Stafford v. Hannibal & St. J.R. Co.

• Decision Date: 24 May 1886
• Citation: 22 Mo.App. 333
• Parties: EDWARD S. STAFFORD, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Kansas Court of Appeals

22 Mo.App. 333

EDWARD S. STAFFORD, Respondent, v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 24, 1886

APPEAL from Livingston Circuit Court, HON. JAMES M. DAVIS, Judge.

Affirmed.

Statement of case by the court.

This is an action to recover damages for personal injuries sustained by plaintiff, a passenger on defendant's railroad train in leaving its station at Chillicothe, Missouri. The facts in substance, are that plaintiff was a passenger on one of defendant's trains of cars, to be carried for hire to its station at Chillicothe. The train was due at this station at eleven o'clock p. m.; but did not arrive until 11:30 p m.

The plaintiff lived at Chillicothe, and was familiar with the station and its surroundings. The night was unusually dark so much so that one could not well see his way without the aid of a light. The train came from the east, going west, stopping on the south side of the depot. In order to go home, which was the usual traveled way for passengers leaving the depot to go up town, he had to pass west along the platform until he reached the southwest corner of the depot building, then, turning north, he had to pass along the west side of the building along the platform to the northwest corner. The platform here was three feet from the ground, and in order to reach the ground he had to pass down a narrow stairway or flight of steps.

The platform on the south side was lower than along the west side, so that in passing from the south to the west side he ascended a flight of steps. There were no railings, or other barriers along the outer edge of the platform on the west side. A lamp was usually kept burning at the northwest corner of the depot building to light the west platform and the steps descending therefrom, down which the plaintiff had to pass. But this lamp was not lighted that night, nor did the defendant have any other light which fell upon this platform and the steps at the northwest corner. There were some hacks standing on the west side, which had lamps, but the evidence quiet clearly showed that they gave no light at the steps in question, at the time of the accident. The platform and steps were covered with ice.

On alighting from the train, the plaintiff started for his home, and, passing from the south side, up the steps to the west side, he approached the steps, and, supposing he had reached them, stepped to go on them, when he fell to the ground, crippling him in his foot and ankle, and otherwise slightly bruising his body.

The negligence imputed to the defendant in the petition, was the improper construction of the platform, the failure to erect and maintain any railing or other barrier to prevent persons from stepping or falling from the platform in the night time, and the failure to have any light at the place of injury.

The answer, after tendering the general issue, pleaded contributory negligence on the part of plaintiff.

On behalf of plaintiff the court gave the following instructions:

" 1. If the jury believe from the evidence that on the night of December 29, 1883, the defendant's passenger train arrived at its depot in Chillicothe, and that plaintiff came to Chillicothe on said train as a passenger for hire, and alighted therefrom at said depot, and that, at the time of the arrival of said train, the night was dark, and that defendant's said depot was surrounded by a platform which was some three feet higher than the ground, and that no railing or other barrier had been constructed or maintained around the edge of said platform to keep persons having business thereon from walking off or falling therefrom, and that it was the way furnished by defendant for persons to go to and from their trains, and that it was the custom and habit of persons getting off of and upon defendant's trains at said depot to pass over and across said platform, and that defendant and its servants well knew that it was so used, and that, at the time the said train arrived and the plaintiff alighted therefrom and upon said platform, the defendant's servants failed and neglected to have such lights on said platform as were necessary on account of the darkness of the night, and the character and condition of said platform, to enable persons arriving on defendant's said trains to pass in safety from said platform, and that plaintiff, in passing from said train across said platform, and without fault on his part, walked off of or fell from the same, and was thereby injured, then the jury will find for the plaintiff and assess his damages at such sum as they shall believe from the evidence he is entitled to receive, not exceeding $5,000."

