Johnston v. St. Louis & San Francisco Railroad

130 S.W. 413, 150 Mo. App. 304, 1910 Mo. App. LEXIS 696

• Court: Missouri Court of Appeals
• Decided: July 12, 1910
• Status: Published

Opinion

NORTONI, J.

This is a suit for damages under the wrongful death statute. Plaintiff recovered and defendant prosecutes the appeal.

It appears plaintiff’s husband was a passenger on defendant’s train en route from Wichita, Kansas, to Crocker, Missouri, and came to his death by falling through the door of an open vestibule on the car in which he was riding. The principal argument on appeal relates to the sufficiency of the proof made with respect to the negligence of the defendant and the proximate cause of the injuries. The relevant facts pertaining to these matters are that plaintiff’s husband in company with his companion, Dixon, took passage on defendant’s passenger train at Wichita, Kansas, about 1:30 in the afternoon, for Crocker, Missouri. The two passengers rode together in a seat of the smoking car all of the afternoon and until immediately before plaintiff’s husband fell from the train about three miles west of Pierce City, Missouri.

Deceased fell from the train somewhere about 9:30 o’clock at night. It is in evidence that plaintiff’s husband and Dixon Avere riding together in the seat on the north side and at the Avest end of the smoker when about. nine o’clock Dixon removed therefrom to seats immediately across the aisle and went to sleep. No one saw plaintiff’s husband fall from the train. At the time Dixon fell asleep, it seems deceased had lain down in the seats theretofore occupied by both, for the same purpose, but he evidently went out of the car soon thereafter, for it appears he was found unconscious by the roadside about three miles west of Pierce City and it is to be inferred from the testimony the train was not far Avest of that place at the time Dixon fell asleep. The train was vestibuled throughout but there is evidence tending to prove the vestibule door on the smoking car in which plaintiff’s husband Avas riding had been standing open for a considerable time and that in some manner he fell through the same to the roadside below.

The law is now well settled to the effect that while railroad companies are under no obligation to provide vestibuled trains for their passengers, if they do so, it is their duty . to exercise high care toward maintaining them in a reasonably safe condition. It is said the purpose of vestibuled cars is to add to the comfort, convenience and safety of passengers, more particularly while passing from one car to another, and the presence of such an appliance on a train operates to suggest to the passenger that the company has provided him a safe means of passing to and fro on the cars and an invitation as well to use it as convenience or necessity may require. Among other things, the law devolves upon the defendant the duty of exercising high care to keep the doors of such vestibules closed and the traps on the platform in place while the train .is passing over the road, and a passenger, without knowledge to the contrary, may conduct himself as though defendant had performed the full measure of its obligation in this behalf. [Wagoner v. Wabash R. Co., 118 Mo. App. 239, 94 S. W. 293; Bronson v. Oaks, 76 Fed. 734, s. c. 22 C. C. A. 520; Crandall v. Minneapolis, etc., R. Co., 96 Minn. 434; St. L., I. M. & S. R. Co. v. Oliver (Ark.), 123 S. W. 662; 2 Shearman and Redfield on Negligence (5 Ed.), sec. 524; Elliott on Railroads (2 Ed.), sec. 1589a.]

But it is said there is no evidence that the vestibule door was open. The proof on this question is as follows : Dixon testified that he noticed the vestibule door was open at the time the train left Wichita, Kansas, about 1:30 in the afternoon, and he noticed it was open immediately after leaving Pierce City, which was three miles east of the point at which the deceased was found injured by the side of the railroad. The last stop made by the train prior to the time plaintiff’s husband fell therefrom was at Carthage, about twenty miles west from the point where the injury was received. From Carthage the train proceeded to Pierce City without a stop at the rate of about twenty-five miles an hour. Defendant’s depot at Carthage is on the south side of the track and the vestibule door on the south side of the smoker was seen to be open on leaving that place. When plaintiff’s husband was discovered about daylight the following morning, he was lying on his back in an unconscious condition much bruised about the head and shoulder as though he had been hurled from the train. It is said that his head was lying to the south aud his feet toward the railroad about eight or ten feet from the railroad embankment which appears to have been about four or five feet high. He never regained consciousness so as to recite the facts with respect to his injuries.

