Stafford v. Hannibal & St. Joseph Railroad

Philips, P. J. — I. The only questions for determination are as to the action of the court in giving and refusing instructions. It is strenuously urged by defendant that the first instruction given for ifiaintiff is in conflict with the second given on behalf of defendant. The contention is, that the said second instruction declared that the failure to have a railing on the platform was not negligence, whereas the said first instruction predicated a right of recovery on account of the absence of such railing. This, we hold, is not a fair construction ‘of the first instruction. Its palpable import is, that if the jury found that the plaintiff was some three feet above the ground, without railings to protect persons from walking off, and the defendant failed and neglected to have necessary lights there on such a night to enable passengers to pass from the platform in safety, then they could find for plaintiff. It does not tell the jury they could find the existence of negligence from the fact of the absence of such railing. While defendant could have escaped responsibility for the injury, had it railed in the platform, at that point, yet, not having done so, it became its duty to its passengers to protect them in the night time against the danger of falling therefrom by keeping a light at such place. This is the obvious purport of the direction to the jury. It is incredible that the jury could have been misled by it, when the court in another instruction explicitly told them that the defendant was not required to maintain any railing there. II. The same objection is lodged against the second instruction given on behalf of plaintiff. We think it is quite apparent that this instruction imputes two grounds of negligence to the defendant; one for failing to have the platform properly lighted, and the other that the [341] “platform had been negligently and improperly constructed for the purpose of a platform for a passenger depot.” Wherein, then, is this instruction out of harmony with the second given for defendant % It refers to the manner of the construction of the platform for the purposes of a passenger depot. But, by the instruction given for defendant, the court simply advised the jury that, in considering this question of the construction of the platform, the mere absence of a railing should be excluded. Its effect, therefore, was to restrict the inquiry and limit the conclusion of the jury to the ascertainment of such defect outside of the want of such railing. To meet this inevitable construction as to the meaning of the instruction, the learned counsel for defendant contends that the petition is based solely, in this particular, on the failure to have the railing. We do not consider this a liberal construction of the petition. The petition imputes two defects to this platform. It charges that the platform was negligently and improperly constructed. It then specified that it “was ■constructéd for freight depot purposes, and was built around said depot some three feet above the ground.” This is a distinct defect alleged. The charge is, that while ■using it as a passenger depot, they constructed the platform on the plan of a freight depot, leaving the platform high for the convenience of receiving and discharging freights. It was left three feet above the ground, so as to render it dangerous for a passenger to miss his way or footing and fall from it to the ground. The petition then follows up this averment with the further additional allegation, that no railing was maintained around the platform to protect passengers against the danger incident to the negligent construction. And as more clearly indicating the purpose of the pleader to aver two defects in this particular, the statement is followed with the allegation: “that defendant knew, etc., that said plat [342] form was not properly constructed, and that there should have been erected along the outer edge a railing or other barrier.” Thus the two things are enumerated, and the charge is, that defendant knew of the existence of both. It was for the jury to say, from all the facts, whether a platform for the use of passengers at such a point,' built three feet above ground was properly or negligently constructed. And there was evidence from which, the jury might not unreasonably infer that it was unnecessarily and negligently left in that condition. The-evidence showed that the platform on the south side had been originally constructed just as on the west side. But it had been lowered so as to leave it only twelve or eighteen inches above the ground, while this was left three feet high, along which passengers, coming and going to its trains, passed day and night. The second instruction was based on this aspect of the case. Although the jury in the second instruction given for defendant were told to disregard the want of any railing, thereby excluding all evidence as to that, they were not directed not to consider the question of the negligent construction of this platform in other, respects. And even if it were conceded that defendant’s construction of the petition is admissible, it would not follow that the verdict should be disturbed. It is observable ■that the instruction under review does not state the two grounds of negligence, the defective construction of the platform, and the absence of any light, in the alternative, and direct the jury that they could find for the plaintiff if they found either defect to exist. But the-' instruction is in the conjunctive, and required the jury to find that both the defects existéd, n,nd that no necessary light was present. So we are bound to presume that the jury, if influenced at-all by this instruction, found that defendant was guilty of negligence in not having a light at the place in questi on. In such case,, the verdict would stand with or without the other fact* Gaty v. Sack, 19 Mo. App. 471. [343] It was most inexcusable negligence on the part of ¡defendant not to have a light at the northwest corner of the depot. And there being really no contradictory proof touching this fact, and nothing to palliate the omission, we do not see how the jury could have returned a different verdict. III. Counsel for defendant seem to intimate in their brief that the high degree of care, which the law exacts of railroad carriers toward passengers, does not extend to the obligation to provide for their safety after leaving the car. Of course the matter of due care and vigilance is always relative, having regard, in such a case as this, to the danger and peril to be anticipated. But the law does require of railroads to provide reasonably safe landings for its passengers, as, also, like means of access to and egress from its stations and premises. The law “requires of the defendants (the railroad companies) due regard for the safety of passengers, as well in the location, construction, and arrangement of their station buildings, platforms, and means of egress, as in their previous transportation. It is argued ih this case that the platforms were not properly constructed, lighted or guarded, and that the defendants were guilty of negligence in backing down the engine without proper lights or signals. The. bare statement of these matters shows that it is appropriately the province of the jury to settle them.” Gayner v. Old Colony, etc., My. Co., 100 Mass. 215 ; Patten v. Chicago, etc., Ry. Co., 32 Wis. 329, 333, 334. IY. It is, also, objected that the instruction given for plaintiff did not properly submit to the jury the issue respecting the contributory negligence of the plaintiff. Both of the instructions employ the terms “without fault on his (plaintiff’s) part.” If the injury was inflicted without plaintiff’s fault, certainly he was not guilty of contributing to it. We know of no decision disapproving of such ah instruction. Other questions are discussed by counsel in brief, [344] but as they present no principle not well settled against defendant’s contention, and as tbe judgment was for the right party, we will not review them. Tbe other judges concurring, the judgment of the circuit court is affirmed.