judge.

SANBORN Circuit Judge.

This is an action for damages for a personal injury, and it resulted in a judgment for the plaintiff.

The chief, if not the only, reason why this judgment is assailed by counsel for the railway company, is that, in their opinion, the court below should have instructed the jury as a matter of law that the plaintiff, Leftwich, was guilty of contributory negligence which barred his right to a recovery of the damages he claimed. At the time the injury was inflicted, Leftwich was a young man about 29 years of age. He had served as a switchman and as a brakeman. On the occasion of his injury, he was a passenger on the train of the railway company, which contained two passenger coaches. The forward coach was a combination car divided by a partition into a forward and a rear compartment. The forward compartment was set apart for colored passengers, and the rear compartment was a smoking room. The next coach was a ladies' car. The plaintiff was a white man, and he had the right to ride in the smoking car or in the ladies' car as he chose. The train stopped but one or two minutes at the station where he boarded it, so that it was necessary for him to take it at once when it arrived. It was more convenient for him to ascend the steps at the front end of the smoking car when the train arrived at the station. He did so, and then passed back through this car, and out upon the platform between the two passenger coaches, on his way to the rear coach, where he intended to ride. When he was near the partition in the combination car, the train started. On his way back he coughed up some phlegm, and as he arrived upon the platform of the rear car he turned aside, grasped the railings on each side of the steps, and stepped down upon the upper step for the purpose of so expectorating that he might throw the phlegm clear of the train. As he stepped down upon this step his foot fell upon a mass of woolen rags or waste saturated with oil, used to pack the boxes and oil the bearings of the wheels of railway cars, and commonly called 'dope.' As his foot struck this dope, he slipped, fell to the ground and was injured. There was a spittoon in the coach in which he might have deposited the contents of his mouth. The facts which have been recited are undisputed, and they are all the facts material to the questions presented in this case.

The platforms and steps of railway cars propelled by steam are dangerous places for passengers to ride. They are not provided for that purpose, and passenger coaches generally carry on their doors, or in other conspicuous places, notices that the rules of railway companies forbid the passengers to occupy these places for the purpose of riding upon the trains. Moreover, it is a general rule of law that a passenger who, without any reasonable cause or excuse, rides on a platform or on the steps of the railway car, or on an engine, or on a hand car, or on a freight or baggage car, or in any other place not designed for the carriage of passengers, is guilty of negligence which, if it contributes to an injury that ...