13 S.W. 1044 (Mo. 1890), Furnish v. Missouri Pacific Railway Co.

Citation:13 S.W. 1044, 102 Mo. 438
Opinion Judge:Barclay, J.
Party Name:Furnish et al. v. The Missouri Pacific Railway Company, Appellant
Attorney:Adams & Buckner for appellant. Gates & Wallace for respondents.
Case Date:June 30, 1890
Court:Supreme Court of Missouri
 
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Page 1044

13 S.W. 1044 (Mo. 1890)

102 Mo. 438

Furnish et al.

v.

The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

June 30, 1890

Page 1045

[Copyrighted Material Omitted]

Page 1046

Appeal from Bates Circuit Court. -- Hon. D. A. DeArmond, Judge.

This was an action brought by Martha A. Furnish, being joined therein by her husband, to recover of defendant damages for injuries sustained by her while a passenger on one of defendant's cars. It appeared in evidence that on the sixth of February, 1886, she took passage on an accommodation train consisting of a locomotive and tender, a baggage car and two passenger coaches at Independence, Missouri, intending to go to Kansas City. When the train arrived within a mile and a half of Kansas City the locomotive and all the cars left the track on an embankment, and after leaving the rails the train tipped over and rested on its side.

The plaintiff introduced evidence tending to prove that at the point where the locomotive left the track a number of ties were broken off and splintered, some of them were decayed and rotten, and that the tire of one of the drive wheels, which had been placed thereon shortly before the accident, was three-eighths of an inch thicker than the one on the companion drive wheel, and that the difference in thickness had been called to the attention of defendant's assistant master mechanic, while the locomotive was in the repair shop shortly before the accident. The effect of this difference was to make one drive wheel larger than the other.

There was evidence that the south rail, at the point where the locomotive left the track, was bent inwardly toward the north rail.

Defendant introduced evidence tending to show that the ties, at the point where the train left the track, were sound ties, capable of holding the spikes; that the track at that point had been inspected daily for a long time; that it had been inspected two hours before the accident occurred, and there was nothing to indicate any defect in the track or roadbed. Defendant also gave evidence tending to prove that the engine was inspected by the engineer immediately before it left Independence on that trip, and it was found in perfect condition as far as he could discover.

The master mechanic, assistant master mechanic and engineer of defendant, all testified that the difference in the thickness of the tire would have no effect upon the safety of the locomotive, nor any tendency to throw it from the track. The assistant master mechanic denied that his attention had been called to the difference in the thickness of the tire by the witness who testified he had done so, and further testified that the latter had nothing to do with the engine when it was in the shop for repairs.

Plaintiff's evidence as to her injuries was that, after the car in which she was riding was derailed, she was found lying on the top of the car with her feet through a window and a cushion across her face. She was taken out of the wreck, and placed upon some cushions and afterwards removed to a hotel in Kansas City where she remained for twenty-five days. She was examined by a physician the afternoon of the accident. He testified that he found a great deal of tenderness in the small of the back, increased pain upon pressure radiating for several inches around the point of injury, with increased sensibility of the limbs, and that she was suffering a great deal from the fall. At that time there was no external evidence of an injury, but in a day or two afterwards there was some discoloration along the back and side. After her return home he saw her several times and found her but little improved.

The evidence of her family physician was to the effect that he had known and prescribed for her since 1879; considered her in delicate health for two or three years from that time, and up to within two years she had had attacks of neuralgia, often complaining of her back, but for eighteen months prior to her injury he had not prescribed for her; that her injuries had rendered her an invalid, unable to walk or attend to any of her household duties, and that he believed she would be unable to walk for a long period.

On cross-examination, he testified that, in his opinion, her spinal cord was not injured by the accident; that she had no indications of paralysis and that she would probably in time recover so as to get around, but would, in all probability, always have a weak back.

Another physician, called as an expert, testified that he had seen her twice, the first time in April, 1886, and the second time a week before the trial; that in some respects she had improved, in others not; that he believed her injuries were permanent, but that the probabilities were that she would get better; that she had got better.

Testimony was given by non-professional witnesses, that she had not been able to walk prior to the trial.

At the close of the evidence the court, of its own motion, gave the following instructions to the jury, without objection or exception by either party, viz.:

"A. If the jury believe from the evidence that, at the time said train was overturned, the employes of defendant were exercising, and had exercised, the highest practicable care, caution and diligence, which capable and faithful railroad men would exercise under similar circumstances, and that the train ran off, or was thrown from the track, and was overturned by cause or a cause, unknown to the defendant, its agents and servants, and which could not have been discovered by them, and the causes or cause of the accident removed or counteracted by the exercise of the aforesaid care, caution and diligence, then the plaintiffs cannot recover in this action, and the verdict should be for the defendant.

"B. The jury are instructed that, although they may believe from the evidence that some of defendant's ties on its roadbed were decayed or rotten, as described by some of plaintiff's witnesses, yet they should not find a verdict for plaintiffs on this ground, if they believe from the evidence that such condition of said ties did not cause the train to be thrown from the track, and plaintiff, Martha A. Furnish, to be injured, as complained of in the petition.

"C. The court instructs the jury that although they may believe from the evidence that one of the drive wheels of the locomotive, which was hauling the train in question, had been re-tired, and that the new tire had not been turned down, yet they cannot find for plaintiffs on this ground, unless it appears from the evidence, that it was necessary to have the same turned down to render it fit and proper to be used to avoid accident, nor can they find for plaintiff on this ground, if it appears from the evidence that the injury complained of did not result from defendant's failure to have said tire turned down."

Furthermore the following instructions were given at the instance of plaintiff, viz.:

"D. The court instructs the jury that if they believe from the evidence that the defendant corporation was engaged in the business of transporting passengers for hire upon a railroad operated by it, then the law denominates the defendant a common carrier; and it was bound to provide a reasonably safe track and roadbed, and reasonably safe and staunch road, worthy cars and engines, and careful employes to manage the same, so far as human skill, diligence and foresight could provide; and is responsible for all injuries resulting from slight negligence on the part of itself, its agents or servants; if therefore the jury believe from the evidence, that on or about the sixth day of February, 1886, the plaintiff, Martha A. Furnish, took passage on the...

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