Hurck v. Missouri Pac. Ry. Co.

Decision Date28 June 1913
Citation158 S.W. 581
PartiesHURCK v. MISSOURI PAC. RY. CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by John Hurck against the Missouri Pacific Railway Company. Judgment for defendant. From an order granting a new trial defendant appeals. Affirmed and remanded for a new trial.

This is an action to recover damages for personal injuries which plaintiff claims to have received while a passenger on one of defendant's trains in the state of Kansas. Trial was had in the circuit court of the city of St. Louis, resulting in a verdict and judgment for defendant. The trial court sustained plaintiff's motion for a new trial on the ground that instruction VI, given at defendant's request, was erroneous, and defendant duly perfected its appeal to this court.

That portion of plaintiff's petition which charges negligence on the part of defendant is as follows: "Plaintiff states that through the negligence of defendant, the coach in which plaintiff was riding as a passenger was derailed, and left the track, thereby causing plaintiff to be jerked and thrown from his seat, striking portions of the car and injuring him in such manner as to rupture him."

The petition further alleges that plaintiff was a passenger on defendant's train, and that he has suffered and will continue to suffer great pain and anguish of body and mind by reason of said injury, was rendered unable to attend to his regular duties, and has suffered and will continue to suffer great loss of earnings, and that he is permanently injured to the extent of $10,000, for which sum he asks judgment.

The evidence on the part of plaintiff tends to show the following facts: On February 18, 1908, at about 8:30 a. m. at Jamestown, Kan., plaintiff became a passenger on and boarded one of defendant's trains to go to Jewel City, Kan. At the time there was a heavy snow on the ground, considerable snow was falling, and a high wind blowing. After the train had gone a distance of about four miles it became stalled in a snowbank, and remained there until about 4:30 p. m., when a gang of 20 or 30 men came and began shoveling the snow off the track behind the train. The train crew, believing it impossible on account of the snow for the train to proceed further, determined to back the train to Jamestown. Plaintiff testified that after the men would shovel a while the train would be caused to back and "buck up against the snow," and in that manner push its way towards Jamestown. The train consisted of an engine, one freight car, containing a water tank with an extra supply of water for the engine, and a combination coach containing compartments for baggage, mail, and passengers. The passenger compartment was at the rear end of the coach, which, however, constituted the front end as the train backed towards Jamestown. There were 12 or 15 passengers on the train. Plaintiff further testified that in the manner above described the train backed a distance of two or three miles; that it was then about 8 o'clock p. m., and most of the shovelers refused to work longer, and that he expected the train to remain there all night; that he was sitting on the right-hand side of the coach, facing Jamestown, and had fallen asleep, when he was awakened by being thrown against either the back of the seat or the window sill, and that when he got up he felt a pain in his lower abdomen, lasting about five minutes; that his being thrown in the above manner was occasioned by the derailment of the wheels of the truck nearest Jamestown; that said derailment left the right side of the coach upon which plaintiff was seated two or three feet lower than its opposite side; that after the accident plaintiff put on a pair of leggings, wrapped himself up, and, with several other passengers, walked through the deep snow from the place where the coach was derailed to Jamestown, a distance of about a mile and a half. When the derailment occurred the snow had stopped falling and the wind had allayed. The accident happened on Tuesday, and on the following Saturday night plaintiff first examined himself and discovered an injury in the form of a lump on the left side of the lower abdomen. He made no statement to any of the passengers either the day of the derailment or the next that he had been injured by the derailment. About 11 days after the derailment plaintiff returned to St. Louis, his home, and called upon a physician for treatment. The doctor prescribed the use of a truss, and advised plaintiff not to do any heavy work in the way of lifting. That by reason of the injury he was unable to perform his usual work, which was that of motorcycle repairing, that his services were worth about $18 per week, and that his loss of wages had continued up to the time of the trial. It also developed from the cross-examination of plaintiff that he carried two accident policies at the time, each policy providing for a weekly indemnity for partial debility of $12.50 per week, and that he settled with one accident company for $60, and with the other for $75.

Plaintiff's physician, Dr. Dorsey, testified that when he first examined plaintiff, the latter part of February, 1908, he found him suffering from inguinal hernia, that the same might have been produced by a blow such as plaintiff claimed he received by being thrown against a car seat or window sill, and that usually a patient cannot tell when hernia first occurs, and might not know of it for some time afterwards, that the injury would be permanent unless cured by surgical operation. Plaintiff testified that he had not been afflicted with hernia or rupture prior to the day of the derailment.

Defendant's evidence tended to show that the snowstorm referred to was what was known as a "Kansas blizzard," and that at the time the train left Jamestown the conductor had some doubts about being able to get the train through on the trip; that the day was cold, and the snow became frozen soon after falling. One of defendant's witnesses, Rev. Bennett, testified that the snowstorm was not extraordinary, but that they have lots of storms like that out there.

Defendant's testimony contradicted plaintiff's testimony with reference to the force of the jar caused by the derailment of the coach. The conductor testified that at the time of the derailment he was outside, walking along by the side of the coach, and that he had a lantern in his hand for the purpose of signaling the brakeman who had charge of the air brake, and that the train was pushing back at the rate of about three miles an hour, that the snow and ice accumulated to such an extent under the wheels that the wheels were lifted so as to permit their leaving the rails, that when they left the rails he signaled the brakeman to apply the air, and that the train was stopped within a few feet, and that the derailment caused very little jarring.

Five or six of the passengers testified for defendant to the effect that the jerk or jar caused by the derailment was not sufficiently severe to cause a man standing up in the car to be thrown down, or to cause a man sitting down to be thrown out of his seat, and that they did not see anybody thrown down while standing, or thrown from their seats. One witness for defendant, however, testified that the jar raised her off her seat, but that by grasping the seat in front of her she was enabled to regain her position. Another witness for defendant testified that he was standing up when the derailment occurred, and that to the best of his recollection he had to hold on to the seat to keep from falling.

The depth of the snow at the place of derailment, as fixed by defendant's witnesses, varied all the way from two to nine feet. It seems there was a railroad cut at that point, and that the snow drifted considerably thus increasing its depth in the cut. Some of defendant's witnesses testified to the effect that they were "butting" or "ramming" the snowdrift with the coach when the derailment occurred; that the train would be pulled forward about a hundred feet and then backed or rammed into the snowbank with considerable force.

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    ...of rebuttal arising in the reply to the defense of fraud. Taylor v. Telegraph Co., 181 Mo. App. 288, 298, 168 S. W. 895; Hurck v. Railroad, 252 Mo. 39, 47, 158 S. W. 581. The judges and text-writers had constantly used the term "burden of proof" and "shifting of the burden of proof" back to......
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