Swigert v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1882
• Citation: 75 Mo. 475
• Parties: SWIGERT v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

75 Mo. 475

SWIGERT

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Linn Court of Common Pleas.--The case was tried before CHAS. L. DOBSON, ESQ., sitting as Special Judge.

REVERSED.

Geo. W. Easley for appellant.

Huston & Brownlee for respondent.

HOUGH, J.

This is an action to recover damages for personal injuries received by the plaintiff in attempting to board one of the defendant's passenger trains. The petition alleges: That the agents and servants of defendant in charge of said train, negligently failed to stop the train at said Bucklin station a reasonable length of time to permit plaintiff to get on said train, and while plaintiff was attempting to get on said train those in charge of said train negligently and carelessly started said train rapidly forward, whereby the plaintiff was struck by the cars of the said train, knocked down and very severely injured, etc. There was testimony tending to show that the train was five hours behind time, and that it did not stop a reasonable length of time to permit the plaintiff to get on, and that the conductor saw the plaintiff attempting to get on, and started the train while he was so in the act of getting on. There was testimony tending to show, also, that the train stopped a reasonable time, that the plaintiff was intoxicated and by his conduct and conversation induced the conductor to believe that he did not intend to take passage on his train, and that while going toward the coach, he fell and was injured.

For the plaintiff the court gave the following instructions:

1. It was the duty of those in charge of the train to bring it to a full stop at the platform at Bucklin, and to stop there a reasonable length of time to allow passengers to get off and on in safety; and if the jury believe from the evidence that they did not do so, or that they started up at an unusual rate of speed, or with unusual suddenness, and that plaintiff was injured thereby without fault on his part, then they are bound to find for plaintiff.

2. Although the jury should believe from the evidence that plaintiff was intoxicated, and was negligent, yet if they further believe that the conductor of the train could have prevented the injury to plaintiff by exercising ordinary care, prudence and caution after he discovered the danger in which plaintiff was placed, and that he failed to do so, then the verdict should be for plaintiff.

3. Even should the jury believe that the train stopped long enough for plaintiff to have got on if he had started to do so as soon as the train came up, yet if the conductor saw the plaintiff in the act of getting on the car, and while plaintiff was so in the act of getting on the car the conductor gave the signal to go ahead, and the train was suddenly started before plaintiff could get into the car, and plaintiff was thereby knocked down and hurt, then the finding should be for plaintiff.

4. If the jury find for plaintiff, they should allow him for all his loss of time and medical expenses occasioned by his injury, and should also take into consideration and allow him for his physical sufferings, and his diminished ability to labor, caused by the injury, both present and future.

The defendant asked the following instructions:

1. Unless plaintiff has shown by the preponderance of the evidence in his favor, and to the satisfaction of the jury, that he was injured by defendant's train by reason of the negligence and want of care of defendant's employes in charge of said train, and that plaintiff was guilty of no negligence which contributed directly to said injury, the verdict of the jury must be for defendant.

2. If the jury believe from the evidence that the train stopped at Bucklin station long enough to enable plaintiff to get safely on if he had availed himself of the time when the train was stopped, and had not been disabled by intoxication, then the jury must find for defendant.

3. If the jury believe from the evidence that plaintiff was guilty of negligence in attempting to get on the train, and that such negligence contributed directly to the injury sustained by plaintiff, he cannot recover, although the jury may further believe that defendant's employes in charge of said train, were to some extent negligent in starting said train.

4. If the jury believe from the evidence that the train stopped at Bucklin station, and after it had started plaintiff attempted to get on the step of the car, and in attempting to do so fell and got injured, then such act on his part constituted negligence, and the verdict should be for defendant.

5. If the jury believe from the evidence that the train stopped at Bucklin station a sufficient length of time to enable a man using ordinary diligence to get on the train with safety, then the verdict must be for defendant.

6. If the jury find from the evidence that both plaintiff and defendant by their negligence immediately contributed to produce the injury, plaintiff cannot recover, and the verdict must be for defendant.

7. If the jury believe that the actions and talk of plaintiff were sufficient to and did induce the conductor to believe that plaintiff did not intend going upon his train, then defendant is not to be charged with negligence by reason of said conductor having started it, without regard to the length of time said train may have been stopped or when it started.

8. If the jury believe from the evidence that the conductor in charge of the train did not know that plaintiff was about to get on his train, then negligence cannot be imputed to defendant, and the verdict should be for defendant.

9. If the jury believe from the evidence that plaintiff, while on the platform at the depot, and while going toward the car, and without fault or negligence of defendant's agents, with the intention of taking passage thereon,...