Winkler v. St. Louis

• Citation: 21 Mo.App. 99
• Parties: F. L. WINKLER, Respondent, v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.
• Decision Date: 23 February 1886
• Court: Court of Appeal of Missouri (US)

21 Mo.App. 99

F. L. WINKLER, Respondent,

v.ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1886.

APPEAL from the Wayne County Circuit Court, JASPER N. MORRISON, Special Judge.

Affirmed.

GEORGE H. BENTON for the appellant: The court erred in permitting any evidence to be introduced to the jury of injuties to the plaintiff's person resulting from a fall upon the trestle while walking back from the point to which he had been carried beyond his destination. Such injuries were not the natural, necessary, and proximate effect of the alleged breach of contract, but the result of pure accident. Pullman Pal. Car Co. v. Barker, 4 Col. 344; Lewis v. Railroad, 18 Am. & Eng. Ry. Cases, 263; Advance case, Mich. June 11, 1884; Hobbs v. Railroad, L. R. 10 Q. B. 111; Henry v. Railroad, 76 Mo. 288; Francis v. St. L. Trans. Co., 5 Mo. App. 7; Delano v. Ins. Co., 10 Mass. 354; Tisdale v. Norton, 8 Met. 388; Anthony v. Slade, 11 Met. 290; Silver v. Frazier, 3 Allen 382; Dubuque W. & C. Ass'n v. Dubuque, 30 Ia. 176; Daniels v. Ballantine, 23 Ohio St. 532; McClary v. Railroad, 3 Neb. 44; Sheffer v. Railroad, 105 U. S. 249; Ins. Co. v. Tweed, 7 Wall. 44; Railroad v. Kellogg, 94 U. S. 469; Bosch v. Railroad, 44 Ia. 402; Curtis v. Railroad, 27 Wis. 158; Hartwig v. Railroad, 49 Wis. 358; Stiles v. Railroad, 8 Am. & Eng. Ry. Cases, 195; McClelland, Adm'r, v. Railroad, 18 Am. & Eng. Ry. Cases, 260. This case is distinguishable from cases upon injuries that have been occasioned by falling into dangerous places while passengers are alighting from trains. Brooks v. Railroad, 135 Mass. 21; S. C., 16 Am. and Eng. Ry. Cases, 345; Knight v. Railroad, 56 Me. 234; Railroad v. White, 83 Pa. St. 327; Railroad v. Farrell, 31 Ind. 408; Filer v. Railroad, 68 N. Y. 124; Hoffman v. Railroad, 75 N. Y. 605; Whalen v. Railroad, 60 Mo. 323; Railroad v. Brigham, 29 Ohio St. 374; Railroad v. Peters, 6 Am. & Eng. R. Cases, 198; Brassell v. Railroad, 84 N. Y. 241; S. C., 3 Am. & Eng. Ry. Cases, 380, and note; Railroad v. Haner, 12 Id. 149. The injury being the result of pure accident, the party upon whom it chanced to fall is necessarily left to bear it. No compensation can be given by law to such cases. Weaver v. Ward, Hob. 134; Gibbons v. Pepper, 1 Ld. Raym. 38; Losee v. Buchanan, 51 N. Y. 476; s. c., 10 Am. Rep. 323; Vincent v. Stinnehour, 7 Vt. 62; s. c., 29 Am. Dec. 145; Morris v. Platt, 32 Conn. 75; Brown v. Collins, 53 N. H. 442. Admitting that the act complained of was unlawful, the plaintiff was only entitled to nominal damages because there was no proof whatever of the amount. Brown v. Emerson, 18 Mo. 103; Owen v. O'Reilley, 20 Mo. 603; Hamilton v. O'Neil, 9 Mo. 10. The verdict and judgment were excessive, and not supported by the proof. Trigg v. Railroad, 74 Mo. 147; Marshall v. Railroad, 78 Mo. 610.

C. D. YANCEY, with whom is CHARLES A. DAVIS, for the respondent: It is the duty of railway companies to provide platforms at their stations on which passengers may alight, and to deliver their passengers on such platforms. Shear. & Red. on Neg., secs. 275, 277, 278; Sedg. on Dam. 565; Railroad v.Whitfield, 44 Miss. 466; Curtiss v. Railroad, 20 Barb. 285; Railroad v. Farrell, 31 Ind. 408; Delamatyr v. Railroad, 24 Wis. 578. The defendant having coerced the plaintiff into action to relieve himself from a perilous position, must suffer the consequences of the adoption of the one or the other of dangerous alternatives. Filer v. Railroad, 49 N. Y. 47; Jones v. Boyce, 1 Stark. 493. When negligence and recklessness co-operate in the consummation of a wrong, the doctrine of contributory negligence has no place whatever. Hartfield v. Roper. 21 Wend. 615; Vandegrift v. Rediker, 2 Zab. (N. J.) 185; Railroad v. Adams, 26 Ind. 76; Railroad v. McClure, 26 Ind. 370; Mulherrin v. Railroad, 81 Pa. 365; Litchfield Coal Co. v. Taylor, 81 Ill. 590.

