Mitchell v. Chicago & Alton Railway Co.

BLAND, P. J. (after stating the facts). — 1. On the rehearing of this case (one having been granted) defendant’s counsel strenuously and ably argues that the evidence of plaintiff failed to make out a prima facie case and for this reason he should have been non-suited. This argument is predicated on the doctrine established in this State by a number of decisions by the appellate courts, that it is not negligence per se for one to step off á slowly moving train and, hence, if Lewis ordered plaintiff, to get off the car while it was moving slowly, it does not- follow that the order was negligently given. The petition alleges that the order was negligently given. To step off a slowly moving train, while not negligence per se, is, nevertheless,- some evidence of negligence; whether or not it is actually so is a question for the jury to be determined by the attendant circumstances in each case. Owens v. Railway, 84 Mo. App. 1. e. 147, and cases cited. The evidence of the plaintiff shows that his environment and the facili [150] ties furnished for alighting from the car were such as would warrant a jury to find that it was negligence for .an inexperienced person like plaintiff to get off that particular car while it was moving. 2. It is also contended by defendant, that the plaintiff, by his own evidence, convicts himself of such contributory negligence as to bar a recovery. Plaintiff’s evidence shows that he had had only three or four days’ experience as a laborer on a railroad and that he' was inexperienced in getting on and off a work train. If this is true, then he was not in a condition to appreciate the danger of getting off the car and had a right to rely upon the order of his foreman and presume that it was not dangerous to alight. Mason v. Railway, 75 Mo. App. 1. It is further contended that the plaintiff assumed the risk incident to getting off the.moving car. The doctrine of assumed risk rests on contract and cannot apply here, unless when plaintiff was hired, he was informed or knew that the work he was hired to perform would require him to get off moving trains. There is no such evidence in the record and hence the doctrine of assumed risk is not in the case. 4. We think under the pleadings and the evidence, the issues should have been confined to the following facts: First, whether or not Lewis ordered plaintiff to get off the. train while it was moving, if he did, then was. it negligence on the part of Lewis to give the order under the circumstances’? Second, was the plaintiff guilty of negligence contributing to his injury in attempting to alight from the train? Third, is the plaintiff hound by the release pleaded in the answer and offered in evidence at the trial 1 Plaintiff testified that the car was in motion when he attempted to get off, and all the evidence shows that it had moved from fifteen to twenty-five feet at the time he alighted. There is, therefore, no evidence tending to support the allegation brought into the petition by [151] the amendment, to-wit: “Defendant negligently and carelessly, while plaintiff was alighting from said ear, from which it was his duty to alight, moved the car without notice to him.” This allegation is flatly denied by plaintiff’s own evidence. He is bound by this evidence, unless he gave it under a misapprehension of the true facts. Windsor v. Railway, 45 Mo. App. 123. There is no evidence whatever that he did misapprehend the facts; on the contrary all the evidence shows the train was moving before he attempted to get off. There is evidence in the record tending to show it was plaintiff’s duty to get off the car as soon as it was unloaded, but this fact is not alleged in the petition nor is it alleged that, while in the performance of this duty, he was negligently thrown from the car by the defendant, therefore, he was not entitled to the instruction authorizing a verdict in his favor, if the jury found that it was through the negligence of defendant he was thrown from the car while in the performance of his duty to get off. De Donata v. Morrison, 160 Mo. 581, 61 S. W. 641; Wolfe v. Supreme Lodge, 160 Mo. 675, 61 S. W. 637; Holwerson v. Railway, 157 Mo. 216, 57 S. W. 770; Hutchinson v. Realty Co., 88 Mo. App. 614; Pegan v. Separator Co., 92 Mo. 236; Pryor v. Railway, 85 Mo. App. 367. The instructions given are not in harmony with the views herein expressed. Some of them went outside any issues made by the pleadings and are for this reason erroneous and require a reversal of the case. If plaintiff is so advised, we think he should be permitted to amend his pleadings so as to meet every phase of the evidence as developed on the trial. The judgment is reversed and the cause remanded. All concur.