Gibler v. Quincy, Omaha & Kansas City Railroad Co.

Decision Date04 February 1908
Citation107 S.W. 1021,129 Mo.App. 93
PartiesGIBLER, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
CourtMissouri Court of Appeals

Appeal from Knox Circuit Court.--Hon. Chas. D. Stewart, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

O. D Jones and J. G. Trimble for appellant.

(1) It was error to allow Doctors Morris and Jurgens to testify as to their opinion of plaintiff's condition from their subjective examination of him. The statements upon which they based this opinion were made by plaintiff at the time of an examination, was not before the court, and was not sworn to. In Livery Co. v. Railroad, 105 Mo.App. 556, the St Louis Court of Appeals quotes approvingly from State v Bowman, 78 N.C. 509; Taylor v. Railroad, 185 Mo. 239. (2) There is no evidence of negligence upon which to base plaintiff's instructions 1 and 2. Defendant's instruction No. 1 refused should have been given. Cooley on Torts (2 Ed.), p. 572; Wencker v. Railroad, 169 Mo. 598; Railroad v. Kenney, 41 Mo. 271; Perse v. Railroad, 51 Mo.App. 171; Breen v. Cooperage Co., 50 Mo.App. 212; Young v. Railroad, 93 Mo.App. 274. (3) Plaintiff would not have been injured if he had not taken the exposed position he did. If he had been in the bunk car, the one provided by the company for him to ride in, he would have been safe. His own negligence caused his injury. "The rule that the negligence of the plaintiff which contributes directly to the cause of the injury will prevent a recovery is without an exception or qualification." Hogan v. Railroad, 150 Mo. 55; Guffey v. Railroad, 53 Mo.App. 468.

Balthrope & Smith and F. H. McCullough for respondent.

"Where the thing is shown to be in the management of defendant or his servants and the accident is such as, under an ordinary course of things, does not happen, if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by defendant, that the accident arose from want of proper care." Clark v. Railroad, 127 Mo. 210; Gallagher v. Edison Illuminating Co., 72 Mo.App. 576; Madden v. Railroad, 50 Mo.App. 676. Appellant contends that respondent placed himself in a dangerous position and thereby contributed to the injury complained of, and for that reason it is not liable. This contention was fully and fairly presented to the jury under instructions No. 2, given on the part of plaintiff, wherein they were instructed that if they believed from the greater weight of the evidence, that plaintiff was riding in a place where he and his colaborers had been directed to ride, and further that it was as safe as in the bunk or dining car, also used by them, then he was not guilty of contributory negligence and under which instruction the jury found from the greater weight of the evidence that respondent was not guilty of contributory negligence, which was a question of fact, for the jury to pass upon. The jury had full description of both the place where appellant was when the accident occurred and where some of the bridge gang were on the train in the bunk car, which was ample evidence upon which to base their findings, of no contributory negligence on part of respondent as they did. Linder v. Transit Co., 103 Mo.App. 574; Tanner v. Railroad, 164 Mo. 180; Flynn v. Railroad, 78 Mo. 212; Buesching v. Railroad, 73 Mo. 229; Riska v. Railroad, 188 Mo. 188.

OPINION

GOODE, J.