THOMPSON, J., delivered the opinion of the court.

This was an action for damages tried before Jasper N. Morrison, special judge. Under proper allegations in his petition the plaintiff gave evidence to the effect that he was a passenger on a train of the defendant, holding a ticket which he had purchased of the defendant, which entitled him to be put off at Mill Springs; that when he heard the station “Mill Springs” called through the car, he got up and started to get out at the front end of the coach, but was directed to get out at the rear end. What next happened, according to his own testimony, was as follows: “I turned back and got off at the hind end of the coach, and let myself down very carefully, expecting to alight on the platform, and was surprised when I came in contact with the ground. The night was very dark. After we alighted on the ground, the conductor said, ‘Gentlemen, stand still till we pull out, and then you will be all right,’ and immediately pulled the train out. We looked around and could not see the depot, and were bewildered, and did not know where we were. We debated as to what we should do, dark. It was about two or three o'clock in the morning. We were left below Mill Springs; were left beyond the point the company agreed to carry me. Think this point was below the station at Mill Springs about three hundred yards, but it seemed that night about a quarter of a mile. After short deliberation, and noting the surroundings, I started back the way we came, following the railroad track. We could not see any other road to follow by reason of the darkness. I was walking on the track, and could not distinguish the ties and the space between them. It was very dark; I suddenly fell, one foot going between the timbers of a trestle. It was my right foot, and I fell on my breast and arm. I fell on the timber on the cross ties.”

This testimony was corroborated by the testimony of plaintiff's traveling companion, and there was also evidence tending to show that from the point where the plaintiff and his companion were put off, there was no practicable path to the depot, except along the railroad track. Another path would have obliged them to wade through the stream which ran through the culvert.

The plaintiff gave evidence tending to show the nature of the injury received in consequence of the fall, from which it appeared that he had sustained an injury to his back, hip, and sciatic nerve; that he had suffered from it continually from the time of the accident, and was still suffering from it at the time of the trial, which was nearly five years subsequent to the accident, and that the injury was liable to be permanent.

Upon objections made by the defendant the court refused to allow the plaintiff to give evidence of the expense of medical treatment, and the length of time he was incapacitated from his business in consequence of the injury. These rulings were clearly erroneous; but, as the plaintiff does not appeal, they are not before us for review.

The defendant gave evidence tending to show that the conductor told the plaintiff and his companion that they had run by the station a short distance; that they made no objection to being put off where they were, and did not request the conductor to take them back to the station; and that the conductor cautioned them about the trestle between the point where they were put off and the depot.

The defendant also gave considerable evidence tending to show that the plaintiff had never been disabled or confined to his house by the injury complained of, and that he had not been heard by persons intimate with him to complain of any such injury.

The defendant objected, and saved exceptions to the admission of evidence touching the accident at the trestle, and also to the evidence given by the plaintiff touching the nature and extent of his injuries.

The court refused to instruct the jury that the plaintiff could not recover, but gave the following instructions at the request of the plaintiff:

1. The first instruction was to the effect that, “if the jury found from the evidence in this cause that the defendant carried the plaintiff beyond his destination, and then invited and caused him to alight from its train at a point from which egress was difficult and dangerous, and that by reason thereof the plaintiff, himself, at the time exercising due care, fell into a culvert, or through a trestle, and injured himself, then your verdict should be for the plaintiff.”

“2. In estimating the damages resulting to plaintiff by reason of the negligence of the defendant, if you find such negligence to have existed, in fact, from the testimony in this cause, you are at liberty to take into consideration the extent and nature of the injury sustained by the plaintiff, his mental and bodily suffering, and to fix the amount of damages at such sum as will reasonably compensate the plaintiff for such injury and suffering.”

The defendant requested the court to give four instructions. These the court refused to give as requested, but gave them after modifying them by interlining certain clauses, which are printed below in italics and between brackets:

“1. Notwithstanding the jury believe from the evidence that the plaintiff was carried beyond the depot platform at Mill Springs, yet, if they further believe from the evidence that the plaintiff voluntarily left the said train to walk back to said depot [ knowing that said train had passed said station], they will find a verdict for the defendant.”

“3. If the jury believe from the evidence that the plaintiff was carried beyond the depot platform at Mill Springs, and wrongfully put off from the train by defendant's agents, they are instructed that plaintiff's damages should be limited to compensation for the inconvenience, loss of time, labor, and expense [ and bodily injury], sustained by him in walking back to the said depot platform, as shown by the testimony in this cause.”

“4. The court instructs the jury that although they shall believe from the evidence in this cause that plaintiff...