Taylor v. Missouri Pacific Railroad Company

• Decision Date: 22 December 1925
• Docket Number: 24739
• Parties: J. A. TAYLOR v. MISSOURI PACIFIC RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

279 S.W. 115

311 Mo. 604

J. A. TAYLOR
v.
MISSOURI PACIFIC RAILROAD COMPANY, Appellant

No. 24739

Supreme Court of Missouri

December 22, 1925

Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly, Judge.

Affirmed (upon condition).

James F. Green and W. C. Russell for appellant.

(1) The undisputed testimony shows that the employees of the defendant, after they received the car from the Cairo branch of the company at Charleston, and before they put it into service as a passenger car, thoroughly cleaned the steps and removed whatever accumulation of snow and ice there was on the steps. This was all the law required of them. Vancleve v. Railroad, 107 Mo.App. 103; 2 White, on Per. Inj., sec. 681; Tevis v. Railway, 185 S.W. 738; Bate v. Harvey, 195 S.W. 572; Proud v. Railway, 50 L. R. A. 468; Palmer v. Railroad, 113 Pa. 300; Williams v. Railroad, 51 N.Y. 497; Fearn v. Ferry Co., 143 Pa. 122; Neslie v. Railroad, 113 Pa. 300; Williams v. Railroad, 231 S.W. 955; Craig v. Railroad, 158 S.W. 393. (2) The defendant's answer contained a plea to the jurisdiction of the court and a defense to the merits, and it was reversible error for the court to exclude the testimony offered by the defendant for the purpose of showing that the court had never lawfully acquired jurisdiction of the defendant. Little v. Herrington, 71 Mo. 390; Coones Comm. Co. v. Block, 130 Mo. 668; Johnson v. Detrick, 152 Mo. 253; Meyer v. Ins. Co., 184 Mo. 486; Little Rock Trust Co. v. Ry. Co., 195 Mo. 682; Thomasson v. Ins. Co., 217 Mo. 492; Implement Co. v. Hardware Co., 137 Mo.App. 308. (3) The original petition, the summons and the sheriff's return all named the Missouri Pacific Railway Company as the defendant sued, summoned and served, and the court could not, by amendment, acquire jurisdiction over the Missouri Pacific Railroad Company, an entirely different corporation, although bearing a similar name. Jordan v. Railway Co., 105 Mo.App. 446; Hall v. School District, 36 Mo.App. 21; Davidson v. Payne, 289 F. 69; Zukowski v. Armour, 107 Ill.App. 663; Milk Pan Assn. v. Rem. Ag. Wks., 89 N.Y. 22; Hajek v. Benev. Society, 66 Mo.App. 568; Thompson v. Allen, 86 Mo. 85; Blair v. Hall, 201 S.W. 946; Anderson v. Doran, 211 S.W. 80; Roberts v. Assurance Co., 212 S.W. 390. (4) Plaintiff's Instruction A required more of the defendant than the law requires, and it was error to give it. There can be no distinction as to the degree of care required of the defendant in regard to the steps of a passenger coach standing dead still and the steps of a railroad station. The rule of law is, or should be, the same as to both. Joyce v. Railroad, 219 Mo. 372; Elliott on Railroads (2 Ed.) sec. 1590; Williams v. Terminal Co., 231 S.W. 954; Vancleve v. Railway, 107 Mo.App. 103. (5) Plaintiff's Instruction A is further erroneous because it does not conform to the issues presented by the pleadings. Plaintiff's petition based his right to recover only upon defendant's failure to use ordinary care, while instruction numbered A required defendant to use the "highest practical care." Even though the law required defendant to use the highest degree of care, still when plaintiff, in his petition, sought to recover only because of defendant's failure to exercise ordinary care, he is bound by the issue as presented by his petition and cannot recover for a breach of a higher duty, even though same be owing by defendant. Roscoe v. Street Ry. Co., 202 Mo. 588; Beave v. Transit Co., 212 Mo. 351; Black v. Street Ry. Co., 217 Mo. 685; Hufft v. Railroad, 222 Mo. 303; State ex rel. Central Coal Co. v. Ellison, 195 S.W. 724; Bergfeld v. Rys. Co., 227 S.W. 108; McKenzie v. Randolph, 238 S.W. 829. (6) Defendant's Instruction 5 properly declared the law and should have been given. If the steps were in the condition as described by plaintiff when he alighted from the train, they were in such condition that no sane man would have attempted to pass over them. If they were in this condition, he knew it when he boarded the train at Lutesville, because he says they were in the same condition at both points. Kiefer v. St. Joseph, 243 S.W. 108; Beauvais v. St. Louis, 169 Mo. 500; Graney v. St. Louis, 141 Mo. 180; Chilton v. St. Joseph, 143 Mo. 202; Flynn v. Noesho, 114 Mo. 568; Devlin v. St. Louis, 252 Mo. 243; Davis v. Olson, 298 F. 923. (7) The verdict in this cause is manifestly excessive, and so excessive as to justify the court in holding that it was the result of passion or prejudice on the part of the jury. Godfrey v. Railroad, 299 Mo. 372; Mil-West Bank v. Davis, 288 Mo. 563; Gill v. Railroad, 302 Mo. 318; Payne v. Davis, 298 Mo. 645; Myers v. Railroad, 296 Mo. 239; Mount v. Coal Co., 294 Mo. 603; Page v. Davis, 293 Mo. 600; Chapman v. Railroad, 233 S.W. 181; Smith v. Railroad, 279 Mo. 173; Turnbow v. Railroad, 277 Mo. 644; Meeker v. Elec. Co., 279 Mo. 574.

