Wagoner v. Wabash R. Co.

• Decision Date: 24 April 1906
• Parties: WAGONER v. WABASH R. CO.
• Court: Missouri Court of Appeals

94 S.W. 293

118 Mo. App. 239

WAGONER v. WABASH R. CO.

St. Louis Court of Appeals. Missouri.

April 24, 1906.

Rehearing Denied May 8, 1906.

1. CARRIERS — PASSENGERS — EQUIPMENT — VESTIBULE TRAINS—CARE REQUIRED.

Where a railroad company provides its passenger cars with vestibule doors, it is not only answerable for the negligent acts of its servants in opening such doors and permitting them to remain so, but is also responsible for its failure to exercise a high degree of care, to the end that such doors shall be closed and the vestibule rendered reasonably safe, though the doors were opened by others than its servants.

2. SAME—USE OF VESTIBULE.

Where a carrier provided vestibules for its passenger cars, it thereby impliedly invited its passengers to pass to and fro to such portions of the train as they were entitled to occupy according to the grade of their transportation, and was thereby bound to maintain such vestibules in a reasonably safe condition.

Appeal from Circuit Court, Audrain County; Houston W. Johnson, Judge.

Action by A. W. Wagoner against the Wabash Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

C. A. Barnes, for appellant. Geo. Robertson and Geo. S. Grover, for respondent.

BLAND, P. J.

In 1903 plaintiff was engaged in selling farm lands in Audrain county, Mo., to purchasers from the state of Iowa. On September 25th, in said year, a few minutes after 9 o'clock, p. m., plaintiff, with a party of 8 or 10 prospective land buyers, procured tickets and took passage at Des Moines, Iowa, on one of defendant's excursion trains, to be carried to Mexico, Mo. There was a rush of passengers to board the train at Des Moines, and plaintiff and his party became separated; part of them going into the second, and the others, including plaintiff, into the third car from the engine. These cars were vestibule and the evidence shows that, when the vestibule doors are down or closed, there is no opening through which a passenger can pass from the car platform to the steps of the car or off the car, and that the rule of the company is to keep the doors closed and only open them when the train stops at stations for the purpose of receiving and discharging passengers, and when the train pulls out from a station to immediately close the doors. The evidence also shows that the doors can be opened or closed by a passenger as well as by a trainman. After the train had left Des Moines, and proceeded on its way some 12 or 14 miles, plaintiff, for the purpose of seeing one of his party in the second car from the engine, left his seat in the third car and made his way into the second one, and after conversing with the man for a few minutes proceeded to return to the third car. He passed out of the second car into the vestibule, where, he testified, it was dark, and felt his way along until he thought he had reached the inside of the third car, and then turned, feeling his way, to pass, as he thought, through a narrow alleyway around the smoking compartment in that end of the car, back to his seat. He was mistaken as to his whereabouts. He had not passed into the third car, but was yet in the vestibule when he made the turn, and, the vestibule door being open, he passed around the end of the car and stepped off, or was thrown, to the ground. He received slight injuries. The suit is to recover damages for these injuries, and also for the damage to his clothing. The answer is a general denial, a plea of contributory negligence, and a special plea of a statute of Iowa making it negligence per se for any one not an employé of the company to step or jump off a moving train. Plaintiff introduced evidence tending to show that the cars were badly lighted, and that there was no light at all on the platform from which he stepped off the car. Defendant's evidence was that the cars were well lighted and that there was a light in the vestibule. Defendant read the following rule of the company, and offered evidence tending to show that it was posted in a conspicuous place in all their passenger cars: "The Wabash Railroad Company. Notice to passengers. Passengers are prohibited from standing on the platforms or within any car or caboose because of danger. They must remain seated until train has stopped at station. J. Ramsey, Jr., President. St. Louis, September 10, 1902." Plaintiff, in rebuttal, read the following section of the Iowa Code: "Sec. 2074. Contract or rule limiting liability: No contract, receipt, rule or regulation shall exempt any railway corporation engaged in transporting persons or property from the liability of a common carrier, or carrier of passengers, which would exist had no contract, receipt, rule or regulation been made or entered into." The verdict was for the defendant; and plaintiff, after taking the usual steps to preserve his exceptions, appealed in the usual way.

1. Plaintiff showed that some of the passengers complained to one of defendant's brakeman about the light, and offered to prove that the brakeman said they were short of gas. On the objection of defendant, the statement of the brakeman was excluded. This ruling is assigned as error. The declaration of the brakeman was in no way connected with the injury or made simultaneous with its occurrence, and hence constituted no part of the res gestæ. Therefore it was mere hearsay and inadmissible as evidence. As said by Scott, J., in Rogers v. McCune, 19 Mo., loc. cit. 569: "The admission or declaration of his agent binds the principal only when it is made during the continuance of the agency in regard to a transaction then depending. It is admissible because it is a verbal act and part of the res gestæ." Such declarations, to be admissible, must be made at the time of the occurrence to which they relate. McDermott v. Railroad, 73 Mo. 516, 39 Am. Rep. 526; McDermott v. Railroad, 87 Mo. 285; Kœnig v. Railway, 173 Mo. 698, 73 S. W. 637.

2. The case was tried on the theory that the laws of Iowa governed; and a great deal is said in the briefs about the statute of Iowa, which, in effect, makes it negligence per se for a passenger to step or jump off a moving train. We are not able to see the applicability of this statute to the facts in this case. The statute can only apply where a passenger, of his own volition, steps or jumps off a moving train. It cannot apply where a passenger, as did plaintiff, involuntarily steps off, in the dark, under the impression that he is moving inside a car, and not off of it. The learned trial judge took this view, and very properly withdrew the statute from the consideration of the jury by an instruction.

3. Plaintiff objected to the notice to pas sengers to remain in their seats as evidence, on the ground that it was an attempt on the part of the company to shift or limit its common-law liability for its own negligence. We do not think the notice had that effect or was introduced for the purpose of excusing the defendant for its own negligence. A railway company carrying passengers discharges its primary duty to a passenger when he is safely seated in the car. If, after being so seated, he leaves his seat while the train is in motion, and goes from his car to another on private business with another passenger, he assumes the risk of being thrown and injured by the ordinary motion of the train and cannot recover, unless he can show that his injury was caused by the negligence of the company, and that his own negligence did not contribute thereto. The notice was a warning to passengers that moving from one car to another while the train was in motion was attended with danger, and cautioned them of such danger. It was a reasonable and proper notice. It imposed no new obligation on the plaintiff, and did not purport to relieve the company of any of its obligations to him as a passenger.

The defendant's evidence tends to show that the rules of the company require the doors of the vestibules to be kept closed when the train is running, and that it was the duty of the brakemen, two of whom were on the train, to see that they were closed, and that they were never opened by the trainmen except when the train stopped at a station for the purpose of discharging and receiving passengers, and as soon as this was done the rules required the brakemen to close the doors; that the train stopped at Runnels and the vestibule between the second and third or the third and fourth cars was opened and both brakemen were on the...