West v. St. Louis Southwestern Ry. Co.

• Decision Date: 15 February 1905
• Citation: 187 Mo. 351,86 S.W. 140
• Parties: WEST v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: Missouri Supreme Court

86 S.W. 140

187 Mo. 351

WEST v. ST. LOUIS SOUTHWESTERN RY. CO.

Supreme Court of Missouri, Division No. 1.

February 15, 1905.

INJURIES TO PASSENGER—NEGLIGENCE—CONTRIBUTORY NEGLIGENCE—INSTRUCTIONS —REMARKS OF COUNSEL.

1. Plaintiff, a passenger, was carried beyond her station, when the conductor directed her to step out on a flat car, and she was taken back by that means. On arriving at the station the switchman in charge assured plaintiff that there was no means of alighting except for her to jump, and assisted her to the ground. As a result of her thus alighting plaintiff suffered a miscarriage. Held, that there was negligence by defendant in placing plaintiff in so dangerous a position without other means of alighting, though the switchman rendered what assistance he could.

2. Plaintiff was not guilty of contributory negligence in not informing the switchman of her condition.

3. In an action by a passenger who suffered a miscarriage as the result of her injuries, the court instructed that, if plaintiff was entitled to recover, to give her such damages as she was shown to have sustained, and in estimating them to consider the character and extent of her injuries, the fact that they were permanent, together with the physical pain and mental anguish suffered. Held, not a "roving commission to the jury to establish their own standard of damages," but to relate only to the ill health and suffering in consequence of the miscarriage alleged in the petition.

4. A judgment will not be reversed for instructions too favorable to appellant.

5. In an action for injuries to a passenger, remarks of counsel for plaintiff to the effect that defendant's servants would have handled a car load of steers with more care than they did plaintiff were not ground for reversal.

Appeal from Circuit Court, Dunklin County; J. L. Fort, Judge.

Action for personal injuries by Fannie E. West against the St. Louis Southwestern Railway Company. From judgment for plaintiff, defendant appeals. Affirmed.

S. H. West and W. H. Miller, for appellant. Ely & Kelso, for respondent.

VALLIANT, J.

Plaintiff was injured in alighting from a car on defendant's road, and sued to recover damages, alleging that the injury was the result of defendant's negligence.

The plaintiff's evidence tends to prove as follows: Plaintiff, a married woman, living at Pascola, in Pemiscot county, on December 16, 1900, left home to pay a visit to a sister, who lived five miles from Morehouse, in New Madrid county. Her route was over the St. Louis, Kennett & Southern Railway to Campbell, thence over the defendant's railroad to Birds Point, thence by the Iron Mountain Railroad to Morehouse, thence in a hand car five miles to the end of her journey. She carried with her her baby and a daughter about 13 years old. She bought tickets at Campbell, took passage on defendant's train, and was carried to Birds Point, which is on the Missouri side of the Mississippi river opposite Cairo, Ill. At Birds Point the defendant's track leads down to the river and connects with a ferry or transfer boat. Cars are delivered by defendant on the boat, and are ferried across the river. When she boarded defendant's train the plaintiff informed the conductor that she was to get off at Birds Point to take the Iron Mountain train for Morehouse. But when the train reached Birds Point it either did not stop, or else the station was not announced, and the plaintiff was carried past the station, the train going on to the river, a distance of about 1,000 feet, to deliver the cars on the boat. The plaintiff, seeing that she was being carried beyond the station, called to the conductor, and asked him to back the train to the station to let her get off, but the conductor told her to keep her seat in the car, and he would send her back to the station. The train went on to the river, and the car in which the plaintiff was riding was delivered into the ferryboat. Then the conductor came to her, and, taking her hand baggage, and requesting her to follow, led her out across the platform of the car onto what was called a "tow car" attached to the engine, and, pointing to a man on the car, said to her, "This man will take you back or help you off." This tow car was not designed for passengers. Its purpose was to go between the engine and the car to be delivered on the boat so as to avoid the engine getting on the boat. It was used also to carry tools and the trainmen rode on it. It was an open flat car, without any passenger accommodations whatever, though there were benches for the crew. The conductor left the plaintiff and her children on this tow car, and they were carried back to the station. On arriving there, one of the train crew told the plaintiff that he was ready to help her off. She asked how she was to get off, and was told that she would have to jump. It was about five feet from the floor of the car to the ground. The children were taken down safely by the men. The plaintiff again asked if there was not some other way for her to get down, and was told that there was no way but to jump. She was also told that the engine was ready to go on to the yards, and she must get down. Under those conditions she gave her hands to one of the men, who stood on the ground, who in that way helped her, and with that assistance she jumped to the ground. There was on the side of the car, under the edge of the floor, but out of sight to one standing on the floor of the car, an iron appliance called a "stirrup," by means of which switchmen or others who worked on the car could climb on or off. There was also along the sides of the floor of the car an iron railing about a foot high. On alighting the plaintiff went to a hotel near the depot, where she waited until the Iron Mountain train came—three or four hours. When she got to the hotel she was sick with nausea and swimming in the head, and was sick on the route from Birds Point to Morehouse, where she arrived that evening, which was Sunday; was sick at Morehouse; cut her visit short on that account, and returned home on Tuesday, her sister accompanying her for that reason. After arriving at home on the evening of December 18th her illness became serious, but she did not call a physician until, December 29th, she suffered a miscarriage; has been in ill health ever since, and was suffering at the trial. At the close of the plaintiff's evidence the defendant asked an instruction looking to a nonsuit, which the court refused, and defendant excepted.

