Harris v. Hannibal and St. Louis Railroad Company.

As the demurrer to the evidence admits not only the truth of the facts disclosed by it, but also every inference in favor of the plaintiff which could be reasonably deduced from them, we are of opinion that the court did not err in overruling the demurrer. The train men and several others who were passengers in the caboose when the cars were coupled were introduced as witnesses on behalf of defendant, all of whom testified that the coupling was made in the usual manner, and that there was no jolt or jar more than was usually incident to the coupling of freight cars, flatly contradicting plaintiff in these particulars. In view of this state of facts, and that discomforts and dangers are more incident to travel on freight than on passenger trains, and hence calling for a higher degree of care on the part of the passenger, the eleventh instruction asked by defendant and refused by the court ought to have been given, the giving of which is fully warranted by the cases of Henze v. Railroad, 71 Mo. 636, and Powell v. Railroad, 76 Mo. 80.

The instruction is as follows: "If the jury believe from the evidence that plaintiff knew, or by the exercise of ordinary care, could have known, that the train had stopped to do some switching, and by the exercise of ordinary care could have known that a part of the train was likely to be backed against the part to which the caboose was attached, and that some concussion or jar would likely be produced in the caboose, and that the plaintiff then, without thinking about the approach of the cars, and without paying any attention to whether the cars were approaching or not, left his seat and stood up in the car, and was thrown down and injured, when he would not have been had he kept his seat, or resumed the same before the cars struck, then the plaintiff was guilty of such contributory negligence as bars his recovery, and the jury must find for defendant."

For the refusal to give this instruction the judgment is reversed and the cause remanded.

All concur.

Judgment reversed and cause remanded.

NOTE BY THE REPORTER. A case somewhat resembling this is Prest., etc., v. Leonhardt, 66 Md. 70, in which it was held that while it is a reasonable safeguard against accidents to forbid departure from a car while it is in motion, a passenger on the upper floor of a horse car does not violate this regulation in walking, the car being in motion, toward the rear end for the purpose of descending to the lower platform. The court said:

"When a person leaves a car while it is in motion, he is affected by its moVOL. LVIII— 15

Harris v. Hannibal and St. Louis Railroad Company.

mentum, and incurs more or less danger. It therefore seems to us a reasonable safeguard against accidents, to forbid departure from the car at such a time. But the plaintiff was not violating this rule of the defendant when the accident occurred. He was walking on the upper floor of the car on his way to the place where he was to descend to the lower platform. When he reached this platform, he would be in a position to depart from the car; and he would then be required to see that it was stopped before he left it. But surely it is very unreasonable to deny to a passenger the right to move about on the floor of a car while it is in motion. And the concurring experience of the travelling public will show that such restraints are not imposed. It does not seem to us that we can declare that the act of the plaintiff was in law inexcusable negligence. It was a matter which the jury were properly required to consider in connection with the circumstances existing at the time; and if they thought that it showed a want of reasonable caution, it was their duty so to find by their verdict."

Wood says (Ry. Law, § 301): "A passenger is not bound to keep his seat during the whole trip. Gee v. Metropolitan Ry. Co., L. R., 8 Q. B. 161. In the case last cited, the passenger stood up to look out of a window, and leaning against the door, which had been improperly secured, he fell out and was injured. COCKBURN, C. J., said: The passenger did nothing more than that which came within the scope of his enjoyment while travelling, without committing imprudence. In passing through a beautiful country, he is constantly at liberty to stand up and look at the view; not in a negligent, but in the ordinary manner of people travelling for pleasure.' In an English case, Adams v. Lancashire, etc., Ry. Co., L. R., 4 C. P. 739, a passenger left his seat several times and closed the door of the coach, which was insufficiently fastened. The fourth time he made the attempt he fell out and was injured, and the court held there could be no recovery."

See West. Md. R. Co. v. Stanley, 61 Md. 266; s. c., 48 Am. Rep. 96.

A passenger, hearing his station announced, and after the car had entered it, left his seat and stood inside the closed door, for the purpose of hastening his departure. While standing the car collided with another and he was thrown down and hurt. Held, that the question of contributory negligence was for the jury. Barden v. Boston, etc., R. Co., 121 Mass. 426; Worthen v. Co., 125 Mass. 99.

