Taylor v. Missouri Pacific Railway Co.

Ellisoh, J.

This is an action for personal injury. Plaintiff recovered judgment for two thousand dollars, and defendant appeals.

Defendant offered no evidence at the trial, and but ■one instruction, which was in the nature of a demurrer to the testimony. The material portion of the petition was as follows:

“That, on the morning of May 2, 1883, the plaintiff purchased a ticket from defendant’s ticket agent at the town of LaMonte, in said county (Pettis), authorizing him, the said plaintiff, to ride upon defendant’s cars from LaMonte to Sedalia, in said Gounty, and return to said town of LaMonte, and that plaintiff went to Sedalia and returned to LaMonte on defendant’s cars on said day, but, on returning to said town of LaMonte, the defendant’s train of cars, on which, plaintiff was riding by authority of the ticket which he had purchased, failed to stop at LaMonte, although plaintiff requested the conductor in charge of said train to stop said train at said station, and let said plaintiff off; and plaintiff says that he was on a train that regularly stopped at said station, and it was the duty of the employes of defendant in charge of said train to have stopped said train at said station and let plaintiff off said train. Plaintiff says, that, afc that time, his wife was dangerously sick at LaMonte, and he was compelled to get off at that station to attend to her, and while said train failed'to stop at the depot at LaMonte, as it was accustomed to do, and as *340 plaintiff supposed it would do, yet said train, on approaching said depot at said station, slackened its speed and passed said depot and station slowly, so that plaintiff had reason to believe, and did believe, that he could get off said train, while thus slowly moving, with safety to himself ; and, upon being informed by said conductor in charge of the train that said train would not stop at said depot, the plaintiff attempted to get off and alight from said train while the same was thus slowly moving past said depot, the plaintiff then and there using due caution and care in attempting to get off said train, and, by reason of said train thus moving, plaintiff was thrown violently on his left shoulder and arm, breaking the-bones of his said shoulder and injuring his left arm; that said injuries were of a serious and permanent nature,, permanently disabling plaintiff ’ s left arm and shoulder.”'

Defendant’s answer was a general denial.

Defendant objected to any evidence under the petition, the grounds of objection being that it stated no cause of action; showing upon its face that the injury happened by reason of the contributory negligence of plaintiff. This objection was overruled. What acts or conduct amount to contributory negligence is necessarily governed by the circumstances of the particular case. The recklessness or heedlessness should be very apparent to justify a declaration by the court, as a matter of law, that certain conduct on the part of the complainant amounted to contributory negligence. Where it is. questionable, it is the province of the jury to say, whether,- under the circumstances of the particular case, the conduct amounts to contributory negligence. “For one to jump from a train of steam cars while in rapid motion, voluntarily, and not to avoid some threatened danger, is negligence, but to step from a car while in motion to a station platform, may or may not be negligence. Whether it is or not is a question of fact for the jurors to determine from all the circumstances. Doss v. Railroad, 59 Mo. 27 ; Kelly v. Railroad, 70 Mo. 607 . *341 It would be better, in such cases, to submit the question by leaving it to the jurors to determine whether a prudent person, in a like situation, and under like circum.stances, would have made the step or leap.” Leslie v. Railroad, 88 Mo. 50 . In Doss v. Railroad ( 59 Mo. 27), it is said that acts, such as shown' in the petition, “are .risks which the most prudent men will take.”

It follows that, as the petition presents a case for "the jury, the court was correct in its'ruling on the objection presented.

II. It is next urged that defendant’s demurrer to the evidence should have been sustained, on the ground that the testimony showed the injury to have happened by reason Of plaintiff’s contributory negligence.

It would, as a general rule, be sufficient answer to this to say that no such defence was interposed by defendant. The alleged contribution to the accident should have been set up in the answer. Northrup v. Ins. Co., 47 Mo. 435, 444 ; Thompson v. Railroad, 51 Mo. 190 ; Donovan v. Railroad, 89 Mo. 147 . In the latter ■case no evidence was offered by defendant, but an instruction, which amounted to a demurrer, was asked ; ■of this the court say: “The defendant aswered alone by general denial. Contributory negligence is a matter ■of defence, and must be pleaded to be available as a de-fence. No such issue of fact was presented in this case, .and, for these reasons, the instruction was properly refused.” This is the latest ruling of the supreme court ■on this question. That case, in connection with that of Milburn v. Railroad ( 86 Mo. 104 ), appear to establish :a distinction as to contributory negligence in the matter of pleading. In the latter case it is held that, though ■contributory negligence is not pleaded, yet, if plaintiff’s own proof “ clearly establishes that the injury he complained of was as much the result of his own negligence as that of the party of whose negligence he complains,” he cannot recover. In the case before us we do not •consider that the evidence, on part of plaintiff, showed *342 negligence in Mm sufficient to justify the court in declaring, as a matter of law, he could not recover. The question was properly submitted to the consideration of the jury.

We do not regard the damages assessed as excessive, under the rules governing appellate courts, in considering such questions.

The judgment is affirmed.

Philips, P. J., concurs in the result. Hall, «T., absent.