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

• Decision Date: 31 October 1884
• Citation: 83 Mo. 608
• Parties: WALLER v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

83 Mo. 608

WALLER

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

Supreme Court of Missouri.

October Term, 1884.

Appeal from Buchanan Circuit Court.--HON. W. H. SHERMAN, Judge.

AFFIRMED.

Geo. W. Easly for appellant.

(1) The demurrer to the evidence should have been sustained. Price v. Railroad Co., 72 Mo. 414; Pierce on Railroads, p. 317, note 2; Burrows v. Railway Co., 63 N. Y. 558; Doss v. Railway Co., 59 Mo. 37 is not good law and is unsupported by reason or authority; the cases cited therein do not support it. It is negligence to get off when the train is in motion, whether fast or slow, unless there is that in the facts of the case which induces the belief on the part of the passenger that it is not dangerous. Hutch. on Car., p. 507, § 643; Filer case, 49 N. Y. 47. (2) The first instruction given on behalf of plaintiff should have been refused. Plaintiff's evidence, as shown in paragraph one of his brief, disproved the facts therein proposed to be submitted. (3) The second instruction given for plaintiff is erroneous, first, in defining the degree of care required of defendant. Defendant was only required to exercise such care, diligence, skill and foresight as careful and prudent men are reasonably expected to exercise in the particular business, under like circumstances of difficulty and danger. Sawyer v. Railroad Co., 37 Mo. 260. “The rule does not require that the highest degree of practicable care and diligence should be adopted that is consistent with the mode of transportation adopted.” Redfield on Car., p. 265, § 347. Second, The second instruction was also erroneous in requiring that defendant set the deceased down safely. Third, It was erroneous in declaring that deceased had a right to get off if the circumstances then and there apparent to an ordinarily prudent passenger did not forbid her making the attempt. This is not the law. Hutch. on Car., p. 507, § 643, note 1. (4) The instruction given by the court in lieu of the second asked by defendant is erroneous. First, That it holds as a matter of law that the request or direction of the brakeman to the deceased to alight excused the deceased from contributory negligence. Pierce on Railroads, p. 329, note 5; Price v. Railroad Co., 72 Mo. 419; Filer v. Railroad Co., 49 N. Y. 47; Sykes v. Railroad Co., 11 Cen. L. Journal 337. Second, It puts the inquiry of contributory negligence wholly on the speed of the train. Thomp. on Car. of Pas., p. 227. Third, It is in conflict with the pleadings of the plaintiff. (5) The evidence as to the invitation or direction of the brakeman to Mrs. Waller to alight should have been excluded on defendant's objection. It was an issue not made by the pleadings. Buffington v. R. R. Co., 64 Mo. 246; Waldhier v. R. R. Co., 71 Mo. 514; Price v. R. R. Co., 72 Mo. 414; Edens v. R. R. Co., 72 Mo. 212; Bullene v. Smith, 73 Mo. 151; Ely v. R. R. Co., 77 Mo. 34.

Vinton Pike for respondent.

(1) Plaintiff's evidence was to the effect that the train did not stop a sufficient length of time to enable deceased, by use of reasonable expedition, to get off before it was again started, and that it was either started while she was in the act of alighting, or if it started before she attempted to alight, that she stepped from the train while its motion was almost imperceptible and at the invitation of defendant's brakeman. Straus v. Railroad Co., 75 Mo. 190. (2) Whether it is negligence to get off a moving car not yet beyond the platform, whose motion is so slight as to be almost imperceptible, is a question for the jury. Doss case, 59 Mo. 37; Nelson case, 68 Mo. 59; Price case, 72 Mo. 418; Filer v. Railroad Co., 49 N. Y. 47; Loyd v. Railroad Co., 53 Mo. 509. (3) This case is almost identical with the Filer case, supra. The second instruction given for plaintiff is not erroneous. Kelly v. Railroad Co., 70 Mo. 609; Wood's Brown on Car., §§ 490, 496; Hutch. on Car., §§ 500, 501. (4) The instruction given by the court in lieu of the second asked by the defendant was not complained of in the court below and cannot be alleged as error here. (5) The evidence of the statements of the brakeman as testified to by witness Bledsoe, was properly admitted. It was a part of the res gestœ and was in rebuttal of any evidence tending to show contributory negligence on the part of Mrs. Waller.