--Plaintiff while a member of a carpenter and bridge gang of employees in the service of defendant company, was hurt January 19, 1906, by a fall from a car and instituted this action to recover damages for the injury. On the day named plaintiff and his gang, which had been working at Edina, a station on defendant's line, started to Brashear, another station twelve miles west of Edina. A construction train consisting of three cars accompanied the bridge crew. One of the cars was used for the carriage of material, another for tools and the third as a "bunk" and dining car. The latter was a box or inclosed car, but the other two were open flat cars. This construction train was taken up by a freight train which passed Edina going west, and attached near its rear end, say from five to seven cars from the caboose. The freight train was a very long one, consisting of sixty or more cars and, in truth, was about the length of two ordinary trains and was drawn by two engines. Both the engines were at the front of the train, but separated by a freight car. Six men, including the foreman, composed the crew of which plaintiff was a member. On taking passage for Brashear the foreman and two other members of the crew rode in the bunk car, but plaintiff and two others preferred to ride on the tool car and plaintiff stood instead of sitting while the train was moving. This tool car, though not inclosed, had a board around the sides, and at one end stood a tool house in which the tools of the bridge gang were carried. The railroad track west of Edina is uneven and with rather sharp rising and falling grades. In going down a grade, just as the engines had completed the descent and were ascending the next rise, which was short, the train broke in two, its separation being occasioned by the uncoupling of the two cars near the front. One consequence of the mishap was the portion of the train equipped with airbrakes stopped suddenly on account of the brakes setting automatically, while the cars to the rear continued to move forward under their momentum and crashed into the stationary part with the violence, one witness said, of two engines colliding. No serious damage was done to the train, which was recoupled and continued its trip. But when the rear section ran into the front section, the impact threw plaintiff, who was standing on the tool car, over the side of the car to the ground. He struck on his head and shoulders and was hurt, and would have fallen between the cars if another member of the crew had not grabbed his coat, thereby swinging him over the side of the car. Plaintiff went with his crew and worked the remainder of the day, returned home on a hand car in the evening and did not resume work for nineteen days afterwards. He consulted a physician about his injuries who found a bruise on his left shoulder; a swelling there and on the left arm, and difficulty in moving the arm, indicating certain muscles were injured. Plaintiff was treated for the injury, which the physician thought was a rupture of the muscles about the shoulder. During the trial the court appointed two physicians to make a physical examination of plaintiff, in order to ascertain what his condition was then--about a year after the accident. These physicians testified they found no external indications of an injury to the left shoulder and arm or the muscles thereabout; that their examination was both subjective and objective; meaning by the latter term an examination made by using their own senses, and by the former, listening to the history of the injury and previous symptoms narrated by plaintiff and his statement of his present symptoms. One of these physicians, Dr. Morris, while testifying they found no external signs of injury, said, from the questions they asked plaintiff and the responses received, he supposed plaintiff had an injury of the deltoid muscles and a detachment of the pectoralis major; muscles in the region of the shoulder and arm. But in connection with these statements, Dr. Morris said one could see his arm pained him when it was moved. On being asked if plaintiff claimed or pretended his arm hurt him, the doctor said: "It looked like it hurt him." Another physician appointed to make the examination, Dr. Jurgens, based his opinion exclusively on statements of plaintiff as to the pain felt in making certain motions with his arm. He agreed with Dr. Morris regarding the rupture of the muscles. Both physicians united in saying that by good treatment there might be a complete recovery and no permanent injury. Dr. Pugh, the physician who attended plaintiff shortly after he was injured, was present at the examination by the physicians appointed by the court and assisted them. While treating plaintiff Dr. Pugh came to the conclusion the tendons and ligaments about the shoulder were ruptured to some extent and his testimony regarding his conclusion at the time of the trial, from the examination in which he then participated, is equivalent to saying plaintiff would need good treatment and prolonged rest to recover permanently. He swore that when the examination was made, plaintiff complained of pain in moving his arm, and appears to have based his opinion as to the condition plaintiff was in then on the latter's statement of present symptoms.

Three assignments of negligence are made in the petition. Defendant and its officers and servants in charge of the train, had carelessly and negligently permitted the air brakes attached to the engine and cars, to become defective and unsafe; the engineers and servants in charge of its engines, wantonly and carelessly ran the same at a high and dangerous speed immediately after the train left Edina; and while the train was running under such speed, and as it approached the crest of a steep grade, the engineers and servants in charge of the engines, negligently and carelessly permitted the two engines to become uncoupled and separated from each other, thereby throwing on the air brakes and causing a sudden shock to the car on which plaintiff was, which threw plaintiff to the ground with great force and violence. A witness said the engineers handled the train very roughly. The three cars of the construction train were not equipped with air brakes, and there was testimony that the separation of the train broke the connection of what air brakes were on the...

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