Yarnell v. The Kansas City, Fort Scott & Memphis Railroad Company

• Citation: 21 S.W. 1,113 Mo. 570
• Parties: Yarnell v. The Kansas City, Fort Scott & Memphis Railroad Company, Appellant
• Decision Date: 31 January 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 1

113 Mo. 570

Yarnell v. The Kansas City, Fort Scott & Memphis Railroad Company, Appellant

Supreme Court of Missouri, Second Division

January 31, 1893

Appeal from Howell Circuit Court.--Hon. W. I. Wallace, Judge.

Action for damages for the death of plaintiff's husband, the petition claiming that such death was caused by the negligence of defendant, in the manner following, to-wit:

That plaintiff's husband, at three o'clock A. M., on July 7, 1890, took his two daughters to Brandsville, a station on defendant's road, to put them on a passenger train due about that hour; that, when arrived, no employe of defendant appeared to assist his daughters upon the train, and that he helped them upon it; "that before he could get them safely on said train, the servant's and employes of defendant carelessly and negligently started said train in motion, and that the said Yarnell alighting therefrom fell and was run over and killed by defendant's said train of cars; that said train barely stopped at said depot and station, and wholly failed to give said parties time to get aboard thereof; that, in consequence of the negligent failure of defendant's servants and employes to alight from said train and assist passengers thereon, and the negligent failure of defendant's servants and employes to have lights on said platform and at said station, as aforesaid and in consequence of the negligent starting of said train before passengers had time to get aboard thereof, the said Robert M. Yarnell was run over and killed by defendant's train of cars, as aforesaid."

A second count in the petition contained substantially the same averments as the first, with the following in addition "That the platform at said station was out of repair and unsafe for use by the public; that it was rotten and broken in many places and that, in attempting to alight from said moving train, deceased stepped on a decayed plank in the platform, which broke, and caused him to fall back under the train by which he was killed, and that the negligence of defendant in having an unsafe platform caused his death."

The answer contained a general denial and a plea of contributory negligence, and plaintiff replied. Having introduced her testimony, the plaintiff rested after having dismissed as to her second count, and the court instructed the jury to disregard any testimony on that count. Defendant declined to offer any testimony but demurrer to that offered by plaintiff, which demurrer was overruled. Under the instructions given the jury returned a verdict for plaintiff in the sum of $ 5,000, and judgment went accordingly, from which defendant appeals.

The record has been printed in full and has been carefully read. The testimony in substance shows this state of facts: Robert M. Yarnell, the husband of plaintiff, was a strong, active man, nearly forty-four years old at the time of the accident which is the basis of this action. He lived with his family some seven miles from the station of Brandsville. About two o'clock on the morning of the seventh day of July, 1890 he went with his two daughters, one married and the other single, to Brandsville to put them aboard the cars of the defendant company. George Wall, a cousin of the young ladies, accompanied the party. The daughters were going to the home of one of them, Mrs. Curry, who lived near McDonald. Arriving at Brandsville at about three fifteen A. M. the party proceeded to the depot where the father bought tickets for his daughters only, as neither he nor Wall intended to become a passenger. There were no lights on the platform of the station; but the moon was shining, and when the expected train arrived it stopped, and the agent brought out a light, and the party proceeded to get on the train. The father and George Wall assisted the young ladies to get on the train, and George Wall, taking the two valises from the hands of the father, left him either standing on the bottom step of the car, or else on its platform, or else on the depot platform, and went with the ladies through the car which they first entered, and to the second or third seat of the next or chair car, where the ladies obtained seats. About that time the train started. Leaving the ladies and valises, Wall went to the platform of the car, where he saw a negro whom he took for the porter, standing on the steps looking backward; this, if the porter, was the only employe, aside from the agent of the defendant company, that Wall saw up to that time, nor had any persons been seen by Wall and his party getting off or on the train. He then jumped off the train; and estimated that the point where he got off was twenty-five or thirty feet above the end of the depot platform. When he reached the end of the depot platform he found Yarnell there dead, having been decapitated, it would seem, by the cars. The body lay on its side at the upper end of the platform, between the platform and the rail; the right foot was fastened under the platform, and the head of the deceased "was just apast the end" of the platform. There was blood on the rail where the corpse lay, but there were no indications that the body had been dragged.

