Larrance v. Missouri Pacific Railway Co.

ELLISON, J. Plaintiff was an assistant or helper to the mail carrier on one of defendant’s trains. He was injured, and charges it to defendant’s negligence. He obtained a verdict in the trial court which was after-wards set aside and a new trial granted. He thereupon appealed. The new trial was granted for the reason that the trial court thought error had been committed in submitting the case to the jury on the theory that as a matter of law plaintiff had not been guilty of contributory negligence, and in refusing to submit the question of his contributory negligence. It is undoubtedly true that' in a case where there could not be two opinions in the minds of reasonable [341] men, a trial court may peremptorily declare that the plaintiff has not been guilty of contributory negligence. It may do so in plaintiff’s favor as well as it could declare that as a matter of law there was contributory negligence on his part. [Brown v. Railroad, 31 Mo. App. 661; Beach on Contributory Negligence, secs. 447-449.] But in this case the question of his negligence should have been submitted to the judgment of the jury and the court was right in granting a new trial. The evidence disclosed that while riding in the mail car, the train going at a high rate of speed, the hose or air coupling extending along under the train became separated between the mail- car and the tender to the engine. That it made a loud rapping noise under the car by being dragged along in that suspended or “dangling” position. The noise was so unusual that it alarmed plaintiff and he says he did not know what was the matter, and with the intention of seeing, if he could, he went to the door in the side of the car, put out his head and looked out, when he was struck by a stone on the nose. The theory plaintiff advances is that the dragging hose had a metal end or “knuckle,” and that this, striking the ballast stones in and at the side of the track, threw them into the air, one striking his outstretched nose. It seems clear that the jury should have been allowed to consider whether his leaving his safe position and going to the door was contributory negligence. The judgment is affirmed. All concur.