Wagoner v. Wabash Railroad

94 S.W. 293, 118 Mo. App. 239, 1906 Mo. App. LEXIS 301

• Court: Missouri Court of Appeals
• Decided: April 24, 1906
• Status: Published

Opinions

BLAND, P. J. —

In 1903 plaintiff was engaged in selling farm lands in Audrain county, Missouri, to purchasers from the State of Iowa. On September 25th in said year, a few minutes after nine o’clock, p. m., plaintiff, with a party of eight or ten prospective land-buyers, procured tickets and took passage at Des Moines, Iowa, on one of defendant’s excursion trains to be carried to Mexico, Missouri. There was a rush of passengers to board the train at Des M'oines, and plaintiff and his party became seperated, part of them going into the second, and the others, including plaintiff, into the third car from the engine. These cars were vestibuled, and the evidence shows that when the vestibule doors are down or closed, there is no opening through which a passenger can pass from the car platform to the steps of the car, or off the car; and that the rule of the company is to keep the doors closed and only open them when the train stops at stations for the purpose of receiving and discharging passengers, and when the train pulls out from a station to immediately close the doors. The evidence also shows -that the doors can be opened or closed by a passenger as well asi by a trainman. After the train had left Des M'oines and proceeded on its way some twelve or fourteen miles, plaintiff, for the purpose of seeing one of his party in the second car from the engine, left his seat in the third car and made his way into the second one, and after conversing with the man for a few minutes, proceeded to return to the'third car. He passed out of the second car into the vestibule, where, he testified, it was dark, and felt his way along until he thought he had reached the inside of the third car and then turned, feeling his way, to pass, as he thought, through a narrow alleyway around the smoking compartment in that end of the car, back to his seat. He was mistaken as to his whereabouts. He had not passed into the third car but was yet in the vestibule when he made the turn and, the vestibule door being open, he passed around the end of the car and stepped off, or was thrown, to the ground. He received slight injuries. The suit is to recover damages for these injuries and also for the damage to his clothing.

The answer is a general denial, a plea of contributory negligence and a special plea of a statute of Iowa, making it negligence per se for any one, not an employee of the company, to step or jump off a moving train.

Plaintiff introduced evidence tending to show that the cars were badly lighted and that there was no light at all on the platform from which he stepped off the car. Defendant’s evidence was that the cars were well lighted and that there was a light in the vestibule. Defendant read the following rule of the company, and offered evidence tending to show that it was posted in a conspicuous place in all their passenger cars:

“The Wabash Railroad Company. — Notice to passengers. —Passengers are prohibited from standing on the platforms or within any car or caboose because of danger, They must remain seated until train has stopped at station. “J. Ramsey, Jk., President.

“St. Louis, September 10, 1902.”

Plaintiff, in rebuttal, read the following section of the Iowa Code:

“Sec. 2074. Contract or rule limiting liability. — No contract, receipt, rule or regulation shall exempt any railway corporation engaged in transporting persons or property from the liability of a common carrier, or carrier of passengers, which would exist had no' contract, receipt, rule or regulation been made or entered into.”

The verdict was for the defendant, and plaintiff, after taking the usual steps to preserve his exceptions, appealed in the usual way. »

1. Plaintiff showed that some of the. passengers complained to one of defendant’s brakemen about the light, and offered to prove that the brakeman said they were short of gas. On the objection of defendant, the statement of the brakeman was excluded. This ruling is assigned as error. The declaration of the brakeman was in no way connected with the injury or made simultaneous with its occurrence, and hence constituted no part of the res gestae; therefore, it was mere hearsay and inadmissible as evidence. As said by Scott, J., in Rogers v. McCune, 19 Mo. l. c. 569: “The admission or declaration of his agent binds the principal only when it is made during the continuance of the agency, in regard to a transaction then depending. It is admissible, because it is a verbal act and part of the res gestae.” Such declarations, to be admissible, must be made at the time of the occurrence to which they relate. [McDermott v. Railroad, 73 Mo. 516; McDermott v. Railroad, 87 Mo. 285; Koenig v. Railway, 173 Mo. 698, 73 S. W. 637.]

2. The case was tried on the theory that the laws of Iowa governed, and a great deal is said in the briefs about the statute of Iowa, which, in effect, makes it negligence per se for a passenger to step or jump off a moving train. We are not able to see the applicability of this statute to the facts in this case. The statute can only apply where a passenger, of his own volition, steps or jumps off a moving train; it cannot apply where a passenger, as did plaintiff, involuntarily steps off, in the dark, under the impression that he is moving inside a car and not off of it. The learned trial judge took this view and very properly withdrew the statute from the consideration of the jury by an instruction.

3. Plaintiff objected to jhe notice to passengers to remain in their seats as evidence, on the ground that it was an attempt on the part of the company to shift or limit its common-law liability for its own negligence. We do not think the notice had that effect or was introduced for the purpose of excusing the defendant for its own negligence. A railway company carrying passengers, discharges its primary duty to a passenger when he is safely seated in his car; if, after being so seated, he leaves his seat, while the train is in motion, and goes from his car to another on private business with another passenger, he assumes the risk of being thrown and injured by the ordinary motion of the train and cannot recover, unless he can show that his injury was caused by the negligence of the company and that his own negligence did not contribute thereto. The notice was a warning to passengers that moving from one car to another while the train was in motion was attended with danger, and cautioned them of such danger. It was a reasonable and proper notice. It imposed no new obligation on the plaintiff and did not purport to relieve the company of any of its obligations to him as a passenger.