Grand Trunk Ry. On the cars entering the station the plaintiff arose from his seat to button his coat, in preparation for leaving the car, and was thrown down by the collision of the train with a bumper at the end of the track. There is no ground for imputing negligence to the plaintiff. It is probable that if he had retained his seat the injury would not have happened. He had no notice of danger, and had a right to assume that the train would be stopped in the usual He did as passengers usually do, and what the company must have known they were accustomed to do, and the plaintiff could not have supposed that the act was inconsistent with safety." Wylde v. Northern R. Co., 53 N. Y. 156.

manner.

* * *

Passengers in a street car, after having signalled to stop, may arise and prepare to leave the car. "There is no rule of law which requires him to keep

Harris v. Hannibal and St. Louis Railroad Company.

his seat until the very moment that the car has actually stopped." Nichols v. Sixth Ave. R. Co., 38 N. Y. 131.

In Lapointe v. Middlesex R. Co., Mass. Sup. Ct., Feb. 24, 1887, upon the trial of an action to recover damages received by the plaintiff from being thrown down while riding in an open street-car on defendant's road, defendant requested the following instruction: "If the jury believe the plaintiff took an unsafe position in standing up between the seats in an open car, she cannot recover." Held, properly refused. The court said: “It is said by Chapman, J., in speaking of horse railroad cars in Meesel v. L. & B. R. R. Co., 8 Allen, 234, the seats inside the car are not the only places where the managers of the train expect passengers to remain, and it is notorious that they stop habitually to receive passengers to stand inside till the car is full, and then to stand upon the platforms till they are full, and continue to stop and receive them after there is no place to stand except on the steps of the platform.' These remarks apply to the open cars used by the horse railroads as well as the closed cars. That such positions are less safe than those in the seats, from the danger from jolting, stopping or the motion of the cars, especially around curves, is certainly true, but they are not therefore necessarily so hazardous that one occupying such a position should be thereby prevented from recovering if injured by want of due care in the management of the cars. The passenger has a right to believe that it will be conducted and operated in view of the fact that some of the passengers are or may be standing and steadying themselves by the seats, rails or straps that may have been provided for that purpose.”

In Camden, etc., Steam Ferry Co. v. Monaghan (Penn.), 10 W. N. Cas. 47, the plaintiff was a passenger on the defendant's ferry boat, and as the boat approached the wharf, stood up in the cabin, as others did and was thrown down and injured by the collision of the boat with the bridge. The court said: "Of course it is true that if she had remained in her seat she would not have been injured, but it does not necessarily follow that her act of leaving her seat was contributory negligence. Had she occupied a place of manifest danger, as for instance, a position very near to the end of the boat, where there was no railing, the contention of the defendant would be much more appropriate, and would perhaps be conclusive against her. But the position she was in at the moment of the accident was not one of apparent danger at all. ✶✶✶ It is the uniform habit of persons riding on steamboats to be upon their feet at will while the boat is in motion, and especially as it approaches the landing. It is one of the most comfortable and satisfactory features of steamboat travel that passengers are at liberty to move about from place to place on the vessel while it is in motion."

In The Manhasset, U. S. Dist. Ct., East. Dist. Virginia, Feb., 1884, HUGHES, J., held that where in a libel for damages for the killing of a husband and father the ferry steamer inflicting the injury was in fault, but the deceased had violated rules of the managers, forbidding passengers to step over guardchains and passing off to the wharf before the boat was drawn up and made fast at the landing, in doing which deceased received fatal injuries, but in doing so only did what men and boys habitually and constantly did on the ferry, without restraint or remonstrance from the management, this was not

Harris v. Hannibal and St. Louis Railroad Company.

