Opinion
October 3, 1928.
NEGLIGENCE: Instruction: Ordinary Care: No Evidence. For the reasons set forth in Hardcastle v. The Pullman Company, 320 Mo. 1239, Held that the giving of an instruction telling the jury that if the plaintiff passenger failed to exercise ordinary care for his own safety in alighting from the sleeping car upon the icy platform he could not recover, was error, there being no evidence to sustain such instruction, and the trial court therefore did not err in granting plaintiff's motion for a new trial on the ground that the giving of such instruction was error.
Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.
AFFIRMED.
E.T. Miller and A.P. Stewart for appellant.
(1) Instruction 4 was a correct and proper instruction. Under the circumstances disclosed by the evidence, the measure of defendant's duty with respect to the station platform was the exercise of ordinary care. St. Louis Ry. Co. v. Fick (Okla.), 149 P. 1126; Polland v. Railway (Me.), 92 A. 38; Connell v. Oregon Short Line (Utah), 168 P. 337; Beltz v. Railway (N.Y.), 119 N.E. 81; Palmer v. Penn. Co. (N.Y.), 18 N.E. 859; Pratt v. North German Lloyd S.S. Co., 184 F. 303; Fearn v. Ferry Co. (Pa.), 22 A. 708; Heck v. Railway (Mont.), 196 P. 521; Pittsburg Ry. Co. v. Rose (Ind.), 79 N.E. 1094; Louisville Ry. Co. v. O'Brien (Ky.), 174 S.W. 31; Serviss v. Railway (Mich.), 135 N.W. 343; Bernhardt v. Railway (Pa.), 28 A. 140; Chicago Ry. Co. v. Owens (Ark.), 177 S.W. 8; Bassell v. Hines, 269 F. 231; Moreland v. Railway (Mass.), 6 N.E. 225; Kelley v. Railway (N.Y.), 20 N.E. 383; Williams v. Railway, 288 Mo. 11; Taylor v. Railway (Mo. App.), 240 S.W. 512; Robertson v. Railroad, 152 Mo. 382; Joyce v. Railroad, 219 Mo. 344; Fullerton v. Fordyce, 121 Mo. 1. (2) Instruction 9 was a correct and proper instruction. The law imposed on plaintiff the duty to exercise ordinary care for his own safety while alighting from the train. The evidence adduced on behalf of plaintiff disclosed that the presence of ice on the station platform was observable to passengers alighting from the train. What they saw, plaintiff could have seen by the exercise of ordinary care. It was a question for the jury whether plaintiff did exercise ordinary care. If they found he did not, they were justified in returning a verdict for defendants. Plaintiff's failure to exercise ordinary care could be taken advantage of by defendants, although not pleaded. 6 Cyc. 636; Tannehill v. Railway, 279 Mo. 158; Sissel v. Railroad, 214 Mo. 515; 5 Ency. Plead. Prac. 13. (3) Under the evidence, the jury were justified in finding in favor of defendant on the ground that it exercised due care to warn plaintiff of the presence of ice on the station platform before he attempted to alight from the train, and hence that it was not negligent. The verdict being supported by the evidence and being for the right party, error, if any, in giving instructions, was harmless. Waldmann v. Const. Co., 289 Mo. 622; Baustian v. Young, 152 Mo. 317; Cass County v. Bank, 157 Mo. 133; Moore v. Railway, 176 Mo. 528; Mockowik v. Railroad, 196 Mo. 550; Henry v. Railway, 113 Mo. 525.
Koerner, Fahey Young for respondent.
(1) It was error to give Instruction 4 on behalf of defendant. The duty to exercise ordinary care to keep the station platform in a reasonably safe condition for plaintiff's passage thereover was not the only duty the railway company owed plaintiff. It also owed him the duty to exercise the highest degree of care to provide a safe place on said platform to alight. Timpson v. Railway Co., 52 Hun. 489, 5 N.Y.S. 684; Fillingham v. Transit Co., 102 Mo. App. 573; Craig v. United Rys. Co., 175 Mo. App. 616; Rearden v. Railroad, 215 Mo. 105; Payne v. Davis, 298 Mo. 645; Taylor v. Railway Co., 311 Mo. 604; Gott v. Railways Co. (Mo.), 222 S.W. 827; Cossitt v. Railway Co., 224 Mo. 97. (2) The Oklahoma case cited by defendant is not controlling in this case. Since the law of Oklahoma was not pleaded or proven at the trial, it will be presumed that the law of Oklahoma is the same as that of Missouri, and the Missouri cases will govern. Biggie v. Railroad Co., 159 Mo. App. 350; Shelton v. Railway Co., 167 Mo. App. 404. (3) The ice should have been removed from that part of the station platform upon which the stepping box was placed. 10 C.J. 1171, sec. 1534; Fillingham v. Transit Co., 102 Mo. App. 573; Taylor v. Mo. Pac. Railroad Co., 311 Mo. 604; Craig v. United Rys. Co., 175 Mo. App. 616. (4) It was error to give Instruction 5 on behalf of defendant. The duty of the carrier to discharge the passenger at his destination in a safe manner and at a safe place is the same high degree of care required of the carrier for the safety of his passenger while the passenger is in transit. It follows that the carrier should have used this high degree of care to warn plaintiff before he alighted of the presence of ice on the station platform, and to have rendered him such reasonable assistance, as the circumstances required, to enable him to leave the train safely. The railway company employees in Tulsa had full knowledge of conditions. The plaintiff inside the train did not. To merely warn under such circumstances would not discharge its duty to a passenger. Cases cited under Point 1.
This is a companion appeal to that of J.D. Hardcastle, Respondent, v. The Pullman Company, a Corporation, Appellant, 320 Mo. 1239, decided at this term, being the other of the separate appeals taken by the defendants from an order granting plaintiff a new trial in case of J.D. Hardcastle v. St. Louis-San Francisco Railway Company and the Pullman Company. Our statement in the Pullman Company opinion of the contents of the record filed and our conclusions of law thereon is here referred to and made a part of this opinion.
In the case below, plaintiff's motion for a new trial was sustained "as against defendants, St. Louis-San Francisco Railway Company, on the seventh and twelfth grounds thereof, to-wit, that the court had erred in giving instructions numbered four and nine at the instance and request of said defendant." In the Pullman Company appeal we ruled that the trial court's action in the first instance in giving the instruction above referred to as instruction numbered 9 was reversible error and that the trial court did not err in sustaining plaintiff's motion for a new trial on that account. This ruling applies with no less force to the defendant St. Louis-San Francisco Railway Company, and we deem it unnecessary to rule upon other grounds referred to in plaintiff's motion for a new trial or in the trial court's order and judgment sustaining the same.
For the reasons above stated, and more fully set forth in our opinion in the Pullman Company appeal, the judgment sustaining plaintiff's motion for a new trial as to defendant St. Louis-San Francisco Railway Company is affirmed. All concur.