The defendant’s evidence tends to show that the rules of the company require the doors of the vestibules to be kept closed when the train is running, and that it was the duty of the brakeman • — ■ two of whom were on the train — to see that they were closed, and that they were never opened by the trainmen except when the train stopped at a station for the purpose of discharging and receiving passengers, and as soon as this was done, the rules required the brakeman to close the doors; that the train stopped at Runnels and the vestibule between the second and third or the third and fourth cars was opened and both brakemen were on the platform; that after leaving Runnels and before plaintiff stepped off the train, the conductor went through the train and did not notice that any of the doors were open, and testified that the vestibules were well lighted. The conductor also testified that the vestibule doors could be opened or raised by passengers. The only theory upon which plaintiff can recover is that the doors of the vestibule, through which he stepped off the train, were opened and negligently left open by the defendant’s servants. It was the duty of the trainmen to see that all parts of the train were kept in a reasonably safe condition for the use of passengers and, wThile the company did not invite its passengers to move from one car to another, but on the contrary had a rule posted in its cars warning passengers not to do so, yet in view of the well-known custom and habit of passengers to go from one car to another for various purposes, it was the duty of the defendant to keep its passageway (its vestibules) between the cars in a condition reasonably safe for passengers to walk through. To be in a reasonably safe condition, these vestibules should be lighted and the doors closed. The evidence for plaintiff tends to show that the vestibule from which he stepped was not lighted and that the door had been left open through the negligence of someone, but the evidence does not show who was the negligent one. While the evidence shows that the vestibule door could have been opened by a passenger, there is no evidence that they were in the habit of opening them or that one was ever opened by a passenger. It was the duty of the brakeman to keep these doors closed while the train was in motion, and we think from the facts that the door was opened at Runnels, where the train stopped, and Avas opened when the plaintiff stepped off, the reasonable inference to be drawn is, that it was negligently •left open by the brakeman (Jones v. Railroad, 178 Mo. 528, 77 S. W. 890; Redmon v. Railroad, 185 Mo. 1, 84 S. W. 26; Raney v. Lachance, 96 Mo. App. 479, 70 S. W. 376), and there being some evidence that the plaintiff received some injuries, though very slight, we think he made out a prima-faeie case, and the judgment should not be affirmed on the ground that plaintiff was not hurt.

4. Plaintiff’s sixth instruction is as follows:

“The court instructs the jury that defendant was under no obligation to provide vestibuled trains for its passengers, but having done so it was its duty to maintain them in a reasonably safe condition. The presence of such an appliance on the train is a proclamation by the defendant that it has provided passengers a safe means of passing from one coach to another and an invitation for them to use it as their convenience or necessity may require. If you find from the evidence that the train upon which plain tiff was a passenger was made up of vestibuled coaches, and that the vestibule between two of said coaches was unlighted, the flooring or trap covering the steps up and open, and the outside doors open, and the steps unguarded; that under such circumstances said vestibule was not reasonably safe for passengers exercising ordinary care to pass through; then said defendant was negligent, and if you find from the evidence that plaintiff while passing through such a vestibule in the exercise of ordinary care was thrown off, fell or walked from said train by reason of said negligence of defendant, your verdict will be for plaintiff.”

This instruction is erroneous in that it told the jury, by providing a vestibuled train, defendant invited its passengers to go from one car to another. Vestibules serve to keep dust and smoke out of the cars, and a train with vestibules is safer than one without them; they also make the passage from one car to another, safer than it would be without them. But their presence is not an invitation to passengers to pass from one car to another, and a passenger going from one car to another on a moving train, when not invited by the company to do so, assumes the risk ordinarily incident to such conduct. In other respects we see no objection to the instruction, and we do not think defendant’s first instruction inconsistent with it, if the objectionable parts of plaintiff’s are stricken out.

Defendant’s second instruction reads as follows:

“The court instructs the jury that while it is true that the defense of contributory negligence must be pleaded and established by defendant, this does not mean that the evidence of such contributory negligence may not be furnished by the plaintiff himself or his witnesses; that what is meant by the defense of contributory negligence is that the plaintiff was guilty of some act which directly contributed to his injury. Although you may find from the evidence in this case that a trap door in the vestibule was left up, yet if you find that it was dark in the vestibule at the time plaintiff attempted to pass through it and he knew that fact or could have known that fact at the time by the use of ordinary care on his part and that the plaintiff attempted to go through said dark place from one car to another, when the train was in a rapid motion and if by reason of the darkness, plaintiff stepped off the train, then plaintiff was guilty of such negligence on his part as to preclude a recovery and you will find for the defendant.”

The act of the defendant in stepping off the train unquestionably contributed to his injury. Under this instruction, the jury might have found him guilty of contributory negligence, however prudent and cautious he may have been in passing from one car to another, and the instruction is clearly erroneous.

Defendant’s eighth and ninth instructions are as follows:

“8. The court instructs the jury that if the said vestibule through which, plaintiff attempted to pass, was lighted up in the usual and ordinary way as practiced by defendant and that plaintiff through absent-mindedness or by carelessly and negligently failing to observe his surroundings, walked off the car platform instead of into the car, then he cannot recover.”

“9. If you further believe or find from the evidence that the said trap door was removed by some passenger and not by defendant nor negligently left open or insecure by the defendant, then defendant is not liable.”

There was no evidence in the record upon which to predicate either of these instructions and they should have been refused. For the same reason plaintiff’s eighth instruction should not have been given. We see no substantial objection to other instructions given for either party.

For the errors above noted the judgment is reversed and the cause remanded.

Goode and Nortoni, JJ., concur in result.