such contributory negligence on the part of deceased as to exonerate the claimants from responsibility in damages, the managers of the ferry having, by neglecting to enforce their rules, held out to passengers that there was no practical danger in violating them, and thereby put the deceased off his guard as to the danger attending the practice, which was habitually permitted. The case turns upon the question: "Was any thing presented to arrest his atten tion and to warn him of the fate which overtook him?" because it is a principle of the law of contributory negligence that a carrier is not necessarily excused because the injured person knew that some danger existed through the carrier's neglect, and voluntarily incurred the danger. Clayards v. Dethick, 12 Q. B. 439. Where for instance a traveller crossed a bridge which he knew to be somewhat unsafe, but which its managers had not closed, nor warned the people not to pass, and the traveller's horse fell through and was killed, it was held that he was not in fault, and damages were recovered. Humphreys v. Armstrong Co., 56 Penn. St. 204. So it was held that the plaintiff might recover where a passenger train was moving very slowly by, but did not stop at a depot where it should have stopped, and a passenger was injured by leaping off, notwithstanding the usual warning that passengers must not get off the train while in motion, the slow gait of the train seeming to invite the passenger to get off. Filer v. N. Y. Cent. R. Co., 49 N. Y. 47. These cases sufficiently illustrate the principle of the law of contributory negligence, that though the passenger must do what a prudent person should do to avoid accident in any particular circumstance in which he may stand, yet if he has reason to infer from the conduct and policy of the carrier that no prac tical danger would attend an act, though there might be some risk, and if he is thereby thrown off his guard respecting it, the carrier is liable.

It is not necessarily negligent for a passenger on a ferry-boat to stand near the bow while the boat is landing. Peverly v. City of Boston, 136 Mass. 366;

s. C., 49 Am. Rep. 366.

In Cleveland v. N. J. Steamboat Co., 68 N. Y. 306, the court said: "We do not think that the evidence will warrant us in holding, as matter of law, that the plaintiff is chargeable with contributory negligence in taking his place inside the bulwarks, yet outside the partition between the gangway and the main part of the boat. There is nothing to show that it was a position of such obvious or well known danger as that an ordinarily prudent and cautious man would hesitate to remain standing there, at the moment of the starting of the boat, to take leave of friends on the wharf."

In Continental Passenger Ry. Co. v. Swain, Penn. Sup. Ct., Jan., 1883, 13 W. N. Cas. 41, a woman entered a crowded street car, on a stormy night, and being unable to obtain a seat or a strap by which to hold on, was obliged to stand unsupported, and was thrown down and injured by a sudden and violent jerk of the car. It was held that she was not guilty of contributory negligence. So it was held in West Phila. Pass. Ry. Co. v. Whipple, 5 W. N. Cas. 68, where a woman, unable to obtain a seat, and unwilling to disarrange her dress by reaching a strap, held on by the hands of a friend - a woman. The court said: "Possibly a woman may be so fantastically and foolishly hooped, wired, and pinned up as to deprive her of the natural power to help herself; but if so, the question is one of fact and not of law."

Kincheloe v. Priest.

KINCHELOE V. PRIEST.

(89. Mo. 240.)

Bailment negligence — burden of proof.

In an action for the defendant's negligence in suffering a note given to him for collection to be barred by the statute of limitations, there is no presumption that he was to have compensation, and the burden of proof is on the plaintiff to show his liability.

HE opinion states the case. The defendant had judgment below.

'THE

Smoot & Pettingill, for appellant.

W. T. Kays and D. H. McIntyre, for respondent.

BLACK, J. The plaintiff, in 1867, before leaving this State, gave to the defendant's testate, Green, fourteen notes, and took a receipt therefor, in which it is stated that the notes are to be collected and accounted for. Green died in 1882, and plaintiff filed an account in the Probate Court, giving a list of the notes and stating that he did not know whether the notes had been collected; that they could have been collected, and if not, deceased suffered them to become barred. by the statute of limitations; that deceased was to have five per cent for his services, and that the estate owed him, etc.

Three of the notes, signed by Downing and others, and one small one signed by Green, in all amounting to about seven hundred dollars, were found by the executor among the papers of the deceased, with credits upon the Downing notes. Some correspondence offered in evidence shows that from 1867 to 1882, Green collected and remitted to the plaintiff various sums of money, and the evidence is strong to the effect that he remitted, or applied, all money collected. Green, in a letter dated in 1867, says Downing had promised payment in the following January. In 1881, he says Downing had promised several times to pay, and expressed some fears about the Arnold note, and in 1882, speaking of this same note, which was signed by Downing, he says he let the date slip out before he knew it, and that Mr. Downing said "a note never dies with him." The real contest is as to the barred notes.

The court, for the plaintiff, instructed the jury that if deceased, while in the discharge of his trust, negligently permitted the statute