Dixon awoke at Pierce City and the absence of the deceased was noticed by him about the time the train was leaving that station for Monett. Pierce City is three miles east of the point where deceased was found at the side of the track the following morning. Upon Dixon’s making a search through the train for plaintiff’s husband, he discovered the vestibule doors on the smoker to be open and they so continued until the train reached Monett, at which town he departed there.from for the purpose of giving attention to the absence of deceased. The fact that Dixon found deceased’s hat and bundle of clothes in the car suggested some injury might have befallen him and he quit the train at Monett to ascertain his whereabouts.

There is no evidence whatever to the effect that the vestibule doors were closed while the train progressed from Carthage to Pierce City. The conductor said he could not testify they were closed, but he supposed the porter had performed his duty and closed them after leaving each station. The porter referred to was not introduced as a witness in the case by either party, however ; as to him, the conductor testified that he had quit the company’s service about three weeks before and he last saw him in Kansas.

It is shown the deceased was a strong, healthy man of about thirty-sis years of age aud of industrious habits. In a word, nothing in the proof indicates anything to suggest self-destruction. We are not at all impressed with the argument that there is no evidence from which the jury could find the door of the vestibule was open and that defendant was' negligent in permitting it to so remain while the train was passing from Carthage to Pierce City, for, besides positive proof that the door was observed to be open, on leaving both Wichita, Kansas, and Carthage, Missouri, no one says it was closed thereafter. Furthermore, the conductor practically conceded they were open when he noticed them three hundred yards west of the station at Pierce City, and that they remained open from Pierce City to Monett is conceded. The porter whose duty it was to close the doors of the vestibule upon leaving each station, it is true, was no longer in defendant’s service, but nevertheless it was shown by the conductor that he whs in its service to within three weeks before the trial.

This suit was instituted December 2, 1907, and was finally tried on November 10, 1908. The porter whose duty it was to see that the vestibule doors were closed certainly had some knowledge on the subject, and if the doors were closed, he, no doubt, would have testified to the fact. As he continued in defendant’s service many months after the suit was filed and until within three weeks before the trial, it would seem that defendant should have taken his deposition, at least, to controvert the only allegation of negligence relied upon in the petition. Lord Mansfield once said that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted. [Blatch v. Archer, 1 Cowper 63.] The fact that the porter whose duty' it was to see that the doors of the vestibule were closed was not called upon to testify either at the trial or by .'deposition theretofore, at least raises a strong presumption to the effect that his testimony would not have been favorable to defendant. [Linsley v. New York City R. Co., 104 N. Y. Supp. 916; Hicks v. Nassau Electric R. Co., 62 N. Y. Supp. 597; Schwier v. R. Co., 90 N. Y. 558, 564; Railway Co. v. Wall, 75 Ga. 282; Railway Co. v. Darnell, 68 N. E. (Ind.) 609; Lawson on Presumptive Evidence, 168, 169.] But wholly aside from any inference which the jury might have drawn from the fact that defendant had not called its porter to testify either at trial or by deposition while he continued in its employ, we believe there is a sufficient showing in the proof to afford a reasonable inference that defendant was negligent in respect of permitting the vestibule door to remain open. It appears to have been open twenty miles beyond when the train departed from Carthage. No one said it was closed thereafter. It stands conceded that the doors were standing open while the train proceeded from Pierce City, three miles east of the point of deceased’s injury, to Monett; and it is to be inferred from the conductor’s testimony they were open three hundred yards west of the Pierce City depot.

