Waler v. Quincy, O. & K. C. R. Co.

• Decision Date: 30 June 1915
• Docket Number: No. 17216.,17216.
• Citation: 178 S.W. 108
• Court: Missouri Supreme Court
• Parties: WALKER v. QUINCY, O. & K. C. R. CO.

178 S.W. 108

WALKER v. QUINCY, O. & K. C. R. CO.

No. 17216.

Supreme Court of Missouri, Division No. 1.

June 30, 1915.

Appeal from Circuit Court, Adair County; Charles D. Stewart, Judge.

Action by Sarah A. Walker against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Cooley & Murrell, of Kirksville, for appellant. Campbell & Ellison, of Kirksville, and J. G. Trimble, of Kansas City, for respondent.

BROWN, C.

Action for personal injury returnable to May term of the Adair county circuit court. At the October teem an amended petition was filed, stating, in substance, that on October 13, 1911, the plaintiff was a passenger on the defendant's passenger train from Kirksville to a station called Bullion, in the same county, at which there was no station building or platform for the accommodation of passengers; the ground being covered with cinders to about the height of the top of the ties, so that the lower step of the passenger coach was about two feet above the cinder surface. The plaintiff was 74 years old, and weighed 200 pounds, by reason of which it was difficult for her to step from the car to the ground without assistance, which was well known and apparent to defendant's agents in charge of the train, who negligently failed to provide anything for her to step upon in going from the car steps to the ground. As she descended to the bottom step, she held with her hands to an iron handrail, and, before she attempted to step off, the conductor took hold of one of her arms, and the brakeman took hold of the other arm and hand, as though with the intention of assisting and supporting her to the ground, as was their duty; and plaintiff, `relying upon such assistance, released her hold upon the handrail and attempted to step to the ground, and as she did so, and before she had time to alight, they carelessly and negligently, well knowing and disregarding the danger to plaintiff, let go of her, leaving her without support or assistance, by reason of which she was caused to and did fall heavily to the ground, by which she received serious and permanent injuries fully described. She asked judgment for $10,000.

The answer is a general denial.

The evidence tended to prove all the facts stated in the petition. The plaintiff lived near Bullion station, and had taken the same journey on numerous occasions, and knew the conductor, who had always been friendly and nice. She also knew the brakeman.

The first instruction given for plaintiff simply defines the issues made by the pleadings. The other instructions given for plaintiff affecting her right to recover are as follows:

"(2) You are instructed that a common carrier of passengers is charged by the law with the duty of using the utmost care, skill, and vigilance to safely transport those who become passengers on its cars, and the relation of passenger and carrier and the said duty of a carrier to its passenger continues, not only during the actual transportation of the passenger, but while such passenger is alighting from the car; and if in this case you find that plaintiff did become a passenger on one of defendant's passenger trains, and paid her fare as such, then she continued to be such passenger and entitled to said degree of care while alighting from the car at the point of her destination, and, in determining the question of whether defendant's servants exercised such care, you may take into consideration the apparent age and condition of plaintiff at the time, as you may find from the evidence same appeared to defendant's said servants, and the distance from the steps of the car to the ground, the character of the place where she was attempting to alight, as well as all other facts and circumstances shown by the evidence; and if from all the evidence you believe and find that defendant's said servants and agents were careless and negligent in assisting plaintiff to alight, if you find from the evidence they did attempt to assist her, as defined in other, instructions, then your verdict should be for the plaintiff.

"(3) The term `utmost care, skill, and vigilance,' as used in these instructions, means that degree of care and skill that very cautious men in the same vocation would use under similar circumstances.

"(4) If you believe and find from the evidence that the plaintiff was a passenger on defendant's train, and when alighting from the train at Bullion, Mo., the defendant's agents and servants in charge of said train proffered their assistance, and undertook to assist her from said train, then you are instructed that it was their duty to use due care and caution to see that she safely alighted from said train " and if you believe and find from the evidence that they were careless and negligent in giving such assistance, in letting go their hold or relaxing their vigilance while attempting to assist plaintiff to alight, if you find they did so attempt to assist her, and because of said negligence and carelessness, if any, plaintiff fell and was injured while so alighting from said train, your verdict should be for plaintiff."

The court then, at the request of defendant, instructed the jury as follows:

"(1) It was not the duty of the defendant to provide a box, step, or other thing for plaintiff to step upon, and you cannot find in her favor because no box, step, or other thing was provided, nor should you permit such fact to influence you in any way,

"(2) The mere fact, if it be a fact, that plaintiff was injured, does not entitle her to recover in this case, and you should not allow such fact to influence you in arriving at your verdict.

"(3) Negligence is the failure to perform a duty owed to another in the way an ordinarily prudent person in the same circumstances would perform that duty.

"(4) You cannot infer negligence. It is a fact to be proved by plaintiff by the greater weight of the credible evidence in the case. The defendant does not have to prove its employes were not guilty of negligence in performing a duty it owed to plaintiff, but the burden is on her to affirmatively prove such negligence by the greater weight of the credible evidence in the case; and, unless she has proven such negligence by the greater weight of the credible evidence in the case, your verdict must be for the...