Wise v. Wabash R. Co.

• Decision Date: 29 December 1908
• Parties: WISE v. WABASH R. CO.
• Court: Missouri Court of Appeals

115 S.W. 452

135 Mo. App. 230

WISE v. WABASH R. CO.

St. Louis Court of Appeals. Missouri.

December 29, 1908.

Rehearing Denied January 26, 1909.

1. EVIDENCE (§ 471)—OPINION EVIDENCE— BODILY CONDITION.

One who is not an expert may testify in his action for personal injuries that his ribs were broken in the accident.

2. CARRIERS (§ 318)—CARRIAGE OF PASSENGERS—COMMENCEMENT OF RELATION.

Evidence held to show that a carrier expressly or impliedly invited passengers to board its train while coaches were being coupled to it, authorizing a passenger injured while boarding the train at such a time to recover as against

the objection that the train was not ready for the reception of passengers.

3. TRIAL (§ 192)—INSTRUCTIONS—ASSUMPTION OF FACTS.

The court in instructing the jury may assume as true a fact which is admitted or proved beyond doubt by the uniform testimony of both parties.

4. TRIAL (§ 189)—INSTRUCTIONS—HYPOTHETICAL STATEMENTS.

An instruction containing an hypothesis opposed to all the testimony should not be given.

5. CARRIERS (§ 348)—CARRIAGE OF PASSENGERS —ACTIONS—INSTRUCTIONS.

Where, in an action for injuries to a passenger while boarding a train in consequence of the violent movement of a coach sought to be coupled to the train, all the evidence showed that passengers were invited to board the train while coaches were being attached to it, an instruction that there could be no recovery if the passenger attempted to board the train while coupling was being done, if she was told that the train was being made up, and that she would have time to get on, unless the trainmen making the coupling saw or by the exercise of reasonable diligence might have seen her in the act of boarding the train, was not erroneous as eliminating the defenses of contributory negligence and assumption of risk, except in so far as such defenses were based on the erroneous theory that the passenger's attempt to board the train was premature.

6. CARRIERS (§ 328)—CARRIAGE OF PASSENGERS—CARE REQUIRED OF PASSENGERS.

A passenger boarding a train while coaches are being coupled to it must exercise ordinary care, and, if she steps on the train when it is apparent that a coach is about to be shoved against it with dangerous violence, she is guilty of contributory negligence.

7. CARRIERS (§ 287)—CARRIAGE OF PASSENGERS—CARE REQUIRED OF CARRIERS.

A carrier admitting passengers on the rear coach of a train while coaches are being coupled thereto fails to exercise the high care imposed on it for the safety of its passengers when the coaches are shoved against the train with dangerous violence.

8. DAMAGES (§ 62)—PERSONAL INJURIES—AGRAVATION OF INJURY.

One suing for a personal injury is not entitled to recover for any aggravation of the injury due to careless nonobservance of the advice of her physician, though, as a general rule, no more than substantial observance is required.

