Haas v. St. Louis & San Francisco Railroad

BLAND, P. J. (after stating the facts.) 1. Respondent, over the objection of appellant, was permitted to show what his earnings had been during the spring-seasons for four years previous to the year of his injury. He had been in the same business these previous years, but was working for another firm engaged in the millinery business. The admission of this evidence is assigned as error. In Lewis v. Insurance Co., 61 Mo. 584, it was held that in a suit by an agent against an insurance company for his wrongful discharge, an estimate of his probable earnings after his discharge, derived from proof — 85 — of the amount of Mg collections and commissions before his discharge, without other proof relating thereto, is too speculative to be admissible. In Paul v. Railroad, 82 Mo. App. l. c. 505, it was ruled that in a personal injury case the average earning’s of the defendant, where he has no fixed salary, are proper to go to the jury on the extent of his loss. Substantially the same ruling was made in Pryor v. Railroad, 85 Mo. App. 367. See also Griveaud v. Railroad, 33 Mo. App. l. c. 466, where the same ruling was made. These cases (cited by respondent) are not in point. Respondent was employed at a fixed salary, to be increased to the extent of five per cent on all goods sold by him during the year in excess of $25,000. Evidence of his loss of earnings, therefore, should have been confined to what, if anything, he lost of his salary on account of the injury. Evidence of what, he had made in previous years was inadmissible for this purpose. Respondent’s third instruction predicated on this erroneously admitted evidence should not have been given. 2. Error is assigned in the giving of the following-instruction for plaintiff, in that it assumes that the presence of snow and ice upon the steps and platform made them unsafe: “1. If you shall believe and find from the evidence that on or about the fourth day of February, 1905, the plaintiff boarded one of defendant’s trains at Arkansas City in the State of Kansas, to take passage thereon to Winfield in said State, and paid his fare for said passage; and if you shall further believe and find from the evidence that when said train arrived at plaintiff’s destination, the defendant or its agents and servants had negligently allowed the platform or steps of the car on which the plaintiff was a passenger to become covered with hard, uneven, lumpy and slippery sleet, snow or ice and that the condition of said platform or steps was known to the defendant, its agents or servants, or had — 86 — they exercised reasonable care under all the circumstances shown in evidence as defined in instruction No. 11, it would have been known to them, in a time sufficient, had they exercised such reasonable care under the circumstances, with the appliances at hand for the purpose to have removed said sleet, snow or ice or otherwise to have rendered said platform or steps safe for plaintiff’s use; and if you shall further believe and find from the evidence that plaintiff, while in the exercise of reasonable care for his own safety, and while attempting to alight from said train and car, and while using said platform and steps, slipped and fell upon said platform and steps, and to the ground and was injured, then your verdict shall be for the plaintiff.” The dangerous condition of the steps was a fact in dispute. In effect, the jury were told that if they found from the evidence the steps and platform were covered “with hard, uneven, lumpy and slippery sleet,snow or ice,” they were in a dangerous condition. The instruction would have been more accurate had it been left to the jury to find whether the steps were dangerous. But there is no dispute about the fact of the ice and sleet being on the steps and platform. That their icy, slippery condition made them dangerous to passengers getting on and off the train hardly admits of doubt, and appellant was not prejudiced by the instruction given in the form it was. [Reno v. City of St. Joseph, 169 Mo. l. c. 658, 70 S. W. 123; Moore v. Railroad, 100 Mo. App. 665, 75 S. W. 176.] The instruction is open to criticism in that it failed to direct the jury that the ice, etc., upon the steps and platform caused respondent to fall. 3. Error is assigned in the giving of the following-instruction for respondent: “You are instructed that as to providing the plaintiff with a safe place of egress from its car, it was the duty of the defendant to use the utmost degree of prac — 87 — tical care, diligence and foresight, under all the circumstances to haye the platform and steps of its car free of danger from hard, uneven, lumpy and slippery sleet, snow or ice and that the defendant is liable in this case if you find from the evidence that its agents or servants were guilty of negligence in that respect which directly contributed to cause plaintiff’s injury.” The criticism made is that the effect of the instruction was to direct the jury that if both appellant and respondent were negligent, respondent was entitled to recover. Contributory negligence was pleaded and appellant’s evidence tends to show that respondent attempted to alight from the car with a handbag in one hand and an umbrella in the other, and that the brakeman was at hand and would have assisted him had he asked it. This evidence tends to prove respondent was negligent. We think the instruction is erroneous in ignoring the defense of contributory negligence, and the error is not cured, as contended by appellant, by the giving of the following instruction for appellant: “5. You are instructed that if you find and believe that the day was cold and that it was raining or sleeting while the train was en route and that the ice complained of accumulated en route, then it was not the duty of the employees of the railroad company to remove said ice after the train arrived at Winfield before permitting passengers to alight.” 4. Error is also assigned in the refusal of the court to give the following instructions asked by appellant: “5. The court instructs the jury that carriers of passengers are not insurers of the safety of passengers, and railroad companies engaged in carrying passengers are not liable for inevitable accidents, nor for every possible casualty resulting in injury to a passenger — they are only liable where such injury results from the negligence of the railroad company or its servants, and in cases of this kind, negligence is not presumed from — 88 — the proof of an accident and an injury, but the passenger is required to establish by a preponderance of the evidence that the injury resulted from the failure of the carrier to exercise due care in the premises.. And in this case, if you find and believe from the evidence that the day was cold and sleety, and that ice accumulated on the car steps en route, then you will not be authorized to find that the employees were negligent in not removing or attempting to remove said ice en route, nor were they required to do so after the train arrived at Winfield and before permitting passengers to alight. 4. You are instructed that railroad companies as common carriers of passengers are not insurers and are not required to keep up a continuous inspection of its appliances in route, and are not responsible for accidents resulting from agencies over which they have no control, such as storms, in route. Therefore, if you find and believe from the evidence that the ice or snow complained of fell in route and was due to the condition of the weather prevailing, then the railroad company can not be charged with negligence in failing to remove said ice or snow in route or" at Winfield before' permitting passengers to alight. “9. You are instructed that the defendant was not negligent- in running cars not provided with vestibuled platforms, and you will not eon rider that fact as an element of negligence in this case.” Refused instruction No. 5, we think goes too far in respect to releasing appellant from the duty to keep its platform and steps in a reasonably safe condition for passengers to get on and off its cars. Conditions may arise (the evidence tends to prove they were present on the day respondent was injured), when it would be the company’s duty, en route, to remove ice, etc., from its steps for the safety of passengers in getting on and off its cars. [Weston v. New York Elevated Railway Company, 73 N. Y. 595.] Refused instruction No. 4, is open — 89 — to the same criticism. It seems to us that in such circumstances, the duty of the company should he measured by the danger of the situation, and if it is apparent to a reasonably prudent person that passengers cannot get on or off the cars, exercising reasonable care, without danger of falling, the steps and platform should be put in such condition as to enable them to do so, even though the train must be delayed for that purpose, for it is of more importance to the passenger that he arrive safely than that he arrive at his destination on scheduled time. The ninth instruction should have been given as a matter of caution to the jury not to infer negligence from the mere fact that the cars were not provided with vestibules; The judgment is reversed and the cause remanded. All concur.