The forward end of the smoking car in which deceased was riding was partitioned off from that portion occupied as a smoker. In other words, the smoking compartment consisted of one-half the size of the car and there was no means of exit from the smoker to the eastward. The only possible means of egress' from the smoking compartment for plaintiff’s husband was through the door at the west end of the car on to the platform where the door of the vestibule- appears to have been open since the train proceeded from Carthage, twenty miles to the eastward. The fact that plaintiff’s husband was discovered on the side of the railroad in an unconscious condition with his head bruised and his shoulder much disfigured of itself indicates that he must have passed through the open vestibule door, for the proof presents no other reasonable theory pointing to the conceded fact that by some means he reached the roadside while the train was progressing at twenty-five miles per hour. But it is said though it appears plaintiff’s husband must have passed through the open vestibule to his injuries, the proof does not enforce the conclusion that his injuries resulted from defendant’s negligence and is not. any more consistent with its negligence as the cause of the injury than with the absence of it. This argument in a measure concedes defendant was negligent in permitting the vestibule door to be open and relates more particularly to the proximate cause of the injuries which resulted in the death of Johnston. It suggests that though defendant was negligent, no causal connection sufficiently appears between its negligence and the injury. The argument will be noticed with this thought in mind. It must be conceded that no one saw plaintiff’s husband in the vestibule or about the doorway but, on the contrary, he was last seen in the car while lying-in his seat immediately adjacent to the door of the smoker and, we infer, about six or eight feet from the open door of the vestibule. We believe it to be true in those cases where the inference of negligence from other facts in the case is relied upon, such inference must be more consistent with the negligence of defendant as the cause of the injury than with some cause for which it is not responsible. But it need not be inconsistent with any other hypothesis. [1 Shearman and Redfield on Negligence (5 Ed.), secs. 57, 58.] It is not essential, even to prove that defendant’s negligence is the proximate cause of the injury, to produce eyewitnesses in every instance. Indeed, facts and circumstances surrounding the situation 'are sufficient for the purpose if they fairly suggest the defendant’s negligence operated proximately to produce the hurt and afford a reasonable inference to that effect in accordance with the known experience of men touching matters of like import so as to indicate the result as a reasonable probability. [1 Shearman and Redfield on Negligence (5 Ed.), secs. 57, 58; Buesching v. Gaslight Co., 73 Mo. 219; Yongue v. St. L. & S. F. R. Co., 133 Mo. App. 141, 112 ; Schultz v. Moon, 33 Mo. App. 329; Choctaw, Okla., etc., R. Co. v. McDade, 191 U. S. 64; Settle v. St. Louis & S. F. R. Co., 127 Mo. 336, 30 S. W. 125.] The matter for immediate consideration is what inference the jury were warranted in draAving as the proximate cause from the facts and circumstances in proof. The fact of defendant’s negligence being conceded for the purpose of the argument and the only question for consideration relating as it does to whether or not such negligence operated proximately to produce the injury, it was certainly competent for the jury to proceed in accordance with those well knoAvn precepts which reside in every consciousness as the result of constant inculcation by the experiences of life. It is true enough the jury may not resort to guesswork and conjecture in determining AAdietker or not the negligence alleged was the proximate cause of the injury. [Henry v. St. L., K. C., etc., R. Co., 76 Mo. 288; 1 Shearman and Redfield on Negligence (5 Ed.), sec. 57.] But to reckon with facts and circumstances in the light of human experience is to deduce therefrom such conclusions as common sense and sound reason dictate according to the affairs of life. Indeed, in all questions touching the conduct of men, motives, feelings and natural instincts are alloAved to have their weight and to constitute evidence for the consideration of courts and juries. [Allen v. Willard, 57 Pa. St. 374, 380; Meadows v. Life Ins. Co., 129 Mo. 76, 31 S. W. 578.]

