Le Duc v. St. Louis, Iron Mountain & Southern Railway Co. , 159 Mo. App. 136 ( 1911 )

COX, J.

Action for damage for personal injury. Judgment for plaintiff for two thousand dollars and defendant has appealed. The first question to determine is whether on the facts proven plaintiff has a cause of action.

On Sept. 18, 1909, plaintiff and a companion by the name of Parsons bought tickets at Hurley, a station on defendant’s road south of Springfield and intended to go over defendant’s road to Crane, a station a few miles farther south, to attend a street fair. The train On which they were to go was a mixed train with nine empty freight cars next to the engine, then five loaded freight cars, then two passenger coaches in the rear. This train carried passengers regularly and was a daily train running on a regular time schedule. Whether or not there were any exclusively passenger trains run over this road does not appear. When the train came in from the north it stopped with the engine and some cars south of the depot, and loaded cars opposite and north of the depot, and the passenger coaches, according to plaintiff’s testimony, at least three hundred feet north from the depot. The train remained there about ten minutes, during which time freight was unloaded and the nine empty cars switched to another track. The plaintiff and his companion did not attempt to board the train until after it started and then attempted to board it while in motion. Parsons got safely aboard but plaintiff’s foot slipped off the step while he was attempting to get on board; he fell, and his right foot was badly crushed by the train.

The testimony in behalf of plaintiff as to the circumstances attending the injury is substantially as follows: That the platform was made of minning chats and for a distance of 135 feet north of the depot was 12 to 15 feet wide, then, from there on for some distance there was what plaintiff’s witnesses termed a walk of the same material about four feet wide. That when this train came in, it stopped with the passenger coaches at least three hundred feet north of the depot and along side the chat walk. That the usual practice of defendant in stopping its mixed trains going south was to stop them so the passenger coaches would be opposite the platform, but if not so stopped, the train would be pulled up and stopped again with the coaches at that point for the reception of passengers before leaving the station. While these witnesses did not directly explain what they meant by “the. platform”, it may be inferred that they meant the portion that was twelve to fifteen feet wide. Plaintiff’s testimony further showed that after the train started the conductor boarded it and as he did so hallooed, “All aboard.” The train was then in motion and moving about as fast as a man would walk. Upon discovering that the train would not stop, plaintiff attempted to get on and as he did so, his foot slipped off the step, the motion of the train threw him down and his foot was crushed by the train. On cross-examination plaintiff admitted that the place at which the passenger coaches were stopped was a safe place at which to board the train and that he had ample time to have boarded it there had he desired to do so and gave as a reason for not doing so that he did not think it was right and he expected, because they were so far away, that the train would pull up and stop again.. Defendant’s testimony differed from plaintiff’s as to the width of the narrow part of the chats, and tended to show that all the chats were put in at the same time and that all the ground covered with chats was used in the same way and that there was no custom to stop this train or its passenger coaches at at any particular place and that by reason of being required to handle freight and freight cars it was not practical to always stop it coaches at one place; but as the verdict is for plaintiff it must be upheld if there is substantial evidence to support it.

That it was the duty of defendant to furnish its passengers a reasonably safe and convenient place at ■which to get on and off its coaches cannot be questioned. In the performance of this duty, however, it was not necessarily required to stop its passenger coaches at any particular part of the platform, or at the platform at all, so the place at which the coaches were stopped was a reasonably safe and convenient place for the .accommodation of the passengers. [Deskins v. R. R., 151 Mo. App. 432, 132 S. W. 45.]

The fact that the train was a mixed one, carrying both passengers and freight and that the length of the train and the duty to handle freight at the station made it inconvenient to always stop at the same place is not important, except for its value as evidence bearing upon the question of what was the usual practice of the defendant in stopping the coaches of its mixed train going south at a certain point for the reception of passengers. The duty of the defendant to its passengers was not enlarged or restricted thereby. Ordinarily the carrier discharges its duty to its passengers in this regard by placing its coaches at a point reasonably safe and convenient for the use of its passengers in getting on and off its trains; but if it be shown, as plaintiff’s testimony tended to show in this case, that the carrier usually placed its passenger coaches at or near a certain place, then a different rule obtains. When this custom exists, the passenger who knows of the custom has the right to assume, in the absence of notice to the contrary, that the coaches will be placed at the usual stopping place and be then given an opportunity to board the train at that place, and a failure to observe the usual practice in that particular by the carrier would be negligence. That the train may have stopped with the coaches at another point some distance away and remained there while the freight was being unloaded, and switching done, would not be notice to the passenger that he was expected to walk up the track, or platform, if it be so called, and board the train at an unusual place.