NORTON, J.

This action was commenced by plaintiff to recover, as damages, the statutory penalty, for the death of his wife, a passenger on one of defendant's trains, alleged to have been occasioned by defendant's negligence.

The petition substantially alleges as follows:

1. The incorporation of defendant and its operation of a railroad. 2. The creation of the relation of carrier and passenger between plaintiff's wife and defendant, and defendant's duty arising therefrom, to transport her from St. Joseph to Easton and to stop the train “a sufficient length of time for her to pass therefrom with safety.” 3. And yet the plaintiff says that the agents, servants and workmen of defendant, in charge of the aforesaid train, wholly disregarding their duty in that behalf, did not stop at said station or depot a sufficient length of time for said Mary Waller to pass from said train, but carelessly and negligently started said train while the said Mary Waller was passing therefrom, and the said Mary Waller without any negligence on her part in attempting to pass from said train to the platform as aforesaid, was thrown suddenly and violently down between the car and the platform and under the train aforesaid, and was run over, crushed, wounded and lacerated by the car steps and carriage wheels, and otherwise so injured that the said Mary Waller thereafter in consequence and by reason of the said injuries, and on the 18th day of July, 1879, died. 4. That deceased was the wife of plaintiff, and that she died from the injuries received at Easton within six months next before the filing of the petition.

The answer was a general denial with a plea of contributory negligence. On the trial plaintiff obtained judgment, from which the defendant has appealed.

The first action of the court excepted to, as shown by the record, was the reception, over defendant's objection, of the following evidence of witness Bledsoe:

“When Mrs. Waller got to the car door, the brakeman, Ben Lynch, was with her, and as they came out of the car door he said to her: ‘Come on; hurry up’; when I first saw the brakeman he was coming out of the car door with Mrs. Waller; the train was then in motion; he said, ‘Come on; hurry up’; just as he came out of the car door, he being ahead of her; when I next saw him he was on the depot platform and she was on the platform of the car, he again said, ‘hurry up,’ and reached out his hand for her.”

We are of the opinion that this evidence was properly received as being part of the res gestæ, and as tending to rebut the defence of contributory negligence set up in the answer, inasmuch as it must have had a tendency to induce the belief in the mind of Mrs. Waller that she might safely alight from the train, while moving at its then rate of speed.

No other objection was made to the reception or rejection of evidence, and without incorporating in this opinion what was said by the witnesses, it will be sufficient to say of it, that plaintiff's evidence tended to establish the case made in the petition, and that while plaintiff was attempting to pass from said train to the depot platform, the train started by the negligent act of defendant, without having given a reasonable time for Mrs. Waller to alight, whereby the accident resulting in her death occurred. On the other hand, all the evidence of defendant tended to show that the train stopped at Easton a sufficient length of time to allow deceased to alight in safety, and all of it except that of witness, Lynch, tended to show that Mrs. Waller did not leave her seat in the car till after the train started. Witness, Lynch, who was the brakeman, testified on his cross-examination that “just as the train started I turned and stepped on the steps of the car and as I did so met Mrs. Waller coming down the steps.”

On this state of the evidence the court instructed for plaintiff as follows: “The court instructs the jury that it was the duty of the defendant, as a common carrier of passengers, by its agents and employes, to have stopped the passenger cars at the platform, at the depot, for a sufficient length of time to have made it safe for ingress and egress of passengers into and from the same, and to enable them to get on and off with safety. And if the jury believe from the evidence that said Mary Waller was the wife of the plaintiff, that at the time stated in the petition she was on defendant's train as a passenger therein to be conveyed to defendant's station at Easton, and that when said cars arrived at the Easton station said Mary Waller attempted without negligence on her part in so doing, as defined in the instructions, to pass from said train to the...