To view the relevant facts as to this matter, it appears plaintiff’s husband was a young man thirty-six years of age, possessed of a vigorous constitution, sound health and in good spirits. He was en route home to his family after an absence of several weeks and no circumstance indicates that he was in the least inclined to self-destruction. It is obvious to one and all alike that he came to his injury and consequent death by being hurled from the car through the open vestibule door. This fact is ascertained and settled beyond peradventure. It is said by courts of first importance the suggestion that one circumstanced as deceased would commit suicide is so highly, improbable as to be unreasonable and that the natural instinct which leads men in their sober senses to avoid injury and preserve life is of itself an element of evidence to the contrary. [Allen v. Willard, 57 Pa. St. 374; Meadows v. Life Ins. Co., 129 Mo. 76, 93, 31 S. W. 578.] There is no presumption of suicide. [Buesching v. Gas Light Co., 73 Mo. 219.] Biut it is said, putting aside the question of self-destruction, it no more appears defendant’s negligence in permitting the vestibule door to remain open was the proximate cause of the injury than that it does plaintiff’s husband was precipitated through the door because of his own careless conduct. This argument is predicated on the fact that one of plaintiff’s witnesses, who was conductor of the train, testified the vestibule was well lighted. Defendant argues from this as though such is an established fact in the case that, as the vestibule was well lighted, the inference deceased was negligent in walking into the open platform and falling through the door is just as reasonable as is one that he fell through the same because of defendant’s negligence and the jury, therefore, must have resorted to conjecture and guesswork in determining the true cause of the injury. This argument must be examined in connection with other testimony for the- plaintiff which goes to the effect that the vestibule was wholly unlighted. Dixon says positively that while the car was dimly lighted, the vestibule was dark. Indeed, he says the platform was so dark he could not see it, and therefore, felt with his hands to ascertain the true situation. In determining the validity of the argument advanced, it is the duty of the court to accord plaintiff the most favorable mew of the testimony for her touching any material matter. It is, therefore, entirely clear that we are not permitted to accept defendant’s theory that the platform was well lighted and that deceased must for that reason necessarily have been negligent in some measure in falling through the door. In so far as the particular argument now under consideration is concerned, the case must be treated as though it was dark in the vestibule and the deceased did not know of the open door, for unless it appears that he had knowledge to the contrary or could have seen the true condition, he was authorized to assume defendant had performed its duty in maintaining closed doors. Aside from the conflicting testimony referred to about the lights in the vestibule, the case is wholly devoid of evidence tending to prove any negligence whatever on the part of the deceased. It is conclusively presumed in the law, unless the contrary is made to appear, that every person conducts himself with ordinary care, for his own safety. In the circumstances of-the particular feature of the case now under consideration, plaintiff’s husband must be declared to have been exercising ordinary care on his part at the time of his injury, and it was competent for the jury to so treat with the matter in determining the proximate cause of the injury, for the rule proceeds in accord with the usual experiences of life. [Buesching v. Gas Light Co., 73 Mo. 219.] It thus appears when the facts and circumstances shown in evidence are considered in accordance with common experience they suggest that plaintiff’s husband did not purposely hurl himself to destruction, but instead fell through the open door without fault on his part. And in this view, the only reasonably probable theory is that defendant’s negligence was the proximate cause of the injury.

Plaintiff’s third instruction was as follows:

“The court instructs the jury that in assessing plaintiff’s damages (if you find the issues for her) yon may take into consideration the age of deceased, his probable expectancy of life, his occupation, his ability to labor and his accustomed earnings prior to his death.” The actuary of the state insurance department gave testimony concerning the expectancy of the life of deceased and there was other evidence to the effect that he was aged thirty-six years, strong, vigorous and industrious. His occupation was shown to be that of a farmer and his accustomed earnings to be $2.50 per day. There can be no doubt that such are competent elements of damages in a case of this character and we see no objection to the instruction on that score. [Louisville, Evansville, etc., R. Co. v. Clarke, 152 U. S. 230.] B!ut the instruction is assailed for the reason it does not inform the jury that the measure of damages the plaintiff was entitled to recover was such as would reasonably compensate her for the loss suffered because of her husband’s death. It is to be noted, however, in this connection that this instruction does not say that the jury might allow plaintiff such a sum as would be equal to her husband’s probable earnings. Indeed, in so far- as this instruction is concerned, it does no more than direct the jury to certain elements of damage which it was competent for them to consider without saying that the whole amount might be awarded to plaintiff. Instruction number 2 for plaintiff directed that the jury might allow her not less than two thousand dollars and not exceeding ten thousand dollars, as it believed from the evidence would fairly and reasonably compensate her for the death and loss of her husband.. The two instructions when considered together are certainly sufficient; for by one the jury was directed in plain terms that plaintiff could be awarded only such sum as would fairly and reasonably compensate her on account of the loss of her husband and by the other they were merely informed that the elements of damage therein referred to might be properly considered. The second instruction mentioned operates of course as a limitation upon the third and they are not erroneous in their general scope. If defendant desired further limitations with respect to this matter, it should have requested the court to that effect. [Browning v. Wabash, etc., R. Co., 124 Mo. 55, 71, 72, 27 S. W. 644.]

