Straus v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Citation: 75 Mo. 185
• Parties: STRAUS v. THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.
• Decision Date: 31 October 1881
• Court: United States State Supreme Court of Missouri

75 Mo. 185

STRAUS

v.THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

REVERSED.

Willard P. Hall and Strong & Mosman for appellants, cited Nelson v. R. R. Co., 68 Mo. 596; Rains v. R'y Co, 71 Mo. 164; Moody v. R. R. Co., 68 Mo. 470.

Woodson & Crosby for respondent.

HOUGH, J.

In this action the plaintiff claimed damages in the sum of $5,000 for injuries received by him in attempting to alight, at a way station on the defendant's road, from a train of the defendant on which he was a passenger. The petition alleges in substance, that immediately upon the stopping of said train at Pickering station, which was plaintiff's destination, the plaintiff, with all convenient haste, but in the exercise of due care, attempted to leave the train, and while in the act of stepping from the train upon the platform at the depot, and before he had sufficient time to get upon said platform, said train was negligently and recklessly started on its way by the servants in charge thereof, whereby plaintiff was thrown down between said platform and the moving train and was tightly and violently compressed between the same and thereby severely bruised and injured. The answer of the defendant denied all negligence on the part of its servants, and averred that the injuries complained of resulted from plaintiff's own negligence.

The testimony of several witnesses for the plaintiff tended to support the allegations of the petition. The plaintiff himself testified as follows: “On the 26th day of November, 1877, I was a passenger on the defendant's train going to Pickering. Had bought a ticket from St. Joseph to Pickering. Just as the train whistled for Pickering, I got up from my seat and went to the door of the car. When it stopped I opened the door and started out, and car started just as I was in the act of getting off, with a sudden jerk, and I was thrown down between the car and the platform, and rolled around till I got to the end of the platform. I suffered a great deal for two or three weeks--I might say agony--laid on my back for six weeks. My back is injured to the present day. I was unable to do any work until after the 1st day of January, 1878. Changes in the weather affect me more or less. I feel them, and am not as strong as I used to be. My back is weak. I can't lift as I used to be able to.”

Several witnesses testified that the plaintiff told them a short time after the accident, that he had been traveling on trains so much that he had become careless; that he did not notice that the train was moving, and got off backwards, and that nobody was to blame for his getting hurt but himself. Other witnesses testified that the defendant told them that the conductor was not to blame. The plaintiff, on his cross-examination, admitted that he stated to several persons that the conductor was not to blame, but said he so stated because he did not wish to get the conductor into trouble. But he denied that he ever stated to any one, that no one was to blame but himself. The conductor testified as follows: “The train stopped still. The stop was for at least one-half a minute. We stopped the usual length of time for stops at stations at which no business is to be transacted. After the train stopped I walked out on the depot platform, walked across to the corner of the depot and leaned up against the building a few seconds. * * As I went across the platform to the depot, I looked to the left over my shoulder toward the rear of the train and saw the plaintiff coming down the steps of the car. I leaned against the depot a few seconds, and then gave the signal to the engineer to go ahead, and walked across the platform to the door of the baggage car, and went in. I went into the same door I came out of; went back into the same car. The car had not started when I went into it.” The station agent at Pickering testified, in substance, that after the train stopped, he walked from his office across the platform to the train, got his mail from the train, and returned to the office door before the train started. He saw the plaintiff standing on the car platform looking through the door into the car, and saw him, after the train started, step off the car with the wrong foot, which whirled him around and off his feet.

At the request of the plaintiff, the court gave the following instructions: 1. “The court instructs the jury if they believe from the evidence that the plaintiff was, at the time stated in his petition, a passenger on defendant's train with a ticket from St. Joseph to Pickering, that said train did not stop long enough at Pickering to give plaintiff reasonable time to pass from his seat in the car to the station platform, and that plaintiff, by reason of the starting of the train while he (plaintiff) was in the act of stepping from the car, was thrown down between it and the station platform, and injured, without negligence on his part, they will find for plaintiff, and assess his damages at such sum, not exceeding $5,000, as they may deem a reasonable compensation for the injuries sustained by him.”

3. “That if the jury believe from the evidence that the conductor of the train saw plaintiff standing on the car platform, and knew that he wished to stop at Pickering, but without noticing or waiting to see whether he got off or not, gave a signal for starting the train, and the train was started while the plaintiff was in the act of stepping off, by reason of which starting plaintiff was thrown down and injured, they will find for the plaintiff.”

7. “That if the jury find for the plaintiff, they will, in estimating the damages, take into consideration the age and situation of plaintiff, his bodily and mental anguish resulting from the injury received, the actual expenses to which he has been subjected by reason thereof, the loss from not being able to work, and the extent to which his ability to earn a livelihood...