" 2. If the jury find from the evidence that, on the night of December 29, 1883, defendant's passenger train arrived at defendant's depot at Chillicothe, Missouri, and that plainfiff came to Chillicothe as a passenger for hire on said train and alighted therefrom, and that, on the arrival of said train, the night was dark and defendant's servants had failed to have the platfrom there surrounding its depot properly lighted up, so as to enable passengers arriving by said train to pass safely over said platform from said train, and that said platform had been negligently and improperly constructed for the purposes of a platform for a passenger depot, and for the use of passengers getting off and upon its trains at said depot at such time, and that plaintiff, in passing from said train across said platform on his way home, and over that part of said platform used by persons in getting off and upon defendant's trains at said depot, without fault upon his part, and because of the failure of defendant's servants to have said platform lighted up, and the negligent and improper construction of said platform, walked off or fell from said platform, and was thereby injured, the jury will find for plaintiff and assess his damages at such sum as he may be entitled to receive, under the evidence in the case, not exceeding $5,000."

" 3. If the jury find for plaintiff, they may, in determining the damages plaintiff has sustained, take into consideration all the evidence in the case as to the character and extent of the injuries he may have received, the bodily pain he may have undergone by reason thereof, the time lost, if any, on account of the same, and the result of said injuries upon the use of the limb injured, and assess his damages at such sum as they find he is entitled to receive, under the evidence in the case, not exceeding $5,000."

On the part of defendant, the court instructed the jury as follows:

" 2. The jury are instructed that the failure of defendant to have a railing around the depot platform at the place of the injury was not negligence."

" 3. If the jury believe from the evidence that that part of the platform in proof where the injury occurred was sufficiently lighted by defendant and others to enable a party using due care to avoid such an accident as the one sued for, they must find for defendant."

" 4. By due care, as used in the foregoing instruction, is meant such care as an ordinarily prudent man would exercise under the circumstances, as detailed by witnesses, including the darkness of the night, the height of the platforms from the ground, and the slippery condition of the platform caused by snow and ice."

The court refused to instruct, as requested by defendant, to the effect that if plaintiff could have passed safely from the depot by another way known to him, he could not recover.

The jury returned a verdict for plaintiff, assessing his damages at four hundred and fifty dollars. Defendant appealed.

STRONG & MOSMAN, for the appellant.

I. The first instruction given for plaintiff and the second given for defendant are in direct and irreconcilaable conflict. For this, the judgment should be reversed. Stevenson v. Hancock, 72 Mo. 614; Price v. Railroad, 77 Mo. 512; Goetz v. Railroad, 50 Mo. 474; Thomas v. Babb, 45 Mo. 388. So the said first instruction assumed the failure to erect railing was negligence, as matter of law. It is error for the court to assume a fact that the jury ought to determine. Staples v. Canton, 69 Mo. 593; Loewer v. Sedalia, 77 Mo. 431. So, the said first instruction subjected defendant to a higher degree of care for plaintiff's safety than is imposed by the law, under the facts in evidence. Loewer v. Sedalia, 77 Mo. 437; Imhaff v. Railroad, 20 Wis. 347; Waller v. Railroad, 83 Mo. 608; Strauss v. Railroad, 75 Mo. 190.

II. Plaintiff's second instruction is in direct conflict with the second instruction given for defendant. Cases cited, supra, under I; Bank v. Armstrong, 62 Mo. 59; Waldhier v. Railroad, 71 Mo. 471; Price v. Railroad, 72 Mo. 414. It permitted recovery on an issue which was withdrawn from the jury; and stood as though that issue had not been made in the pleadings. Hassett v. Ruet, 64 Mo. 325. It did not (nor did any of the instructions) define or submit the facts which constitute contributory negligence pleaded in defences. Harrison v. Railroad, 74 Mo. 369. Nor the facts which constitute " a negligent and improper construction of said platform." Harrison case, supra. It referred the jury to the pleadings, which was error. Eidleman v. Transfer Co., 3 Mo.App. 503.

III. The petition did not state facts sufficient to constitute a cause of action, in that it disclosed and averred such facts as constituted contributory negligence of plaintiff. And the court erred in overruling defendant's objection to evidence, and defendant's motion in arrest. Centralia v. Krause, 64 Ill. 19; Durkin v Troy, 61 Barb. (N. Y.) 437; Parkhill v. Brighton, 61 Iowa 103; Corlett v. Leavenworth, 27 Kan. 675. The court erred in overruling motion for new trial. Plaintiff's evidence showed...