How far the "switch" is from the depot does not appear, nor how long the depot platform is; but when the switch was reached, the conductor came from the back of the car on which the ladies were, stopped the train and said to the ladies, "the old gentleman has been hurt;" helped them to alight, and they went back to the scene of the accident. How long the car stopped at the time the daughters of plaintiff took passage cannot be told. Wall, testifying on this point, said "about a minute." Mary Yarnell that the train started "just about the time we got seated." In response to the question whether the train stopped, Mrs. Curry said "Yes, sir, it did;" but being pressed by counsel to say "about how long," replied, "Hardly a stop; it was almost moving all the time."

All the testimony respecting the condition of the depot platform having been properly excluded by the court from the consideration of the jury, when the plaintiff dismissed as to the second count in her petition, such testimony forms no part of this record and will not be further noticed.

Reversed.

Wallace Pratt, I. P. Dana and Olden & Orr for appellant.

(1) The demurrer to the evidence should have been sustained and defendant's instruction number 1 given, because, first, there was no evidence of any negligence towards anyone on the part of defendant or its employes, as alleged in the petition or in any respect. Raben v. Railroad, 34 N.W. 621; Raben v. Railroad, 35 N.W. 645; Straus v. Railroad, 75 Mo. 185; Hurt v. Railroad, 94 Mo. 255; Gurley v. Railroad, 104 Mo. 223; Roddy v. Railroad, 104 Mo. 244; Patterson's Railway Accident Law, secs. 7, 258; Williams v. Railroad, 96 Mo. 284; Shaw v. Railroad, 104 Mo. 654; Clotworthy v. Railroad, 80 Mo. 220; Lawton v. Railroad, 18 S.W. 543. Second. There was no evidence of any failure on the part of defendant in any duty it owed deceased, nor did the petition aver any such failure. Coleman v. Railroad, 40 American & English Railroad Cases, 690; Griswold v. Railroad, 23 American & English Railroad Cases, 463; Railroad v. Crunk, 41 American & English Railroad Cases, 158; Imhoff v. Railroad, 20 Wis. 344; Lucas v. Railroad, 6 Gray, 64. Third. There was no evidence of what caused the death of plaintiff's husband or of how it happened. Schlereth v. Railroad, 96 Mo. 509; Bowen v. Railroad, 95 Mo. 268; Murray v. Railroad, 101 Mo. 236; Stepp v. Railroad, 85 Mo. 229. (2) The instruction given at plaintiff's request was erroneous. Jones v. Jones, 57 Mo. 138; Forrester v. Moore, 77 Mo. 660; Kendig v. Railroad, 79 Mo. 207; Chouteau v. Iron Works, 83 Mo. 83; Crumpley v. Railroad, 98 Mo. 34; Rapp v. Railroad, 106 Mo. 428; Stevenson v. Hancock, 72 Mo. 612; Price v. Railroad, 77 Mo. 508; Frederick v. Allgaier, 88 Mo. 598. (3) Defendant's instructions, numbers 1, 2, 3 and 4, should have been given. The refusal of each was error.

James Orchard, A. H. Livingston and J. H. Winningham for respondent.

(1) We can, in all confidence and candor, rest this case on two propositions, first, that Yarnell had a legal right under all the circumstances to go on the train to see his daughters comfortably and safely thereon; and second, the company owed him at least ordinary care and that it was negligent on its part in not stopping the train a sufficient length of time for him to alight therefrom in safety. In support of these propositions as being in point and decisive of this case we cite, Doss v. Railroad, 59 Mo. 27, and in support of the law of this case, see 2 American & English Encyclopedia of Law, p. 739, sec. 3, and cases cited in note 2. (2) The law, out of regard to the instincts of self-preservation, presumes that Yarnell, at the time of his death, was in the exercise of due care. The burden rests upon the defendant to rebut this presumption. Flynn v. Railroad, 78 Mo. 195.

OPINION

Sherwood, J.

The controlling question in this case, as already seen, is whether the testimony adduced to support the first count in the petition is sufficient to sustain the verdict.

It will have been observed that the gravamen of the petition is contained in its concluding words "That said train barely stopped at said depot and station, and wholly failed to give said parties time to get aboard thereof; that in consequence of the negligent failure of defendant's servants and employes to alight from said train and assist passengers thereon, and the negligent failure of defendant's servants and employes to have lights on said platform and at said station, as aforesaid, and in consequence...