McDonald v. Kansas City & Independence Rapid Transit Railway Co.

DIVISION ONE. Black, P. J. The plaintiff brought this suit to recover $5,000 damages for the death of her husband. The trial court sustained a demurrer to the plaintiff’s evidence, and this ruling presents the only question before us. In other words, the question is, whether plaintiff made out a case for the jury. The defendant owns and operates a railroad from Kansas City to Independence, a distance of about eight or ten miles. The cars are propelled by steam power, and the road is called the dummy line. There are two tracks, the south one being used by trains going from Kansas City to Independence, and the north one by trains going west. McDonald, the deceased, resided at a station on the road called Evans-ton. He had resided at that place for five years next before the accident, and was familiar with the movement of the trains on the road. According to the testimony of the plaintiff, he went west to a station on the road called Sheffield, on the day of the accident, [41] The other evidence shows that he was on a train returning home about 8 o’clock in the afternoon of the same day. Just before reaching Evanston, he was sitting at the front end of the rear ear, engaged in conversation with the conductor. One witness says he heard them say something about grading. It appears the deceased had been engaged in that business. Aside from this it does not appear what they were talking about. The train did not stop at the Evanston station, but passed by from one hundred feet to two hundred yards, as variously estimated, before it stopped. As the train checked its speed and was coming to a halt, the conductor and the deceased stepped out on the platform of the rear car. It seems the deceased got off the platform on the north side, while his train was yet in motion, and was immediately struck and killed by a train going in the other direction on and over the north track. It does not appear whether there was or was not a platform at this station, nor does it appear on what side passengers going east usually alighted. The witness Golden, who was in the rear car, says the train slowed up, -and the conductor and McDonald went out on the platform. He then looked out of the window and saw the flash of the headlight on the other train. .The conductor came in and said McDonald was killed. Gick, another passenger on the same car, says he saw the conductor and McDonald talking at the front end of the car; that when the train slowed up they 'went out at the front end; that the conductor had a lantern in his hand, and that the conductor stepped back and reported the death of McDonald. This witness says the train was moving. He says McDonald went out first, but he does not know what occurred on the platform. Greenville Crisp, a passenger on the same train, [42] says he saw McDonald and the conductor on the platform, and that the conductor was then lighting McDonald off.' Being asked what the conductor did, he answered: “He kind of leaned over and held his lantern out that way (indicating), and I saw him and McDonald go down, and I turned around and heard the explosion.” This witness thinks the train was yet in motion. On cross-examination, he said he saw McDonald go out on the platform and get off on the step, and that he saw the conductor holding a lantern to light McDonald down the steps, but he did not see McDonald get off on the ground. The conductor was not called as a witness. . . While the plaintiff’s evidence leaves many things open to further explanation, we think she made out a prima facie case. As said in Lambeth v. Railroad, 66 N. C. 498: “He [the deceased] had a right to expect that the, defendant had employed a skillful and prudent conductor, who would not expose passengers to dangerous risks, and who had experience and knowledge in his business, sufficient to correctly advise and direct passengers as to the proper time and manner of alighting safely from the train.” In that case there was evidence tending to show that the conductor said to the passenger while the train was passing a platform: “Now is your time, jump.” See, also, Bucher v. Railroad, 98 N. Y. 128. The deceased was beyond doubt a passenger on defendant’s train, and the defendant owed him that high degree of care due from carriers to their passengers. It does not appear that the conductor in words advised the deceased to get off at the particular time and place, nor does it appear what, if anything, the conductor said to the deceased when they were both on the platform. But the evidence does tend to show that the conductor went out on the platform with the deceased, and so held his lantern as [43] to aid and assist deceased in getting down the steps leading to the north track, and this too while the train was still in motion. A jury might well find that such acts on the part of the conductor, unexplained as they are, amounted to and were a direction to get off then and there and on that side of the train. It does not appear that the conductor knew of the train then. approaching from the other direction, but the fact that he did not know of the close proximity of that train can not defeat the plaintiff’s action; for it was the duty of the defendant to operate its trains so as to allow passengers to alight with safety. It is certainly negligence on the part of a railroad company for its servants in charge of a train to induce a passenger to get off at a dangerous place, and it may well be inferred from the evidence that the deceased got off at the particular time and place by the advice and direction of the conductor. We can not escape the conclusion that there is evidence of negligence on the part of the defendant. The question of contributory negligence was also one for the jury to determine under the circumstances disclosed. The case is unlike that of Weber v. Railroad, 100 Mo. 198. There the injured person jumped from the car while it was going at full speed, in front of an approaching train, and that, too, of his own volition. Though the train now in question was moving when deceased left it, still it was moving slowly, and it can not be said, as a matter of law, that he was guilty of negligence because the train was still in motion. If the deceased saw the approaching train, or knew it was in close proximity, then the plaintiff should not recover, but there is no evidence that he saw it or knew it was approaching. Had he looked forward before leaving the car step he would have seen it, but we can not say he was negligent as a matter of law, because he [44] did not look. It must be remembered that the train had passed the station; and, as the case now stands, it may be inferred that in getting off as he did, he acted on the advice and under the direction of the conductor, on whose advice he had a right to rely, unless the danger was a known, open and obvious one. Our conclusion is that the case was one for the jury on both branches. In reaching this conclusion, we speak of the case as made by the evidence before us. Should a different state of facts appear on a new trial, the question whether a demurrer to the evidence should be sustained must be determined from the facts as they shall appear. IN BANC. Per Curiam. — The foregoing opinion, prepared by Black, C. J., in division number 1, is adopted as the opinion of the court in banc. In accordance therewith, the judgment of the circuit court is reversed and the cause remanded. Brace, C. J., Gantt, Macearlane and Burgess, JJ., concurring; Barclay, Sherwood and Robinson, JJ., dissenting.