9. DAMAGES (§ 213) — PERSONAL INJURIES — INSTRUCTIONS—EVIDENCE.

Where, in an action for negligent injury to plaintiff's foot, her testimony showed that she did not substantially follow her physician's advice as to the use of crutches, but that she walked without crutches contrary to his express directions, an instruction that if plaintiff failed to substantially follow the physician's directions, and the subsequent condition of her foot was due to her disregard of his advice, the jury could not allow plaintiff anything on account of the condition of her foot as the result of her own fault, was misleading, as authorizing the jury to find that plaintiff substantially followed her physician's advice notwithstanding her testimony.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Frances Wise against the Wabash Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This plaintiff was hurt while taking passage on one of defendant's passenger trains in the city of Moberly in April, 1901, and instituted this action for damages. The injuries alleged and of which there is any proof were three broken ribs and a rupture of the ligaments between the bones in the instep of the right foot, in consequence of which the arch was permitted to drop below its normal position. There was evidence to prove these facts: Plaintiff had purchased a ticket from Moberly to the city of Mexico, in Audrain county, intending to go by defendant's train, which was due to leave the former city at 9:30 o'clock in the evening. Shortly before that time, she and a friend went to the station, passed through the depot building or passageway connected with it, saw the train she wished to board standing on a track immediately in front of the station, with a portable footstep on the ground below the steps of the coach she wished to enter, and passengers getting on said coach. When said train arrived at Moberly on its way to St. Louis from Kansas City, the custom was to couple to it a mail car which came to Moberly in another train about the same hour, and was taken out of the latter train at said point and coupled on the one plaintiff meant to go on, to be hauled to St. Louis. It was also customary to couple to the rear coach of the train plaintiff boarded a parlor car which was brought from St. Louis to Moberly during the day and left standing in the yards until the train in question arrived, when it was attached to said train and made the return trip to St. Louis. The conductor and some of the witnesses testified the train was not yet made up, but they agreed passengers had boarded it, and that it was usual for them to do so while the train stood at the station. The conductor and at least one other employé of the company saw plaintiff was about to get aboard, and did not remonstrate. As a great contention is made against the first instruction granted for plaintiff on the ground that it did not require the jury to find the train was ready or plaintiff was invited to enter, we will set out some of the testimony. A servant styled the "night depot master," said that, after trains were made up, he would go into the waiting rooms and call for passengers; that he saw plaintiff and Mr. Reed, the gentleman who accompanied her to the station, going toward the car before he made the announcement, and gave no warning to them not to get aboard. The conductor of the train said it was customary, as soon as his train drew into the station, for passengers whose destination was Moberly to get off there, and usually a group of persons were standing near intending to take passage who were allowed to do so immediately. It was the custom and practice to receive passengers on the train as soon as those already on who wished to leave it had alighted. On the evening of the accident, other persons had boarded the train for St. Louis before he saw plaintiff and Mr. Reed. He had already received passengers. He saw Mrs. Wise and Mr. Reed going toward the train. From the time the train stopped until it started again, the steps were down, lights were burning, and the train was at the usual place for taking passengers aboard. If plaintiff went from the point where he first saw her and went aboard, she did as persons usually did who intended to get on trains. A switchman who worked in the Moberly yards testified people began to get on the train as soon as it arrived at the platform and passengers for Moberly began to get off. The footstep was laid down and kept there continuously while the train was at the station. Some passengers would get off for a lunch or to smoke, and get on again at any time. Anybody could get on and off at any time, and the step was there as an invitation for them to get on and off; that was what the train stood there for.

A car inspector was looking over the train at the time plaintiff arrived, and a supposed warning by him is much relied on in defense. He testified as follows: "Now, what was your business there that night? Describe to the jury what you would be doing around the train at the time? A. I was inspecting the train. Q. State what you mean? A. Looking over the cars, commencing at the rear end of the train as it arrived in there from Kansas City, that part of the train. I would commence at the rear and come toward the head end where the engine would be cut off. I looked under the rear end of the platform to see the coupling was all intact, and then began looking over the wheels of the first truck and part of that car, and, when I rose up, I met Mr. Reed and the lady. The lady was advancing a little ahead of Mr. Reed. She inquired of me was that the train for Mexico. I told her it was. I says: `There's no rush, lady, take your time. We will give you assistance to get on the train. Approach down to the other end of the car, and there will be preparation made for you to get on the train,' I passing right along with her, she a little in advance of Mr. Reed all the while. I looked over the other truck and come to the steps. She approached to get on the train and she started up the train, Mr. Reed behind her or near her side. Getting up to about the second or top step she became entangled in her skirts, and stumbled or staggered around some little bit before she recovered. I don't think to the best of my knowledge she went clear down on the platform of the car, but afterwards, after she come to herself and got herself straightened up, she advanced into the car. * * * Q. You were inspecting cars? A. Yes, sir. Q. And you saw Mr. Reed and this lady come up there? A. Yes, sir. Q. And the lady spoke to you? A. Yes, sir. Q. Says: `Is this the car for Mexico'? A. Yes, sir. `Is this the train for Mexico'? Q. You told her it was? A. Yes, sir. Q. And she immediately proceeded to go on? A. She advanced then to the east end of the car. She was near the west end of the car at the time, and she advanced on to the east end of the car and went on the train. Q. Went on the train? A. Yes, sir. Q. That's all that was said? A. Yes, sir; that's all...