The evidence on the part of the defendant tended to prove as follows: "The employés of the railroad company testified with one accord that the plaintiff was carefully handled; that she did not jump, that she did not fall, and that no one was hurt in alighting from the car; that she climbed down the steps as other passengers climbed down; that no complaint was made either to them or to any one else of being hurt." They testified that the plaintiff did not jump off or fall off, but, on the contary, was "helped off." One of them (Nance) said she came down the steps face front, as any other lady or child would, the switchman holding her hands. Another one (Henikin) said it was he who helped her, and that she came down backwards; he supporting her by holding her under the arms. The testimony also tended to show that the plaintiff did not inform any of the railroad employés that she was pregnant.

At the request of the plaintiff the court instructed the jury that, if they should find for the plaintiff, they should "assess her damages at such sum, not exceeding ten thousand dollars, as from the evidence you may believe will be just and fair compensation to her for the injuries, if any, which she is shown by the evidence to have sustained. And in estimating such damages you should take into consideration the character and extent of her injuries; the fact, if you so find from the evidence, that they are permanent; together with the physical pain and mental anguish she has suffered in consequence thereof."

At the request of the defendant the court gave the following instructions: "(1) The court instructs the jury that the plaintiff, by her petition as amended, bases her right to recover in this case on the gross negligence of the defendant, by its servants and employés, in assisting her to alight and jump from the rear end of the guide car of defendant to the ground, a distance of about five feet, by reason of which negligence she was injured. Now, in this connection you are instructed that the burden of proving these facts is on the plaintiff, and, unless you find she has done so by a preponderance of the evidence, your verdict must be for the defendant. (2) The court instructs the jury that if, from the evidence, you find and believe that on the 16th day of December, 1900, plaintiff, Fannie E. West, did alight from defendant's car either by being helped or by jumping by assistance of an employé, and was injured in so doing, yet your verdict must be for the defendant, unless you further find that defendant's agents were negligent in assisting her to alight, if you find she was assisted, and that such negligence was the direct cause of the injury. (4) The court instructs you that if you find and believe from the evidence that plaintiff was assisted in alighting from defendant's car, and sustained injuries thereby, resulting in a miscarriage, yet plaintiff cannot recover unless defendant's agents, servants, and employés were negligent in the assistance rendered; and in determining whether or not they were negligent you should consider all the surrounding circumstances, and the fact, if it was a fact, that she was pregnant, should not be considered by you in...