Spradling & Dalton, Homer F. Williams and Charles G. Revelle for respondent.

(1) A carrier of passengers is liable for injuries caused, not only by its failure to remove dangerous accumulations of ice and snow from the steps of its trains before its trains start en route, but is equally liable for injuries caused by its failure to remove dangerous ice and snow which accumulates while the train is en route if such accumulations assume an obviously dangerous form and its employees know thereof, or by the exercise of due care and diligence could and would know thereof, and if, in the exercise of due care and diligence, they have reasonable opportunity to remove the same and fail to so do. 4 R. C. L. sec. 630, p. 1207; 10 C. J. p. 920, sec. 1344; Craig v. Railway Co., 175 Mo.App. 616; Proud v. Railroad, 50 L. R. A. 468; Murphy v. Railroad, 81 N. J. L. 706; 2 White on Per. Inj. on Railroads, 681; Railroad v. Keegan, 210 Ill. 150, 112 Ill.App. 28; Speck v. Railroad, 133 A.D. 802; Railroad v. Smith, 59 Ill.App. 242; Rosen v. Boston, 187 Mass. 245; Railway Co. v. Gresham, 140 S.W. 483; Sutton v. Railway, 230 Pa. 523; Railroad v. Cockerell, 17 Ky. L. Rep. 1037; Neslie v. Railroad, 113 Pa. St. 300; McGuire v. Transit Co., 104 A.D. 105 Jones v. Ry. Co., 178 Mo. 528; Palmer v. Railroad, 2 L. R. A. 252; Fearn v. Ferry Co., 143 Pa. 122; Willmott v. Railroad, 106 Mo. 535. (2) It is a question for the jury to determine whether a railroad company has been guilty of want of due care in failing to keep the steps to its coaches clear of ice and snow. Railroad v. Keegan, 112 Ill.App. 28; Murphy v. Railroad, 81 N. J. L. 706; Gilman v. Railroad, 168 Mass. 454; Speck v. Railroad, 133 A.D. 802; Railway v. Gresham, 140 S.W. 483; Railroad v. Cockerell, 17 Ky. L. Rep. 1037; Neslie v. Railroad, 113 Pa. St. 300; McGuire v. Transit Co., 104 A.D. 105; Craig v. Railroad, 175 Mo.App. 616. (3) The evidence thoroughly warranted the jury in finding, in the instant case, that the ice and snow which caused plaintiff to slip and fall had been deposited on the step before the train started en route. Craig v. Railway, 175 Mo. 625; Gilman v. Railroad, 168 Mass. 454; Simon v. Railroad, 161 Ill.App. 502. (4) Numerous witnesses testified that the steps were covered with ice at Oran, Allenville and Lutesville, long prior to the time the train arrived at Marquand, where plaintiff was injured, and that at the latter point the steps were likewise covered with ice. (5) Instruction A is entirely within the scope of the petition and does not broaden the issues, nor place upon the defendant any higher degree of care and diligence than both the petition and the law declare. The criticism is highly technical, and, even if justified, would not warrant a reversal, with the undisputed facts conclusively showing a case of gross negligence. Magrane v. Ry. Co., 183 Mo. 119; Bishoff v. Ry. Co., 121 Mo. 226; Barklay v. Assn., 153 Mo. 300; Peterson v. Transit Co., 199 Mo. 321. The court gave, at the instance of the defendant, an instruction to the effect that the defendant was not an insurer of the safety of the plaintiff and was not liable for the ordinary hazards incident to his getting on and off the car, and the mere fact that he slipped and fell was no evidence that the defendant was guilty of negligence. The court also by another instruction told the jury that before the defendant could be held liable its negligence must be the sole and proximate cause of the injury. Even if Instruction A could be said to be erroneous, the other instructions removed any danger of prejudice. Smith v. Railway Co., 108 Mo. 243. Under the disclosures of this record it would be impossible to find, where the feature of the instruction criticised, could have resulted in prejudice to any of the defendant's substantial rights, and under such circumstances the judgment will not be reversed, even though the instruction were erroneous. Secs. 1513, 1276, 1550, R. S. 1919; Barklay v. Assn., 153 Mo. 300; King v. King, 155 Mo. 425; Jones v. Ry., 178 Mo. 528; Peterson v. Transit Co., 199 Mo. 321. (6) Upon discovering that the petition writ and sheriff's return contained a mistake in the name of the defendant, the plaintiff filed due and formal motions praying leave to amend the same, so as to make them conform to the facts. The record affirmatively shows that the amendments were not only proper and warranted, but that a refusal on the part of the court to have allowed them would have been an abuse. Secs. 1274, 1550, 1551, R. S. 1919; Green v. Assn., 79 Mo.App. 179; Parry v. Woodson, 33 Mo. 347; Jordan v. Ry. Co., 105 Mo.App. 446; Carr v. Moss, 87 Mo. 447; Jacobs v. Ry. Co., 204 S.W. 954; Wright v. Groom, 246 Mo. 158; Corrigan v. Brady, 38 Mo.App. 649; Lottman v. Barnett, 62 Mo. 159. (7) Under the peculiar and shocking facts of this case, and the measure of damage prescribed by law, the verdict herein is not excessive. Cook v. Globe Printing Co., 227 Mo. 471; Varlay v. Taxicab Co., 240 S.W. 228.

White, J. Walker, P. J., concurs; Blair, J., concurs, but thinks remittitur should be $ 30,000.

OPINION

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