Plaintiff, of course, must show negligence on the part of defendant and that this negligence caused the injury complained of. He could only do that in this case by proving that defendant had a usual and customary place at which to stop the passenger coaches of its mixed trains going south on the schedule of this train, and that it departed from the usual practice on this day, and by reason thereof he was misled and ' induced to refrain from boarding the train while it was standing. Where the chats were, or how wide they were, or how long the train was, bears no relation to this case except as evidence to establish or disprove the usual custom of defendant in stopping its coaches at or near a certain place for the reception of passengers. So the call of “All aboard” by the conductor after the train started, if made by him, only went to the question of notice to plaintiff that the train would not stop again and was leaving' the station. Plaintiff’s testimony tended strongly to support the contention that defendant did usually stop its mixed trains going south on the schedule of this train, with its passenger coaches at or near a place much nearer the depot than they were stopped on this day and that he knew that fact and expected the train to pull up and stop again and for that reason did not go back to where the coaches were standing to get on board. That he only attempted to board the train after discovering that it was leaving the station and would not stop the coaches at the usual place. That the train was moving about as fast as a man would walk at the time he attempted to board it. We think his testimony made a prima facie case of negligence against the defendant and under the circumstances he was not guilty of contributory negligence, per se, in attempting to board the train at that time and the demurrer to the testimony was properly overruled. [Swigart v. R. R., 75 Mo. 475; Fulka v. R. R., 111 Mo. 335, 19 S. W. 818; Murphy v. R. R., 43 Mo. App. 342; Sikenberg v. Transit Co., 103 Mo. App. 442, 80 S.W. 360; Spencer v. Transit Co., 111 Mo. App. 653, 86 S. W. 593.]

While it has been often held that it is not negligence per se to attempt to board a slowly moving train as the cases just cited show, yet there can be no question that there is always more or less danger attending the act of boarding a moving train. The amount of danger depending upon the surroundings and speed of the train and the activity and experience of the party. Plaintiff in this case had never boarded a moving train before, and had there been no showing that he had the right to expect the train to stop the second time, and instead of boarding it while standing, he had purposely waited until it started and then attempted to board it, we should have no hesitancy in holding under these circumstances that he would have been guilty of negligence that would bar a recovery.

The instructions given on behalf of plaintiff are assailed on various grounds. We shall notice them sufficiently to indicate our view of the law of this case. Instruction No. 4, for plaintiff is as follows: “You are instructed that it was the duty of the defendant to stop its train on which plaintiff desired to take passage at its passenger platform for the purpose of allowing any one who desired to take passage thereon to board said train, unless you believe from the evidence that it had been accustomed to stop its mixed trains at some other place for such purpose, and plaintiff had a right to assume that the train on which he desired to take passage would be stopped at said platform, unless he was notified to the contrary in time to board said train while it was stationary, or unless it was the custom- of defendant to stop said train for the purpose of receiving passengers before it reached said platform and draw it past said platform without stopping, and plaintiff knew, or by the exercise of ordinary care might have known of such custom; and stopping at the platform means stopping so that the passenger coaches would be opposite said platform.”

This instruction would have been correct had the platform been so constructed that there could be no doubt as to its boundaries. For example; had it been constructed of lumber and been elevated from the ground as many depot platforms are. With a platform constructed in that way this instruction would have been correct. Not, however, because it is the absolute duty of the carrier under all circumstances to stop its coaches opposite the platform, but because a passenger observing the platform would be led thereby to believe that the carrier usually received its passengers at that place and had provided the platform for that purpose. But in this case the platform is not elevated. It is constructed by placing chats upon the ground, and if we consider the platform as embracing only that portion where the chats were twelve to fifteen feet wide and designate the remainder as a walk, merely, yet this walk and the platform proper were both on the saíne level, constructed of the same material and a passenger.could board a train as safely from one as the other. There was nothing about the construction of the platform itself, as distinguished from the walk, which would indicate to a passenger when this train stopped with its passenger coaches opposite the chat walk, that it’would pull up and stop again before leaving the station. The only thing in this case that would justify the plaintiff in assuming that the train would be stopped the second time was the fact, if it were a fact, that it was the usual and customary practice to stop these coaches nearer the depot and plaintiff’s knowledge of that custom.

The jury in following this instruction might assume, or find from the evidence, that, “The platform” meant only that portion where the chats were twelve to fifteen feet wide and if so then this instruction meant that it was the duty of defendant to stop the coaches of this train opposite that part of the chats unless a custom to stop at another place was shown, and the burden of showing this custom was, in effect, placed upon defendant. Under this instruction, the jury may have found that there was no place where defendant usually stopped the coaches of its mixed trains, running on the schedule of this train, and yet have found against it because it did not, on this day, stop its coaches opposite what they believed to be the platform. This instruction was erroneous. It permitted a recovery upon a wrong basis. The essential facts underlying plaintiff’s cause of action upon which he must depend to charge defendant with negligence and which he must prove to recover at all are, that the defendant did have a place at or near which it usually stopped the passenger coaches of its mixed trains, running south on the schedule of this train, and that it did not stop them there on the day of this injury. Unless these facts were proven plaintiff made no case. If they were proven, then it was wholly immaterial whether the usual stopping place was shown to be opposite what might properly be deemed the platform or not.

As this case is presented on the record here the negligence of defendant upon which plaintiff must rely can only be shown by proof that defendant did have a usual and customary place at or near which to stop its passenger coaches in mixed trains running south on the schedule of the train which caused plaintiff’s injury and that that practice was not followed on this occasion and that issue should have been plainly presented in the instructions.

Other instructions given on behalf of plaintiff are assailed, and some of them are open to criticism, but what we have said will be a sufficient guide for the preparation of instructions in another trial and it will not be necessary to discuss plaintiff’s other instructions or defendant’s refused instructions in detail.

Judgment reversed and cause remanded.

All concur.