Warden v. Missouri Pacific Railway Co.

Gill, J. The foregoing statement of the case we have taken almost entire from that of the plaintiff, as we find by reading the record, it is in the main a fair presentation of the same. To say the least, the evidence tends very strongly to sustain such statement, and since, on this appeal, we are only called upon to pass on the legal effect of the reasonable tendency of plaintiff’s evidence, we are justified in adopting a statement of what that evidence tends to prove. Defendant’s counsel ask a reversal of this case on the ground that under the evidence she was not entitled to recover, that, in any event, plaintiff was guilty of contributory negligence. Upon a careful review of this record, with the authorities as to the legal questions involved it appears that it may be well doubted if this appeal was taken in good faith. There is no question but there is ample evidence to sustain the charge of the negligence as against the defendant, in inducing and directing this passenger to alight at a place distant from the station, among various railroad tracks, cars, engines and ditches [636] and in the midst of a dark and stormy night, when the railway company had contracted to carry her safely to the depot platform at Pleasant Hill. And, to say the least, there is no want of evidence tending to show that by reason of this alleged negligence plaintiff, Mrs. Warden, was injured ; and further there was abundant evidence to justify the trial judge in finding, as he did, that Mrs. Warden was not guilty of contributory negligence which deprived her of her right of action against the defendant. The plaintiff’s case was fully made out under the law announced in the following authorities: Hutch, on Car., secs. 615, 616; McGee v. Railroad, 92 Mo. 208; Winkler v. Railroad, 21 Mo. App. 99; Kelley v. Railroad, 70 Mo. 609; Railroad v. Buck, 96 Ind. 356; and authorities there cited and discussed. In addition see cases as to contributory negligence in such case. Wilson v. Railroad, 3 N. W. Rep. 333; Mark, Adm'r, v. Railroad, 16 N. W. Rep. 367; Railroad v. Buck, supra, p. 360, etc. The two decisions cited by appellant’s counsel, one from the District of Columbia (2 McArthur, p. 42) and one from Massachusetts (103 Mass. 510) do not cover the points of the case at bar, and do not warrant the defendant’s contention here. We see no reason, whatever, for disturbing the judgment of the circuit court, and the same is therefore affirmed. The other judges concur.