For plaintiff the court instructed, among other things, as follows:

“The jurors are instructed that before they can find a verdict for the plaintiff, they must find from the evidence that defendant’s negligence in leaving open the vestibule door of the car (if such was the fact) through which deceased is alleged to have fallen and thereby been injured, was the proximate cause of his said injuries and consequent death. If the fall and the consequent death of deceased was the natural and probable result of defendant’s said alleged negligence and said injuries would not have been received by plaintiff but for said negligence, then said negligence was the proximate cause of the injury to deceased and his consequent death.”

This instruction is assailed by defendant for the reason it is said that by directing the jury if decedent fell through the open door to his injury, then such open door was the proximate cause of his injury, notwithstanding decedent may have been negligent himself. This argument proceeds from the fact that the conductor testified that there Avere lights burning in the vestibule and that such indicated negligence on the part of decedent if he fell through the door in a lighted vestibule. The mere fact that an instruction authorizing a recovery for plaintiff omits to require the jury to find decedent was not negligent for his OAvn safety is not error, provided that question is properly submitted in other instructions. The instructions must all be read together before condemning one for this omission. [Owens v. K. C., etc., R. Co., 95 Mo. 169, 8 S. W. 350; Hughes v. C. & A. R. Co., 127 Mo. 447, 30 S. W. 127; Lange v. Mo. Pac. R. Co., 208 Mo. 458, 106 S. W. 660; Meily v. St. L. & S. F. R. Co., 215 Mo. 567, 114 S. W. 1013.] This question pertaining to the lights in the vestibule and decedent’s contributory negligence thereunder 'was submitted to the jury for defendant in the following instruction:

“Gentlemen of the Jury: You are instructed that although you may believe from the evidence that the train on which plaintiff’s deceased husband was riding was a vestibule train, and that the vestibule doors of same were open at the time of the accident; yet if there was a light or lights in said vestibule of sufficient power to enable deceased, by the exercise of ordinary care, to see that said doors were open, and further that the danger thereof, if any, was apparent to him, then plain: tiff cannot recover, although you may further find from the evidence that deceased fell through said open vestibule door.”

This instruction was more favorable to defendant than the law warrants, for it directed the jury in substance if there was a light in the vestibule sufficient and the danger was apparent, as of course it was in those circumstances, then plaintiff could not recover. The mere fact that the danger of falling through an open door in a lighted vestibule is apparent or that he knew of the danger is not of itself sufficient to authorize a verdict for defendant on the score of contributory negligence unless deceased omitted to conduct himself thereabout with that degree of care usually exercised by an ordinarily prudent person in the same circumstances. [Huhn v. Mo. Pac. R. Co., 92 Mo. 440, 4 S. W. 937; Beauvais v. St. Louis, 169 Mo. 500, 69 S. W. 1043.] However this may be, defendant’s instruction, above copied, pointedly informed the jury that if there were lights in the vestibule and the danger was obvious, then plaintiff could not recover, and it was given full benefit of the testimony as to such light. The verdict for plaintiff affirms that the jury accepted the evidence of Dixon who said the vestibule was entirely dark. And if such were the fact, then beyond question defendant’s negligence in permitting the door to remain open was the proximate cause of the injury. |

We have examined the other matters mentioned in the brief but do not regard them of sufficient importance to merit discussion in the opinion. We discover no reversible error. The judgment of three thousand dollars seems to be moderate and it should he affirmed. It is so ordered.

All concur.