Vancleve v. St. Louis, Memphis & Southeastern R. Co.
| Citation | 80 S.W. 706,107 Mo.App. 96 |
| Parties | VANCLEVE, Respondent, v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant |
| Decision Date | 26 April 1904 |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
Judgment reversed.
Faris & Oliver for appellant.
(1) The court erred in overruling the demurrer to the evidence at the close of plaintiff's testimony. The testimony of plaintiff showed that the soil in Arkansas and Missouri along the route traversed by the train in question, on the morning of the alleged accident, was of a black, sticky nature; that it had rained the night before and had been raining on the morning of said accident. It was not the duty of appellant to stop and clean its coach platform steps en route, in view of the circumstances. So held in case of sleet, ice and snow. Palmer v. Pennsylvania Co., 2 L. R. A. 252; Unger v. Railroad, 51 N.Y. 497; Fearn v. Ferry Co., 143 Pa. 122; Proud v Railway, 50 L. R. A. 468; Neslie v. Railroad, 113 Pa. 300. (2) Plaintiff failed to show when or, except by inference, how the mud in question was deposited upon the steps, nor how long it had been suffered to remain there. 1 Shearman & Redfield on Negligence (4 Ed.), sec. 59; Yarnell v. Railway, 113 Mo. 580; Feary v. Railroad 162 Mo. 75.
Duncan & Bragg and Brewer & Collins for respondent.
Even if the court did commit error in refusing defendant's demurrer to the evidence at the close of the plaintiff's case, such error was waived by appellant putting in its own evidence. Clark v. Railway, 93 Mo.App. 456; McPherson v. Railway, 97 Mo. 253.
The suit is to recover damages on account of personal injuries alleged to have been received by respondent in alighting from a passenger coach of appellant, on November 19, 1902, at Caruthersville, Missouri. The petition alleges that respondent was injured by stepping on and falling from the steps of appellant's coach; that she was caused to slip by reason of mud that was negligently permitted by appellant to be upon the steps of the coach.
The answer was a general denial with a plea of contributory negligence. Verdict and judgment for four thousand dollars were given in favor of plaintiff.
The evidence shows that respondent boarded the appellant's train at Yarbro, Arkansas, to be carried to Caruthersville, Missouri, the northern terminus of the road; that the train was made up at Yarbro and left there about eight o'clock a. m. on November 19, 1902, and arrived at Caruthersville between eleven and twelve o'clock a. m. on the same day; that it had rained the day and night previous and the ground was muddy along the route; that the soil was of a black, sticky nature when wet; that there were several stations at which the train stopped en route and received and let off passengers, some thirty-five or forty in all, most of whom were carried to Caruthersville; that the train was a mixed one, consisting of freight cars and one passenger coach; that when the train arrived at Caruthersville the steps of the passenger coach were muddy. Some of the witnesses say there was considerable mud on them. A thirteen-year-old boy, who was present when the train arrived, said there were two spades full of mud on the three steps, the greater portion being on the second or middle step.
Respondent paid her fare when she boarded the train at Yarbro and when the train arrived at Caruthersville, she proceeded to disembark. She described what then occurred as follows:
She had a valise in one hand and said she had hold of the hand rail with the other hand at the time she slipped; that she paid no particular attention to the steps until she felt her foot slipping and then looked down and saw that the step was muddy.
There is no direct evidence as to the condition of the steps when the train left Yarbro, but it is in evidence that the cars and steps were always cleaned when they arrived there and also at Caruthersville, by employees of the appellant, therefore, it is presumptively shown that the mud on the steps of the car accumulated en route from the feet of passengers boarding the train at the intermediate stations when the train stopped. A good many passengers (estimated at twenty or thirty) preceded respondent from the train in safety, without slipping on the steps of the car; others also followed in like manner.
Respondent testified that she was twenty-seven years old at the time of her injury, was strong, in good health, was without physical infirmities, and had worked all the previous season hoeing and picking cotton in Arkansas.
There is no evidence showing or tending to show that any of appellant's servants in charge of the train knew or had notice that the steps were muddy and slippery.
At the close of the evidence appellant moved that respondent be nonsuited. The court refused to grant the motion. It is contended by appellant that this action of the court was erroneous; that on all the evidence it is not shown that appellant was guilty of any negligence. It is well-settled law that the duty of a steam railroad to its passengers is, as far as it is practicable by human care and foresight, to carry them safely, and it is responsible for all injuries from any, even the slightest, neglect. Lemon v. Chanslor, 68 Mo. 340; Furnish v. Railway, 102 Mo. 438; Clark v. Railway, 127 Mo. 197; Muth v. Railway, 87 Mo.App. 422; Young v. Railway, 93 Mo.App. 267; Fillingham v. St. Louis Transit Co., 102 Mo.App. 573, 77 S.W. 314. After a passenger boards the car of a railroad company by the express or implied consent of the company to be carried thereon, the relation of carrier and passenger begins and continues until the passenger is allowed a reasonable time to leave the car on its arrival at his destination. 4 Elliot on Railroads, sec. 1592; Cullar v. Railway, 84 Mo.App. 340; Atkinson v. Railway, 91 Mo.App. 489; Young v. Railway, supra. A railroad company owes these duties to a passenger whom it undertakes to carry for hire on a freight or mixed train, the same as on a regular passenger train, the only difference being that the passenger submits himself to the inconvenience of such a train and assumes whatever dangers are necessarily incident to that mode of conveyance. Parsons v. Railway, 94 Mo. 286; Wait v. Railway, 165 Mo. 612; Dorsey v. Railway, 83 Mo.App. 528; Fullerton v. Railway, 84 Mo.App. 498.
But railroads as carriers of passengers are not liable as insurers of their lives and safety and are not,...
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